Ethically Speaking: Addiction

October 7, 2021

“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, are not of necessity antithetical to empathy or compassion. A lawyer who knows that a colleague is impaired bears the burden of ensuring steps are taken to protect client interests, and may carry an additional burden: worry for their colleague. Empathy, the ability to share or understand another’s experiences, can help the lawyer navigate the difficult path of addressing lawyer impairment.

Rule 7.1-3 of the Code of Conduct states that unless doing so would involve a breach of solicitor-client privilege, or would be unlawful, 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. Note however that the rule does not state that knowledge that a lawyer suffers from impairment triggers the obligation to report. Rather, knowledge that impairment has resulted in conduct that itself raises concerns about capacity triggers the obligation to report. This is an important distinction.

The commentary to the Rule reinforces the distinction. Paragraph four stipulates that a lawyer who makes a bona fide effort to help an impaired lawyer is not compelled to report their colleague to the Law Society. The duty to report is triggered only if the lawyer reasonably believes that their colleague is encouraging or will engage in criminal conduct, or will harm another person. Critically, if the lawyer who is struggling with addiction is seeking treatment or help, and client interests have not otherwise been impacted, the lawyer is not required to report. Addiction alone, then, does not trigger the obligation to report.

Nonetheless, the lawyer who is aware of their colleague’s impairment does have obligations. If they are not able or willing to make that 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.

Before having a situation arise which engages Rule 7.1-3, law firms and in-house departments should have a procedure, and possibly a policy, in place. When the situation arises, they will be ready to move forward without wasting valuable time trying to figure out what to do.

Indeed, it is likely that many legal workplaces will have to address one of their own coping with impairment. More than any other profession, lawyers suffer from addiction and impairment. While no recent Canadian surveys consider the issue, the American Bar Association conducted a study in 2016. It found that 20.6 per cent of respondents scored at a level that signified problematic drinking. Perhaps surprisingly, problematic drinking was higher among young lawyers (31.9 per cent of lawyers younger than 30), than among more senior lawyers (16.2 per cent of lawyers between the ages of 61 and 60). Men were found to suffer a higher incidence of depression than women, while women suffered from higher levels of anxiety and stress. The survey ultimately confirmed that lawyers struggle significantly more than other professionals with substance use and mental health concerns.

The questions are thus what a legal workplace can and should do, and what it is ethically obliged to do, when it realizes that one of its members is struggling with addiction or impairment. A first key step is to meet with the lawyer about the situation. This is even if the firm believes that the lawyer is functioning, has not made an error on a file, or has not otherwise compromised a client’s interests. According to Ellen M. Meagher, Office of Bar Counsel, in When a Colleague Becomes Impaired: Obligations of Lawyers and Law Firms as to Incapacitated Partners or Associates (February 2005), the first key step is to meet with the lawyer. That meeting will enable the law firm to determine whether there is indeed a problem, and if so, whether the lawyer recognizes and acknowledges the problem, and if so, whether the impairment can be cured, controlled or treated. At that point, the lawyer should be referred to Assist. The law firm may also decide to consult Assist.

It will be critical for the workplace to protect the lawyer’s confidentiality and reassure the lawyer that it is doing so. Many lawyers will not seek treatment or assistance because of confidentiality concerns. One step which may protect confidentiality and thereby encourage lawyers to come forward, is to have a policy in place which designates one person as the lawyer’s key contact. This will prevent discussion between and among people and unnecessary sharing of confidential information . Admittedly, other lawyers in the workplace will know that the lawyer has taken leave, particularly if those lawyers are tasked with addressing problems on files. However, they should not be told details about why the lawyer has taken leave.

If the workplace determines after the meeting that there is indeed a problem, it should next assess whether the lawyer’s impairment has impacted, or potentially impacted, client interests. American Bar Association Formal Opinion 03-429: Obligations with Respect to Mentally Impaired Lawyer in the Firm describes this obligation as the workplace’s paramount obligation. An important element of this assessment is review of the trust and general accounts. If any deficiencies are found, a report to Trust Safety will be required.

The workplace will also have to assess whether the lawyer can continue with particular tasks: “Depending on the nature, severity, and permanence (or likelihood of periodic recurrence) of the lawyer’s impairment, management of the firm has an obligation to supervise the legal services performed by the lawyer and, in an appropriate case, prevent the lawyer from rendering legal services to clients of the firm” (American Bar Association Formal Opinion 03-429 at page 4). The lawyer may be able to provide some services but not others. Perhaps they can work on less stressful tasks, while avoiding trials or closings that will trigger problems.

In making its assessment of the lawyer’s practice and whether the lawyer’s impairment has impacted client interests, the legal workplace will have to assess whether a report to the professional liability insurer (the Alberta Lawyers Indemnity Association if the lawyer is in private practice) is required. And, if it becomes clear in the assessment that client interests have been materially prejudiced, clients should be advised, and a report made to the Law Society of Alberta. In advising clients, the legal workplace will have to carefully navigate the lawyer’s privacy interests. The employer may need to seek legal advice on this point. It will be important to remember that insurance coverage could be void if liability is admitted. Lawyers are encouraged to contact their insurer or the Practice Advisors for assistance in how to navigate this concern.

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 the impairment, 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. The plan may include verification that the lawyer has participated in a treatment program, their commitment to stay with the program and participate in after care, commitment to participate in alcohol or drug screenings when appropriate, and an understanding that violations of the return-to-work agreement will result in clear and immediate sanctions. The lawyer and workplace may need to address that if the lawyer does not comply with the agreement, they may have to part ways. Hopefully this will only be the case in the minority of cases.

While client interests are paramount when a legal workplace is addressing a lawyer’s impairment, empathy, patience and understanding will provide the necessary 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 help the lawyer return to life and practice.