Arizona Attorney - January 2017

10 ARIZONA ATTORNEY JANUARY 2017 www.azbar.org/AZAttorney by David D. Dodge

David D. Dodge provides consultation
to lawyers on legal ethics, professional
responsibility and standard of care
issues. He is a former Chair of the
Disciplinary Commission of the Arizona
Supreme Court, and he practices at
David D. Dodge, PLC in Phoenix.

Ethics Opinions and the Rules of Professional Conduct are available at www.azbar.org /Ethics

EYE ON ETHICS

Legal Ethics and the
Impaired Lawyer

but also may affect the lawyers with whom they practice. ER 5. 1 (Responsibilities of Partners, Managers, and Supervisory Lawyers) makes a lawyer who is “a partner or has comparable managerial authority in a law firm6 in which the other lawyer practices, or has direct supervisory authority over the other lawyer” responsible for that other lawyer’s violation of the ethics rules if the partner/manager/supervisor has knowledge of the other lawyer’s unethical conduct and fails to take action to avoid or mitigate its consequences. Thus, if you have managerial or supervisory responsibilities in your firm and you know that one of the lawyers in your firm may have a substance abuse problem, you could be responsible for the consequences unless you do something about the situation.

The ABA has weighed in on this problem, 7 and an excellent Virginia State Bar draft opinion on the subject8 is currently working its way through Virginia’s ethics opinion approval process. 9 Any lawyer with ER 5. 1 responsibilities who thinks he or she may have an impaired lawyer issue needs to read these opinions.

So what do you do as either a lawyer who
thinks he or she needs help or knows of a
lawyer who may be impaired and who, for
Assistance Programs2 and was based on the premise that rates of
substance use and other mental health concerns among attorneys
were relatively unknown in spite of the real and potential prob-
lems they create for clients and society as a whole. The results are
not very flattering and, stated simply, indicate that roughly 20
percent of the lawyers responding scored at a level consistent with
“problematic drinking,” twice the rate of the general population in
the United States. 3 Levels of depression ( 28 percent), anxiety ( 19
percent) and stress ( 23 percent) were also found to be significant.
The study focused mainly on alcohol and substance abuse, which
is where most of us get in trouble, at least as demonstrated in the
reported cases. One of the more significant findings was that 36
percent of the lawyers responding qualified as “problem drinkers”
based on how much they said they drank. As pointed out in another
article on alcoholism among lawyers, 4 this means that 16 percent of
us may have a substance abuse problem—and don’t know it.

Whether the practice of law tends to attract potential alcoholics, cre-
ates them after they get there, or has nothing to do with the problem,
is far beyond the scope of this column. Besides the medical and societal
problems attendant to substance abuse, there are ethical problems as
well, arising mainly because of missed court dates and deadlines, poor
preparation and representation, and improper handing (including out-
right theft) of client funds. These shortcomings bring into focus several
specific ethical rules5:
• ER 1. 1 (Competence) requires thoroughness and prepara-
tion reasonably necessary for the representation.

• ER 1. 3 (Diligence) requires reasonable promptness in representing a client.

• ER 1. 15 (Safekeeping Property) requires a lawyer to hold the property of clients and third parties that is in the lawyer’s possession in connection with a representation separate from the lawyer’s.

• ER 8. 4 (Misconduct) covers and prohibits criminal, dishonest or fraudulent acts, often part of claims against lawyers who misappropriate clients’ property. Trust account viola tions are a common complaint in substance abuse cases.

These four ethics rules seem to predominate in the reported decisions where impaired lawyers get in trouble, but impairment can affect every aspect of a lawyer’s practice, including relations with the courts and third parties, which are covered by other ethics rules as well.