By Susan P. Mauk and Jamie Shropshire
Recently, state bars and the American Bar Association have promoted wellness initiatives for their members, championing the value of meditation, yoga, and walks in the park. But why?
As two members of the Idaho Lawyer Assistance Program Committee, we have seen the tragedy of substance abuse and mental health issues that paralyze many of our colleagues and the positive impact of focusing not only on intervention but promoting sustainable wellness. This article describes what this is and how anyone can benefit from practicing the techniques associated with it.
Recently, the results of two self-reporting surveys of lawyers, judges, and law students were released. The first was conducted by the Hazelden Betty Ford Foundation in 2016 of 12,825 lawyers and judges; the second surveyed 11,300 law students from 15 law schools from various regions of the country – approximately 3,400 students responded.
What both surveys found is that we suffer from a much higher rate of alcoholism, drug abuse, and mental health issues than the general population.
Based on their responses, law students need to be considered both for intervention and for sustainable wellness. Approximately 17% of students were diagnosed with depression and over 35% were diagnosed with mild to severe anxiety. Additionally, 21% of law students admitted to problem drinking. Law students in their first year have the same incidence of alcohol problems as the general population of a similar age, approximately 10%. At the end of their second year, the survey responses indicate that the rate increases to 21%. [ii]
We have the highest rate of alcoholism of any profession. Surgeons, who would seem to be in a profession that should have a comparable rate of alcohol problems have a rate of just 15%. What explains the difference. Certainly, the adversarial nature of our jobs is a significant factor. Surgeons don’t have another surgeon on the other side of the operating table arguing how badly the operation is going and how the surgeon’s technique and procedures are all wrong.[iii]
We also, tragically, have a high rate of suicide. Nationally, that rate is 14 per 100,000. [iv] The Idaho State Bar of about 6700 members has been impacted by five suicides of colleagues in the last two years.
What all this information tells us is that, at every level of our profession, we don’t ask for help.
We don’t ask for help primarily, as both surveys tell us because we fear that others will find out and we fear the loss of our license to practice law or the loss of our ability to get a license to practice. [v] Only 7% of attorneys seek help for alcohol or drug use and only 22% of those used programs that were designed for legal professionals, even though it appears, from the information available, that programs specifically designed for lawyers have a better rate of success. [vi]
Yet, almost every state has a committee or organization that assists attorneys with substance abuse, other addictions, and mental health problems. Those organizations and committees serve members of the legal profession, their families, and law students free of charge, anonymously, and confidentially. They are neither related to nor do they report to Bar disciplinary counsel.
So, the answer to the question, “Why wellness?” seems to be obvious. At best we ignore our problems, or we simply accept the fear and anxiety and their consequences. At worst, we embrace them by continuing with practices and procedures that promote their tragic results.
In the years since the Hazelden report, [vii] mechanisms such as interventions and programs for recovery specifically designed to address the legal community abound; yet what is increasingly clear is that these approaches are not sustainable without wellness as a foundation.
What is Wellness?
What is wellness and why has it received so much attention in recent years? Wellness is a process, a way of orienting oneself towards life, examining actions and responses as they impact one’s body, mind and, in some cases spirit. Wellness is about feeling good emotionally and physically and using such tools as diet and exercise to get there.
Wellness is not only the absence of disease. It is about how one listens, identifies needs, takes care of oneself, and connects to the world one lives in. It is about making small, incremental changes in how you eat, sleep, communicate with others, or handle stress – in general, how you navigate your life.
There is no “right” way to be well. We live in a world with high-pressure work environments, toxic exposures, social and familial stress, and medication overuse (to name but a few of the challenges of modern life). Many wellness authorities have identified several areas of practice to look at wellness in a holistic, multifaceted way.
- Meditation: a state of quiet contemplation that involves turning your focus inward for a few minutes at a time to access a deeper reality.
- Visualization: re-patterning your energy, feeding your brain new images to replace the old ones, retraining your thinking.
- Pleasurable Activities: engaging in activities that bring enjoyment to your life.
- Conscious Eating: paying attention to what you eat to be consuming healthy and nutritious foods.
- Exercise: finding a routine in which you can do 30 to 45 minutes a day, three to five times a week which leaves you feeling more invigorated and alert; could include cardiovascular activities, strength training, yoga, tai chi, etc.
- Self-Work: to look at where we are in life, to set some goals for where we would like to be and to chart a course as to how to get there.
- Spiritual Practice: bringing us to identifying with something larger than ourselves.
- Service: delving into some form of giving back, and to feel useful and grateful to have something to give.
By exploring our behavior in any one of these areas, we can begin to know our bodies, to understand our minds, and, for some, to explore a spiritual path.
