Addressing lawyer impairment

“Empathy is a connection; it’s a ladder out of the shame hole.” – Brené Brown

A lawyer’s obligations, upon learning of a colleague’s struggle with addiction, need not be antithetical to empathy or compassion. In addition to feelings of concern, a lawyer who knows a colleague is impaired must also protect client interests. Empathy, the ability to share or understand another’s experiences, can help navigate the difficult path of addressing lawyer impairment.

The issue of lawyer impairment and addiction is real and compelling. More than any other profession, lawyers suffer from it. While no recent Canadian surveys consider the issue, the American Bar Association conducted a study in 2016, finding 20.6% of respondents scored at a level that signified problematic drinking. Perhaps surprisingly, problematic drinking was higher among young lawyers (31.9% of lawyers younger than 30) than among more senior lawyers (16.2% of lawyers between 51 and 60). Men suffered a higher incidence of depression than women, while women suffered from higher levels of anxiety and stress.

The pandemic has materially contributed to the problem. Alberta Lawyers’ Assistance Society (Assist) reports a marked increase in 2020 in individuals seeking professional counselling for substance use issues. Although the total number of cases was similar in 2020 and 2019 (977 versus 1027), the percentage of cases seeking assistance for addiction rose from 5% to 9%.

Rule 7.1-3 of the Code of Conduct states that a lawyer must report to the Law Society of Alberta any conduct that raises a substantial question about another lawyer’s capacity to provide professional services, and any situation in which a lawyer’s clients are likely to be materially prejudiced. Impairment resulting from addiction may fall under either provision. A lawyer is exempted from the obligation to report if it would involve a breach of solicitor-client privilege or if it were unlawful. Knowledge that a lawyer suffers from impairment does not trigger the obligation to report. Rather, knowledge that impairment has resulted in conduct that itself raises concerns about capacity triggers the obligation. The distinction is important.

Lawyers are reluctant to report colleagues. They do not want to “tattle” on another lawyer, nor do they want to be the complainant.  The standard requiring the report is high, triggered only if the lawyer reasonably believes their colleague is encouraging or will engage in criminal conduct, or harm another person. A lawyer who practises without addressing their addiction will harm clients. Critically, if the lawyer struggling with addiction seeks treatment or help, and client interests have not been impacted, the duty to report is not engaged.

Nonetheless, a lawyer who is aware of a colleague’s impairment does have obligations. If they are not able or willing to make a bona fide effort to assist their colleague, they must report. If they are aware that their colleague’s addiction has caused prejudice to clients, they must report. If they make a bona fide effort to assist their colleague, but their colleague refuses to seek treatment, they must report. In each of those instances, clients’ interests are at risk in a situation that is unlikely to improve. 

Workplace policies and procedures are key in both supporting a colleague and protecting clients. They equip a workplace to move forward without wasting valuable time trying to figure out what to do. Policies should include steps such as meeting with the lawyer, even if the firm believes the lawyer is functioning, has not made an error, or has not otherwise compromised a client’s interests. In working to address the impairment, the workplace will have to address the lawyer’s confidentiality and privacy, assigning files, any possible impact on client interests, including trust accounts, and whether the lawyer may be able to continue with some tasks. It must also consider whether making a report to the insurer or indemnity program is required.

Finally, the firm will have to determine whether the lawyer can and should continue practising. This difficult question may only be answered with the benefit of time and will require consideration of multiple complex factors, including the extent of impairment, and whether the lawyer acknowledges it, is seeking help, and is willing to work with the firm in addressing it.  If the lawyer requires time away from the office to address the impairment, the law firm and lawyer may need a return-to-work plan which sets out the lawyer’s obligations.

While client interests are paramount when a legal workplace addresses a lawyer’s impairment, empathy, patience and understanding will provide critical support to a struggling colleague. Having a plan and working with the lawyer will enable the workplace to balance client interests with the lawyer’s and may help the lawyer return to life and practice. Additional information on a lawyer’s ethical obligations when they believe a colleague is struggling with addiction is available at Ethically Speaking: Addiction – Law Society of Alberta.  The Practice Advisors can also provide information.