Ethically Speaking: Competence and Wellness

June 25, 2021

In Ethically Speaking, our Practice Advisors tackle frequently asked wellness-related inquiries from Alberta lawyers and students.

Question: When does a lawyer’s physical or mental condition require their withdrawal from a client?

Answer: “Competence” is the core of legal practice. It is a fundamental tenet that lawyers have and apply relevant knowledge, skills and attributes in a manner appropriate to each matter (Code of Conduct Rule 3.1-1). To be an excellent and high-achieving lawyer, one requires broadly-based competence. In Alberta, we have recently expanded that base to incorporate technological competence.

But, if competence means doing something successfully or efficiently, a lawyer’s competence includes additional esoteric components. Competence also exists in the cracks of the rule, where, for example, lawyer wellness intersects with practice. Rule 3.3-1 itself stipulates that lawyers have and apply “attributes” to practice. For example, we must “recognize limitations to our ability” to handle a matter or an aspect of a matter, and “take appropriate steps” to ensure our client is appropriately served (Rule 3.1-1(h)). Doing something (i.e. legal practise) well requires nothing less.

Consider the example of a family lawyer who is themselves enduring a high-conflict divorce. The lawyer’s own situation – their stress and anxiety – can impair their objectivity, cause them to use more aggressive tactics than are otherwise appropriate, and ultimately, can undermine the client’s interests. In Bassett v Magee, 2018 BCSC 2322, a high conflict family case, one party applied for disqualification of the opposing party’s lawyer. The Court denied the application, noting that although it “should never occur, sometimes counsel is drawn into the parties’ conflict or, for other reasons, become part of the problem rather than the solution” (para 2).

The intersection of lawyer wellness and competence is broader than impaired objectivity. Lawyers who suffer from substance abuse, mental illness, physical illness and personal problems also potentially, though not necessarily, face concerns with competence. As they cope with and address these issues in their personal lives, they must assess and reassess whether their ability to provide competent legal services is impacted. In some cases, the wellness concerns themselves arise from the stresses of practice, putting the lawyer in a trap of escalating wellness and practice concerns. In either case, lawyers must evaluate whether, at a point in time, they are competent even though they unquestionably possess the knowledge and skill required of either a particular matter or their practice generally.

Some signs of impaired competence are missed deadlines, missed meetings, procrastination, failure to respond to communications, low motivation, perpetual fatigue, and irrational anger. Essentially, the lawyer’s “ability to tolerate stress and cope with the everyday demands of clients, partners, opposing counsel or judges becomes severely compromised to the point where the lawyer is unable to practice competently” (Evaluating an Impaired Attorney’s Fitness to Practice, Dr. Alex Yufik, ABA Law Practice Today, September 14, 2018).

Despite reaching the point of not being competent on a particular file, a lawyer must nonetheless ensure the client’s interests are protected. American Bar Association Formal Opinion 03-429 (2003) notes that “Impaired lawyers have no less an obligation to the client than any other lawyer. They may not fail to represent the client with diligence and promptness, and they may not fail to communicate with the client in an appropriate manner.”

Where the lawyer works at a firm, the partners may step in to manage the lawyer’s practice and ensure that client interests are protected while simultaneously protecting the lawyer’s privacy. They can assess whether the impaired lawyer is able to practise without harming clients, and how the firm can support the lawyer. Alternatively, they can reassign clients within the firm if necessary.

Where the lawyer does not work at a firm, options include asking, with client consent, another lawyer to step into the file to act as co-counsel or withdrawing. Clear agreement should be made in writing as to the scope of co-counsel’s role, and terms by which the co-counsel will be paid. With respect to withdrawal, while Rule 3.7-1 stipulates that the lawyer may only withdraw for “good cause”, wellness concerns that impair the lawyer’s competence may comprise good cause. The lawyer should withdraw in such a way that minimizes the negative consequences to the client. Rule 3.7-7 provides some guidance.

Lawyer wellness can certainly be grounds for withdrawal as a lawyer who is unwell may not be competent to continue acting on a particular matter, or at all. Recognizing that competence is broad and nuanced can enable lawyers to withdraw rather than feeling trapped or compelled to continue acting.

The Practice Advisors and the Equity Ombudsperson at the Law Society of Alberta are available to further discuss this issue with lawyers, articling students and staff.