Why the surge in curiosity about sustainable wellness in the past 10 to 15 years? As the life expectancy in the United States has increased, people want to know how to live out these additional years in greater health; and while the world has never witnessed a time of greater promise for improving human health, we don’t want to rely on technology alone to ensure a better future. Cultivating wellness skills can help attorneys lead healthier lifestyles in ways of their own choosing. Medical advances are only one part of the picture; cultivating wellness can contribute enormously to our mental, physical, and emotional wellbeing.[viii]
Some research suggests that before they enter law school, some law students are healthier, both physically and mentally, then the general population. They generally start school with a strong sense of their own values and a sense of themselves. Law school, it is observed, encourages students to take the emotion out of their decisions; “once you start reinforcing that with grades and money, you aren’t just suppressing your emotions, you are fundamentally changing who you are.”[ix]
If the data on law students is discouraging, these findings are compounded when we look at young lawyers especially during the first 10 years of practice. They, too, are caught up by the demands of deadlines, the unreasonable expectations of clients, billing pressures, long hours, and the pressure to perform. Many are still grappling with law school debt, beginning to raise young families, and find themselves with an increase in depression, pessimism, and a kind of isolation they didn’t expect. “Lawyers are a help-rejecting profession,” one author comments, mistakenly believing that if they are vulnerable, they are weak. [x]
The Hazelden study and others which followed identified lawyers’ perfectionism and pessimism as qualities contributing to their vulnerability to depression and stress. They don’t like to appear needy or dependent and will tend to sacrifice healthy habits such as eating healthfully or getting enough sleep to meet unrealistic expectations.
Their perfectionism leads to an overdeveloped sense of control so that if things don’t go as planned, they blame themselves. As “paid worriers” they tend to see problems everywhere, even if they do not exist. As pessimists, they tend to see negative events as persistent, pervasive, and permanent.
As Will Meyerhofer, an attorney turned clinical social worker comments, “The official number is that something like a gazillion lawyers are stressed out and that amounts to a bajillion percent of the profession.” Is it any wonder that there is a greater incidence of both suicidal ideation and actual suicides among the legal profession than among non-lawyers?[xi]
Where does wellness come into play? The good news is that with greater awareness of these patterns has come widespread support for wellness programs both at law schools and bar associations around the country. There are meditation classes specifically designed for lawyers, online meditation programs, podcasts, and blogs, as well as instructional DVDs.
There are mindfulness training programs which provide comprehensive approaches to relieve stress, enhance daily living, along with toolboxes which contain simple exercises one can do on a daily basis which produce powerful results. Techniques of mindfulness that focus on paying attention to the present moment improve one’s ability to make decisions; “a mindfulness practice makes us better…ethical decision-makers. And that translates into better lawyering.”
Eating more healthily may mean learning the value of a lean, green, and clean diet as well as how to put together a low carbohydrate, moderate protein, and high-fat combination; making such changes as finishing your last meal two to three hours before you go to bed, and making mealtime enjoyable, not something you race through while sitting at your desk.
For many, doing multiple things at once may seem like a normal, even practical way to manage a busy life, but juggling several tasks at once takes a toll on our wellbeing. Actions which move you away from multitasking to focus on one thing at a time, such as doing progressive muscle relaxation exercises which could take minutes, learning deep breathing exercises which can be helpful even if we do them for brief periods of time, journaling on a regular basis, or finding a physical exercise routine which helps to release endorphins, help to cultivate “learned optimism,” a predisposition to see things from a more positive perspective. All of these behavioral changes can lead to greater engagement and satisfaction with life.
Lawyers sometimes wear their stress as a badge of honor as though to be on edge much of the time means one is successful. We do know that those who experience a lot of anxiety, who are frequently overwhelmed, don’t sleep well and are often fatigued may be candidates for long-term depression. Seeking help before you really need it, whether by embracing any of these techniques or obtaining the assistance of a licensed behavioral health professional can step in the right direction.
A Signa study years ago identified the loneliness and isolation experienced by members of the legal profession as a greater predictor of early death than smoking.[xii] Practicing gratitude, fostering mindfulness, cultivating genuine friendships, developing emotional and cognitive flexibility all contribute to self-care and can put you on a path to wellness.
For the past several years, the Idaho Lawyer Assistance Program has broadened its scope to promote wellness in members of the legal profession. The demands of the profession are not going to change; however, there are ways to make a difference which will have a positive impact on individual practitioners and the profession as a whole.[xiii] Practicing wellness through even the smallest positive change starts a ripple effect which soon impacts others to do the same. Purpose is not discovered; it comes from following your passions and interests and doing the small things that are important to you. And we are all entitled to a purposeful, healthy, and satisfying life.
A Healthy Profession
Having looked at what we can do for ourselves, are there things that we can do as a profession to lessen the impact of anxiety, depression, and substance abuse. Some of the codes and standards that we have adopted, if followed with our collective health in mind, can help.
There are several sections of the Idaho Rules of Professional Conduct that, if rigorously observed, could assist this effort. The Preamble states: “A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others.”[xiv] Rule 1.3, Commentary, paragraph 1: “The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”[xv] Other notable rules that could lower stress in our daily interactions if practiced are Rules 3.3, 3.4 and 3.5.
Are there other procedures and practices that we should examine. Are there methods other than billable hours for evaluating an attorney’s performance for the purposes of promotion and compensation?
Should we be requiring mediation for many issues that could be solved by ADR, rather than continuing with stressful and exhausting courtroom battles?
What about other procedures that have been adopted regarding our behavior toward each and the public?
The Standards of Civility state that: “An attorney’s conduct should be characterized at all times by personal courtesy and professional integrity in the fullest sense of those terms. (emphasis added)[xvi]. What would the immediate and long-lasting effect if we always treated each other with personal courtesy? There are those who are probably thinking that zealous advocacy doesn’t allow that, but is that really a reason not to practice civility or is just an excuse. “Uncivil, abrasive, abusive, hostile or obstructive conduct impedes the fundamental goal of resolving disputes rationally, peacefully and efficiently. Incivility tends to delay, and often deny, justice.” [xvii]
What if we seriously practiced the principals that our Standards of Civility set out instead of succumbing to the turmoil that strong personalities can sometimes create. If we choose to treat each other with respect our actions can have significant, permanent, and healthy effects for us individually and as a profession.
The Idaho Lawyer Assistance Program has volunteer members in every judicial district who are committed to not only helping our colleagues, law students, and their families cope with the challenges of addiction and mental health, but also to promoting a healthier profession. Find our contacts and other information from the Idaho Lawyer Assistance Program on the Idaho State Bar website at www.isb.idaho.gov.
Susan P. Mauk served for three years as deputy Attorney General and then spent three years in private practice before retiring from the legal profession to pursue a career as a therapist. Susan had a therapy practice for 35 years before her retirement last year.
Jamie Shropshire is a retired attorney who worked most of her career as a prosecutor for Valley County, Nez Perce County, and the Cities of McCall and Lewiston. At her retirement, she served the City of Lewiston as City Attorney. Jamie has been on the Idaho Lawyer Assistance Program Steering Committee since 2004 and has chaired the Committee since 2009.
[i] Joe Forward, Landmark Study: U.S. Lawyers Face Higher Rates of Problem Drinking and Mental Health Issues, Wisconsin Lawyer, Vol. 89, No. 2 (Feb. 2016)
[ii] J.M. Organ, D. Jaffe, K.B. Bender, Survey of Law Student Well-Being, Bar Examiner (Dec. 2015)
[iii] The Problem of Surgeons and Drinking, Physician Health Program (June 15, 2015)
[v] supra, Krill et. al.; supra, Organ et. al.
[vi] supra, Krill et al.
[vii] Farmer, supra note 1
[viii] “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change,” from the National Task Force on Lawyer Well-Being.
[ix] Barbara L. Jones, ABA aims for healthier, better lawyers, Minnesota Lawyer (July 3, 2019)
[x] Will Meyerhofer, as quoted in: Stressed Out, Leslie A. Gordon, ABA Journal, No. 07470088, Vol. 101, Issue 7 (July 2015)
[xii] Signa study cited in the Arizona State Bar webcast: “Are We Ok?” Wellness and Well-Being Series: “We Can’t Go on Like This: Lawyer Depression, Anxiety and Suicide.”
[xiii] Martha Knudson, Well Being is Key to Maximizing your Success as a Lawyer, Utah Law Journal (Sept. Oct. 2019)
[xiv] Idaho Rules of Professional Conduct (IRCP) Preamble (July 1, 2014)
[xv] IRCP Rule 1.3: DILIGENCE (July 1, 2014)
[xvi] Standards for Civility in Professional Conduct, adopted by the United States District Court, District of Idaho, Courts of the State of Idaho and the Idaho State Bar (2001)
I entered law school as a sober alcoholic. I had moved to a new state for school, and a personal trauma plus the stress of my first year of law school nearly derailed my dream. But because of a presentation from an LAP representative at my law school, I was able to use the resources available to law students from LAP to stay sober, save myself, and save my career.
My story is nothing spectacular, but it is an honest recount of a long journey. I won’t try to impress you with outlandish stories of drunken debauchery or drug-fueled binges. Yes, all that stuff happened. For me, the healing began once I was willing to look at the causes and conditions that allowed those things to happen.
I grew up in the Midwest with two loving parents who celebrated their 40th wedding anniversary this past summer in Idaho with my husband and me at Chandler’s Steakhouse. My two younger brothers are great people and I enjoy a special connection with them. My family lives close and we spent all major holidays together. We did not have everything we wanted, but we had everything we needed. I always did well in school and excelled in music.
See what I mean? Everything seems pretty normal on the surface.
Beneath the surface, the problem was me. I felt like I didn’t belong anywhere. I never felt connected with my family. We didn’t talk about things, especially if it involved feelings or anything remotely uncomfortable. I couldn’t wait to leave my hometown. I never felt that I could really be myself around any of my friends. I received a college scholarships for music, but I still felt I wasn’t good enough. I enjoyed looking down on others to mask my own insecurities. I had the biggest ego with the lowest self-esteem.
I started using drugs as soon as the opportunity presented itself during college. The only objective was to feel different. Constantly feeling uncomfortable in my own skin was exhausting and after 18 years I finally found an outlet. I remained high for the next 10 years.
Drinking was my favorite way to check out because every time I drank alcohol, it was for the sole purpose of getting loaded and usually resulted in a blackout. My alcoholism steadily and persistently progressed, though. I began attending Friday happy hours with coworkers once I started my career. These evolved to include several days a week, and in four and one-half short years I became a daily drinker.
Multiple run-ins with the law should have derailed my career, but family, friends, administrators, and judges always gave me a break. I never suffered the consequences I deserved. These people had the best of intentions; they wanted to give me a second chance to get my life together. They really just enabled me to continue doing what I was doing.
It was easy to justify that changes were unnecessary because my life wasn’t yet “that bad.” I was still gainfully employed, had a roof over my head, and my car was paid off. I could conveniently focus on those facts and overlook that I was defaulting on my student loans, drinking myself into debt, and taking on a second job to support my drinking and drug habits.
I could also conveniently overlook the impact my addiction was having on my personal relationships. I was constantly loaded the last two years I was actively using and was isolating myself so people wouldn’t see how bad it was. My parents never heard from me. My mother worried. My dad had to hear about it. I borrowed money from everyone and paid no one back. Two romantic relationships ended because the other person couldn’t deal with my drinking.
Then, I met someone who would change everything. We fell madly in love and partied hard for the first 10 months of our relationship. He decided at that time he was done, entered treatment, got sober, and remained sober through a 12-step program. I wasn’t ready to join him on that journey because I couldn’t imagine my life without alcohol, but I had a front row seat to watching someone’s life improve through sobriety. He became happy again and that was irritating.
I continued drinking for another year and a half, often against my will. Putting down the drugs was easy, but I could not stop drinking. He noticed and told me he couldn’t continue in the relationship this way. As much as he loved me, he had to put his sobriety first. I was happy to leave because no one was going to interfere with my drinking.
My rock bottom happened one random night when I went out to party with friends and could NOT get sufficiently loaded. I left that party and went to the bar by my house. It was my go-to place because it was less than a mile from my house, so it wasn’t technically drunk driving because it was so close. (Seriously, this is the crap I told myself.)
While I was on a bar stool, the thought occurred to me:
“Maybe this isn’t working for you anymore. Maybe you should try not drinking.”
I know now that was a Higher Power intervening. The next day I sobered up and went to my first AA meeting. I don’t remember the discussion in the meeting, but I do remember that it was the first time I heard anyone talking about the things I was feeling. I kept going back, got a sponsor, and started working the steps. My ex said if I was going to start attending meetings and get sober, we could probably work things out. I moved back in and we married six years after I got sober.
He supported my sober dream of going back to school. We moved to Idaho so I could begin law school. There are no words to describe the excitement I felt about walking through the fear and making it to this moment!
But life happened. Things didn’t go according to plan. I experienced a trauma during my first year of law school that almost derailed my sober dream.
I tried to cope as best I could but with moving to a new state, setting up a new home, and starting law school, I didn’t get connected to AA right away. The traumatic event and no local support system with the stress of law school was a perfect storm for self-destruction.
One of my professor’s reached out and expressed her concern about my performance in law school. I cried in her office and thanked her, but nothing changed because nothing changed.
Two months later, I was back in her office facing a much harsher version of the previous conversation. She essentially told me I wouldn’t last long in the legal profession if I continued this way. I hated her for putting a spotlight on my shortcomings that made it impossible for me to ignore them any longer.
Then, LAP made a presentation at my law school. I talked with a representative after the presentation and she gave me her phone number. Of course, I didn’t call. Her number sat in my phone for eight months.
One day I was in enough pain that I found her number and actually called. She answered. Two days later we met for coffee. The next week we met again. I became comfortable enough with her that I wanted to call, and we started talking about the things inside that were holding me back. We talked about the trauma I experienced. She had a similar experience and told me how she walked through it to the other side.
Before I knew it, we were laughing about it! It’s possible to find humor in anything and laughing makes everything better. Yes, it was a bad thing that happened. She just asked me point blank, “How long do you want to carry this around and be miserable? You can let it go anytime and free yourself.” It took the power out of the traumatic event because she reminded me that I didn’t cause it, I can’t cure it, and I can’t control it.
Having a safe place to go and a confidential resource saved me personally and probably saved my future legal career. I feel like I’m thriving again because I’m not alone. I never have to be alone unless I choose to be.
This woman is always a phone call, text, or cup of coffee away and all because LAP made themselves known to group of law school students. I will be forever grateful to this small group of LAP volunteers who are willing to reach out and give their time to help our profession.
On that day, LAP’s presentation resonated with one law student. When that law student was ready to reach out for help, LAP answered. With her continued help, I’m coming out of my depression and, most importantly, didn’t have to drink or use.
I’m still sober and finding happiness again. I did NOT get sober to be miserable. If you or someone you know is struggling, reach out to LAP when you’re done being miserable. If it doesn’t work for you, LAP will refund your misery.
The author of this article wishes to remain anonymous. All information exchanged with the Idaho Lawyer Assistance Program is 100% confidential and will not be reported to the Idaho State Bar. You can reach the 24-Hour Hotline at 866-460-9014.
By Hon. Gregory M. Culet
At some point in the course of our careers as lawyers and judges, some of us have had the necessary, albeit unpleasant experience of participating in what is often described as an “intervention.”
That is to say, helping one of our colleagues, friends, or family members to acknowledge and address their alcohol or drug addiction and the impaired—often destructive—behaviors associated with it, followed by (hopefully) that individual’s entry into treatment and the long—but productive—road of recovery.
In the past, there was often no playbook for those who initiated the intervention process, and while we are all relieved if the effort results in a successful outcome, most of us would rather pass a kidney stone than go through it again.
Trial and Error
“I won’t go on the record” was the consistent qualifier I heard when, as a judge, I was receiving reports from concerned courthouse personnel about the problematic behavior of a legal professional whom they all respected highly, but whom they also believed to be impaired due to substance abuse.
I received the same qualifier from an attorney who came forward with information regarding the same individual. In fairness to each of those reporting individuals, I knew that each of them would have stepped up if such was ultimately necessary, but ultimately, that wasn’t necessary.
At that time, I was unaware of the existence of the Idaho Lawyer Assistance Program (“LAP”), which had only recently been established, and I was in a quandary as to how to proceed. Fortunately, I was able to reach out to a mutual friend with knowledge of addiction and recovery, and we were collectively able to “tag team” an informal intervention process that somehow got the process rolling, and the individual in question entered into residential treatment soon thereafter, ultimately returning to their family and profession while still maintaining their recovery and sobriety.
However, that individual’s entry into recovery did not come a moment too soon. Thereafter, I resolved to never to be asleep at the switch again while someone I knew and respected became so impaired by physical, mental, or emotional illness. Admittedly, that is easier said than done, but now there is help.
Lawyer Assistance Program as a Resource
From a judge’s perspective (albeit retired), there are notably more resources available now. The primary resources utilized by the Idaho Lawyer Assistance Program are found with Southworth Associates International, who provides confidential consulting, referrals, interventions, guidance, and monitoring regarding substance abuse and/or mental health issues not only to the Idaho State Bar and its membership, but to a number of other professional governing bodies in Idaho and their respective memberships. [i]
In addition, the LAP committee members have produced a reference manual, which provides useful insights to help members of the bench and bar identify and recognize what may be the signs of addiction and impaired behavior of our colleagues or the professionals who appear before us (or, for that matter, friends and family).
It further provides insights into how we can offer help in those situations, or otherwise take steps to address it, including where to look for expert help and advice both for the impaired individual to find help, and also help for those concerned individuals who seek to instigate the recovery process.[ii]
However, while most judges will never experience nor exhibit symptoms of addiction, a significant percentage of sitting judges have identified experiencing judicial isolation as part of a wide-ranging and deep acculturation process that comes with the job.[iii] This isolation can be particularly acute in many of our most rural counties in which only one judge resides.
Likewise, some judges have reported symptoms of depression and anxiety as a result of the stressors of the job. An example is the vicarious trauma that can be experienced by judges who constantly deal with victims of violence and tragedy.[iv] The Idaho Supreme Court has provided a confidential hotline for judges on its website and the American Bar Association has sponsored the National Helpline for Judges Helping Judges.[v]
In that regard, the LAP Reference Manual also provides useful insights to help us identify and recognize other behaviors that are symptomatic of these and other mental or emotional health concerns, and it further provides insights into how we can offer help in those situations, as well as providing insight to help each of us recognize when we are experiencing those same symptoms ourselves.
Benefit of Practicing in a Sparsely Populated State
Due to the rural nature of much of our state, members of both the Idaho judiciary and the Idaho State Bar are often in a unique position to interact with each other often over a period of years and even decades.
In turn, this allows greater opportunity for judges to recognize when a lawyer is exhibiting impaired behavior which may be the result of physical, mental, or emotional illness, and further allows us as fellow professionals (and in many instances, friends) to take steps to both assist the lawyer to find help, while still protecting the interests of the represented parties.
From a personal perspective, I have observed and interacted with attorneys both before and after they have entered the recovery process and further observed what appears to be their ongoing success in recovery.
My perception is that there often appears to be a new level of discipline in those same individuals, which I can only assume is at least partially a result of their newly acquired ability to maintain their sobriety in recovery while still handling the stresses and challenges of their professional and personal lives. The conclusion I have drawn is that in most cases the recovery process actually works. In fact, it works well!
Additional resources or information can be found on the Idaho State Bar’s website at: https://isb.idaho.gov/member-services/programs-resources/lap/, or the American Bar Association’s Commission on Lawyer Assistance Programs at: https://www.americanbar.org/groups/lawyer_assistance/.
Hon. Gregory M. Culet served in the Idaho Judiciary for over 31 years, both as a Magistrate and a District Judge, retiring in 2012. He is now a member of the Idaho Lawyer Assistance Program Steering Committee.
[i] Southworth Associates, Ben Seymour, Program Coordinator; 5530 W. Emerald, Boise, Idaho 83706; Southworth email@example.com; web site: www.southworthassociates.net; 24-Hour Hotline: (866) 460-9014.
[ii] The Idaho Lawyers Assistance Program Reference Manual can be found at https://isb.idaho.gov/wp-content/uploads/lap_manual.pdf.
[iii] Dr. Isaiah M. Zimmerman, PhD., Court Review, Vol. 36, Issue 4 (Winter 2000).
[iv] Dr. Peter Jaffe, Professor, University of Western Ontario, London, Canada, Presentation to Idaho Judiciary(2007).
[v] National Helpline for Judges Helping Judges: (800) 219-6474
By Mark J. Fucile
Both academic research and the popular legal media have increasingly discussed the “wellness” challenges facing the legal profession.[i] At the same time, the organized bar both nationally and locally have undertaken significant initiatives to better address these challenges.[ii] Although precise statistics are not available, anecdotal evidence from case reports suggests that lawyer “impairment” in one form or another puts lawyers at disciplinary risk and firms at malpractice risk.[iii]
This article surveys two related questions for law firm risk management within the context of lawyer impairment: (1) what are a law firm’s supervisory responsibilities for lawyers[iv] who may be impaired? and (2) what are the reporting obligations of law firms for an impaired lawyer?[v] With each, the word “impairment” is used in the broadest sense of a condition—regardless of the cause—that affects a lawyer’s ability to competently represent clients.[vi]
Idaho Rule of Professional Conduct (“RPC”) 5.1(a) outlines the regulatory duties of law firm partners and others with “comparable managerial authority” for creating an ethical infrastructure within their firms. To account for variations in firm size, number of offices and practice fields, RPC 5.1(a) is intentionally both broad and general:
“A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.”[vii]
RPC 5.1(b), in turn, addresses the responsibilities of a direct supervisor—regardless of the lawyer’s position within the firm involved:
“A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.”
Similarly, the Idaho Supreme Court in Stephen v. Sallaz & Gatewood, Chtd., 150 Idaho 521, 527, 248 P.3d 1256,1262 (2011), emphasized that a law firm is responsible for any malpractice committed by its lawyers:
“Idaho’s corporate code applies here and it is clear that a corporation is liable for the negligent or wrongful act of employees acting on behalf of the corporation.”
Although neither of these regulatory or corporate codes address lawyer impairment specifically, both make clear that client work must be undertaken competently and within the standard of care. RPC 1.1 defines the former:
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”[viii]
Case law defines the latter:
“As a matter of law, an attorney owes his client a duty to use and exercise reasonable care, skill, discretion, and judgment in the representation.”[ix]
The comments to RPC 5.1 counsel that firms should take proactive steps that reasonably anticipate common risks and that they cannot “turn a blind eye” when problems arise.
For its part, Comment 2 gives examples of proactive steps firms should generally take to address common risks: “Such policies and procedures include those designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property and ensure that inexperienced lawyers are properly supervised.”
And Comment 3 notes the reality that problems may occur and cannot simply be ignored: “In any event, the ethical atmosphere of a firm can influence the conduct of all its members and the partners may not assume that all lawyers associated with the firm will inevitably conform to the Rules.”
Although these are comments to a regulatory rule, then-Justice Jim Jones, in his concurring opinion in a legal malpractice case, acknowledged the practical relationship between the regulatory rules and the standard of care: “The contours of an Idaho lawyer’s duty of care are generally spelled out in the Idaho Rules of Professional Conduct[.]”[x]
Given better documentation of lawyer impairment issues and the more robust resources now available for law firms in this area, firms will likely be increasingly expected to implement policies and procedures for identifying and assisting firm lawyers to both prevent and mitigate impairment-related issues. The comments to RPC 5.1 suggest that such policies and procedures may be tailored to a firm’s particular circumstances, with Comment 3 observing: “In a small firm of experienced lawyers, informal supervision and periodic review of compliance with the required systems ordinarily will suffice . . . [while] [i]n a large firm . . ., more elaborate measures may be necessary.”
In sum, the increasing recognition of the problem of impairment within the legal profession means that law firms should incorporate protocols appropriate for firm size and practice into their risk management plans. With the increasing recognition of the problem has also come the availability of resources for firms of all sizes from national organizations such as the ABA and local ones such as the Idaho Lawyers Assistance Program. Malpractice carriers are also another source of practical tools. Just as law firms cannot ignore conflict checks or cyber security risks, they need to frankly acknowledge and address the issue of lawyer impairment.
RPC 8.3(a) states a lawyer’s duty to report professional misconduct:
“A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.”
Comment 3 to RPC 8.3 outlines the contours of the reporting requirement:
“If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term ‘substantial’ refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.”
The ABA in Formal Opinion 03-429 (2003) wrestled with the interplay between addressing impairment issues internally and reporting under ABA Model Rule 8.3—on which Idaho’s variant is based. In what can be a gray area, the opinion offers prudent and practical guidance.
Formal Opinion 03-429 divides the duty to report—or not—into three broad categories. First, the opinion counsels that there is no duty to report if the impairment has not resulted in a violation of the professional rules. The opinion puts it this way: “[I]f the firm reasonably believes that it has succeeded in preventing the lawyer’s impairment from causing a violation of a duty to the client by supplying the necessary support and supervision, there would be no duty to report under Rule 8.3(e).”[xi] For example, if a firm lawyer raised—or was confronted with—an issue that had the potential to impair the lawyer’s representation of a client but no harm to the client resulted, then there would be no duty to report. Even if there is no duty to report, however, the firm should still take whatever remedial steps are appropriate to assist the lawyer and to protect any clients affected.
Second, the opinion concludes that there is no duty to report if the condition that has caused impairment has resolved. The opinion uses the following example: “[I]f partners in the firm and the supervising lawyer reasonably believe that the previously impaired lawyer has resolved a short-term psychiatric problem that made the lawyer unable to represent clients competently and diligently, there is nothing to report.”[xii] The logic in this scenario is that the lawyer has regained the requisite fitness to practice law moving forward. Although this may alleviate the need to report the lawyer to a regulatory authority, the firm would still have a duty under the “communication rule”—RPC 1.4—to inform current clients impacted by any material errors the lawyer made during the transitory period of impairment. Another ABA opinion—Formal Opinion 481 (2018)—addresses this duty in considerable detail. Depending on the circumstances, Formal Opinion 03-429 suggests the firm may also have a duty to monitor the lawyer’s work for at least a reasonable period going forward to assure that the impairment has not reoccurred.
Third, the opinion finds that if a lawyer’s impairment renders the lawyer unable to competently represent clients but the lawyer insists on doing so anyway, the firm must report.[xiii] In this situation, the opinion concludes that the firm cannot simply replace the lawyer without telling the clients affected—although it suggests there is a balance to be struck between informing clients and respecting the privacy of the lawyer involved. The opinion suggests in this regard: “In discussions with the client, the lawyer must act with candor and avoid material omissions, but to the extent possible, should be conscious of the privacy rights of the impaired lawyer.[xiv] The opinion also finds that, again depending on the circumstances, management and supervisory lawyers may have an obligation to take appropriate steps to mitigate the consequences.
Formal Opinion 03-429 strikes a balance between helping impaired lawyers and protecting clients. The opinion offers firms practical guidance in navigating what is always a difficult situation.
With the increasing recognition of impairment issues within the legal profession and the corresponding availability of resources to address them, law firms should incorporate protocols for dealing with impairment issues appropriate for firm size and practice into their risk management plans.
Mark J. Fucile of Fucile & Reising LLP handles professional responsibility, regulatory, and attorney-client privilege matters for lawyers, law firms, and legal departments throughout the Northwest. He is a member of the Idaho State Bar Litigation and Professionalism & Ethics Sections. He also teaches legal ethics as an adjunct for the University of Oregon School of Law’s Portland campus. He can be reached at 503.224.4895 or firstname.lastname@example.org.
[i] See, e.g., Patrick R. Krill, Ryan Johnson and Linda Albert, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10, No. 1 J. Addict. Med. 46 (2016); Christine Simmons, Law Firms Face Malpractice Risk Over Substance Abuse, Poor Mental Health, available at www.propertycasualty360.com, Dec. 4, 2018.
[ii] See, e.g., ABA Working Group to Advance Well-Being in the Legal Profession, Report 105 to the 2018 Mid-Year Meeting of the House of Delegates (Feb. 2018); Idaho Lawyer Assistance Program, available at https://isb.idaho.gov/member-services/programs-resources/lap/.
[iii] See, e.g., Matter of Tway, 123 Idaho 59, 62, 844 P.2d 688, 691 (1992) (personal and emotional problems led to issues underlying imposition of lawyer discipline); National Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 540 F. Supp.2d 900 (S.D. Ohio 2007) (legal malpractice claim painted against backdrop of lawyer impairment issues).
[iv] Although this article focuses on supervision of lawyers, law firms are also generally responsible for supervising non-lawyer employees. See generally Matter of Jenkins, 120 Idaho 379, 816 P.2d 335 (1991) (discussing regulatory responsibility for non-lawyers under RPC 5.3); Stephen v. Sallaz & Gatewood, Chtd., 150 Idaho 521, 248 P.3d 1256 (2011) (discussing malpractice liability for law firm employees).
[v] ABA Formal Opinion 03-431 (2003) addresses issues surrounding the duty to report a non-firm lawyer’s impairment.
[vi] Black’s Law Dictionary (11th ed. 2019), for example, defines “impairment” as: “The quality, state, or condition of being damaged, weakened, or diminished; a condition in which part of a person’s mind or body is damaged or does not work well[.]”
[vii] Idaho RPC 5.1 is patterned on ABA Model Rule 5.1.
[viii] RPC 1.3 addresses the related concept of “diligence.”
[ix] Sun Valley Potatoes, Inc. v. Rosholt, Robertson & Tucker, 133 Idaho 1, 4, 981 P.2d 236, 239 (1999).
[x] Bishop v. Owens, 152 Idaho 616, 622, 272 P.3d 1247, 1253 (2012)
[xi] ABA Formal Op. 03-429, supra, at 7.
[xii] Id. at 5.
[xiv] Id. at 5-6.
By David E. Kerrick
This morning I realized I have been in the business of the practice of law for 40 years. I graduated from the University of Idaho College of Law in December 1979. It has been an amazing journey! I wonder what the next 40 years will look like.
Many things have changed in four decades. But the people are still basically the same – the clients, the co-workers, the adversaries, and the professional colleagues. What has changed and what has driven change is technology.
In the beginning of my practice, my day would start by getting the mail at the post office. Letters and court pleadings would arrive, all with the necessary postage. Legal research was done in a law library with large impressive books. I would respond to the phone messages written up by the secretary with the use of a black desk phone. Mountain Bell was the only carrier available and calling Boise was a long-distance call.
My secretary could take my dictation in shorthand and would type my words up on a fancy IBM Selectric typewriter. My scheduling calendar was a spiral notebook, month-at-a-glance format, with 18 months’ worth of capacity.
To do research on my clients or the opposing party was a mysterious process of interviews and detective work finding records at various locations. Client files would grow and grow. When the files were closed, they were placed in a dead file storage unit. The dead files grew like a cancer. The physical office itself was where all the work had to be done. When I was away from the phone, I was away. Back then the life of George Jetson seemed farfetched.1
As time has passed, communication has changed. Paper letters have all but gone the way of the dinosaur. Now, the only things I find when I go to the post office are a few bills and a bunch of junk mail. Email is now the preferred method of communication by most. In the mid-1990s, I had heard of the internet but did not have a clue as to what it was or how it worked. When I purchased my first laptop computer, my nine-year-old daughter taught me how to use Windows. My first cell phone was the size of a brick and had an antenna. There was no camera in it.
I am not yet there, but many lawyers are now putting their files in the cloud. Recently, I have started keeping my calendar on an app that I can look at with my cell phone. Before I see a new client now, I usually have a stack of information that my assistants print from the internet, such as property records, obituaries, court repositories, Facebook profiles, news articles, etc.
Legal research has also become quicker with the internet. In fact, I can find an Idaho statute quicker through Google than I can find it through the index in my Idaho Code set.
These days it is difficult to find a secretary who knows shorthand. I put my last IBM Selectric on Craigslist for free. It took over a month to find a taker.
I am amused now when I go to a conference. The speaker is standing up front giving a PowerPoint presentation and everyone in attendance is looking at their phone or their tablet checking their email or surfing the internet. And it isn’t even considered rude. It’s just normal multitasking in the 21st Century.
Every new device that automates something or makes our work faster and more efficient simultaneously increases our workload. The expectation now seems to be that I sit at my computer all day long, including nights and weekends, and respond instantly to one email after another. How I miss the days when I could rely on the mail to give me at least an excused three-day delay.
The challenge today, and into the future, will be mastering this endless transition of new technology.
What will the law office of the future look like? Even today, people can telecommute, and many people are capable of working “remotely.” Like George Jetson talking to his boss, Mr. Spacely, on the videophone, 2062 has already arrived! Our staff members do not need to be in the same location anymore. The secretary with shorthand is now replaced by an app on your phone that will do voice-to-text.
I can see the future now. My office will soon be contained entirely in my phone. All of my files and law books will be stored in the cloud. I will meet and talk with everyone – employees, clients, colleagues, the court – in real-time, face-to-face on my phone without leaving my house. Most mornings I won’t even need to put on my pants.
David E. Kerrick is a sole practitioner in Caldwell where he has been engaged in private civil practice since 1980. He graduated from Caldwell High School, attended the College of Idaho, received a B.A. from the University of Washington, and a J.D. from the University of Idaho College of Law.
- George Jetson is the lead character in a television cartoon series that first aired in 1962. George and his family lived 100 years in the future, that is 2062. The Jetsons talk on telephones which have a TV screen picture of the other person on the call. George’s boss is Mr. Spacely, owner of Spacely Space Sprockets. A videophone call from Mr. Spacely typically starts with him yelling at George for some work performance issue.
Friday, January 24, 2020
12:00 – 1:00 p.m. (PT)
Nez Perce County District Courthouse, Courtroom #1
1230 Main Street – Lewiston, ID
1.0 CLE credit – pending
FREE, Lunch included
The Magistrates of the Second District invite the members of the Bar to lunch and an informative discussion of guardianship as follows:
- Welcome/Introductions (MME/SR/KRS)
- Overview of guardianship/conservatorship monitoring coordinator (Christen Findley)
- Panel discussion/Q&A regarding guardianship/conservatorship matters (MME/SR/KRS)
- General/Open Q&A
Please RSVP to email@example.com no later than January 23rd to ensure sufficient food.
Join Concordia University School of Law and the Federalist Society on Friday, January 24th at 12:00 p.m. at Concordia in downtown Boise for a panel discussion on the 2019 Idaho Supreme Court decision in State v. Clarke.
Justice Bevan, Judge Oths, Denyce Thompson-Udink, and Chuck Peterson are speaking. Each panelist will discuss their perspective and how the opinion affects their respected practice of the law.
1.5 CLE credits
Lunch is provided with an RSVP. Please RSVP at the link below: