Dealing with Substance Abuse

Courtroom victories are uplifting, but when the winning lawyer returns to his or her office, a daunting reality awaits: a desk overflowing with new cases; motions waiting to be filed; looming deadlines; a voice mailbox full of messages to return; hundreds of emails to open; and a pile of snail mail that needs to be read. And that's for the winner. The loser faces the added emotional burden of defeat. For some attorneys, the scenario may be an invitation to escape into drink or drugs.

Given the thousands of daily stressors that affect attorneys, it should come as no surprise that substance abuse is a significant problem in the legal profession. Several studies suggest that alcohol or drug abuse among attorneys may be as much as 50 percent higher than in the general adult population. (See Richard Carlton, "Getting Help When You Need It," CALIF. STATE BAR JOURNAL, Aug. 2006.) Among the reasons: Greater dissatisfaction and stress among lawyers as collegiality has waned and the profession has been transformed into a more hard-nosed business.

State Bar statistics show that 75 percent of attorneys who sought help with substance abuse in 2008 were also involved in disciplinary proceedings. (See 2008 Annual Report of the Lawyer Assistance Program of the State Bar of California at pp. 6-7, available at www.calbar.ca.gov/calbar/pdfs/reports/2009_LAP-Annual-Report_2008.pdf.)

Yet afflicted attorneys are not without resources. Prominent among these is the State Bar's own Lawyer Assistance Program (LAP) (see www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10566&id=1646). The LAP's mission has three main components: to support recovering attorneys in their rehabilitation; to enhance protection of the public; and to maintain the integrity of the legal profession. Other resources include peer support groups such as The Other Bar (www.otherbar.org), Lawyer's LifeRing (www.lifering.org/lawyers) and International Lawyers in Alcoholics Anonymous (www.ilaa.org).

These are helpful resources once a problem is identified, but the best time to attack substance abuse is before it destroys a person. For lawyers, the issue goes far beyond personal well-being, for substance abuse also impacts a lawyer's fiduciary duty and professional responsibility.

Impact on Ethics
Consider the problem of an adversary who has a substance abuse problem. Anyone who has the burden of dealing with that lawyer must confront profound questions. Indeed, what exactly is a lawyer's duty - if any - when it becomes apparent that counsel on the other side has a substance abuse problem yet refuses to deal with it?

In California, a lawyer has no ethical duty to report the misconduct of another attorney, and the State Bar has no ethics opinions on the topic of reporting substance abuse. As the San Diego County Bar Association has noted, "[T]here is no ethical duty imposed by the California Rules of Professional Conduct upon California attorneys to report the misconduct of other attorneys. This is true regardless of the nature or magnitude of such misconduct. Notwithstanding, the act of reporting such misconduct is absolutely privileged in this state." (See San Diego Bar Ass'n, Ethics Opinion 1992-2.)

However, under the American Bar Association's Model Rules (which are not binding in California but which may offer helpful guidance), there is a duty to report under certain circumstances. Model Rule 8.4, which deals with maintaining the integrity of the legal profession, states in part that it is professional misconduct for a lawyer to engage in acts that are criminal, dishonest, deceitful, or which otherwise reflect adversely on the lawyer's fitness; misconduct also includes acts that are prejudicial to the administration of justice. (See ABA Model Rule 8.4 (b)-(d).)

Of course, a lawyer struggling with substance abuse may end up engaging in conduct that runs afoul of this standard, and such conduct may trigger a reporting requirement among other lawyers who are aware of it. Model Rule 8.3 states that 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." The rule also provides that a lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall also inform the appropriate authority. There is an exception: The rule does not require disclosure of information gained by a lawyer or judge while participating in an approved lawyer assistance program (ABA Model Rule 8.3 (a)-(c)).

Partners and Colleagues
The law firm setting presents other scenarios. Suppose a lawyer at a law firm confides in a colleague that he or she is suffering from a substance abuse problem and is worried that work is spinning out of control. What is the reporting duty, if any, of the lawyer to whom this disclosure is made? Anyone in a law firm hierarchy who is faced with this issue should consult ABA Formal Opinion 03-429 (2003), which addresses the obligations for dealing with a mentally impaired lawyer at a firm, whether the impairment is due to Alzheimer's disease, age-related mental illness, or alcoholism or other substance abuse. The opinion states that when the impaired lawyer is unable or unwilling to deal with the consequences of his or her impairment, the firm's partners and the impaired lawyer's supervisors are obligated to take reasonable steps to assure his or her compliance with the ABA Model Rules. Under those rules, the firm's "paramount obligation is to take steps to protect the interests of its clients." The first step may be to confront the lawyer with the facts of his or her impairment and insist upon steps to assure that clients are represented appropriately notwithstanding the lawyer's impairment. Other steps may include forcefully urging the impaired lawyer to accept assistance to prevent future violations, or limiting his or her authority to handle legal matters or deal with clients. If the impaired lawyer has already violated the Model Rules through unethical behavior or through substandard representation of a client, there may be an obligation to report the lawyer to the appropriate professional authority. (See ABA Formal Opinion 03-439 (2003) at pp. 3-6.)

But what if the afflicted lawyer is a name partner who has no "superior" at the firm? In this scenario, ABA Model Rule 8.3 (a) still applies; there is no requirement that the reporting lawyer stand in any particular relationship to the lawyer whose conduct is being reported to the appropriate professional authorities.

Indeed, the ABA Model Rules apply similar duties if an attorney has knowledge that a lawyer outside his or her own firm is mentally impaired and as a result is violating disciplinary rules. In such a case, the lawyer with knowledge has a duty to inform appropriate professional authorities. (See ABA Formal Opinion 03-431 (2003) at p. 2.)

Looking Inward
It's one thing to call out an opponent or a colleague. What about yourself? Substance abuse clearly implicates an attorney's duty of competence under Rule 3-110 (A) of the California Rules of Professional Conduct (CRPC), which states: "A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence."

The term "competence" means applying the diligence, learning, skill, and mental, emotional, and physical ability reasonably necessary for the performance of legal services. (See CRPC 3-110 (B).) Because the rule requires lawyers to possess the mental, emotional, and physical abilities necessary for competent representation, substance abuse that causes a lawyer to suffer physically, mentally, or emotionally can lead to incompetent representation. If a substance abuse problem overtakes a lawyer's life, it may require that the lawyer withdraw from representation; the rules state that such action is mandatory if the lawyer's "mental or physical condition renders it unreasonably difficult to carry out the employment effectively." (See Rule 3-700 (B).)

The rules on permissive withdrawal parallel this standard, except that the word unreasonably is not part of the equation; thus, in a permissive withdrawal situation the lawyer's impairment must simply make it "difficult" (not "unreasonably difficult") to carry out the representation. (See Rule 3-700 (C)(4).)

When considering the impact of substance abuse on a particular lawyer, don't focus merely on the ability to deal with the other side; attention must also focus on the attorney's relationship with his or her own client. In that regard, substance abuse may profoundly compromise a lawyer's ability to effectively communicate with clients - an ability that is required under the rules of professional conduct. Indeed, Rule 3-500 requires a lawyer to "keep a client reasonably informed about significant developments," including promptly complying with reasonable requests for information and for copies of significant documents when necessary.

Dealing with the adversaries, colleagues, and clients of afflicted attorneys is only part of the challenge. What about lawyers who enter the criminal justice system as defendants because of substance abuse issues?

Criminal Conduct
Substance abuse can lead to a criminal conviction, which itself may amount to misconduct warranting discipline. In one case, the Supreme Court of California held that although drunk driving did not by itself involve moral turpitude, it established "other misconduct warranting discipline." (In re Anna Lou Kelley, 52 Cal. 3d 487, 494 (1990)). The court noted that the lawyer's disobedience of a court order imposed following her first conviction for drunk driving demonstrated "a lapse of character and a disrespect for the legal system that directly relate to an attorney's fitness to practice law and serve as an officer of the court." (52 Cal. 3d at 495.) The justices said that the lawyer's two drunk driving convictions within a short period of time indicated a serious problem, and they noted that the court had, in another case, imposed discipline based on two drunk driving convictions notwithstanding a lack of moral turpitude (52 Cal. 3d at 496 [citing In re Carr, 46 Cal. 3d 1089 (1988) (imposing six months suspension)]). With respect to attorney Kelly, the court stated that her behavior indicated an alcohol problem as well as a lack of respect for the law - both problems which could adversely affect her legal practice. Accordingly, the court pointed out that because its task in disciplinary cases "is preventative, protective and remedial, not punitive," it had a responsibility to impose a measure of discipline designed to protect the public (52 Cal. 3d at 496).

The Judicial Role
What should a judge do when faced with a lawyer in the courtroom who appears to be impaired because of substance abuse? A real-time courtroom video of a judge dealing with an alcohol-impaired criminal defense attorney spurred lively discussions about just this question when it showed up on YouTube. In the video, the judge orders the lawyer to submit to a courtroom Breathalyzer test, which registers a .07 percent blood alcohol level ("Drunk Vegas Lawyer Causes Mistrial in Court," www.youtube.com/watch?v=yV2qtvbIPFE (Part 4)).

Some lawyers have questioned whether the trial judge had the authority to order such a test. Statutory and case law, however, provide some guidance. At bottom is the judge's role in controlling courtroom proceedings. The court has power to preserve and enforce order in its immediate presence; enforce order; and control the conduct of persons connected with the judicial proceeding, all with the aim of properly administering justice (see Cal. Code Civ. Proc. § 128 (a)).

One of the primary tasks of a judge under section 128 is to control, prevent, and punish contempt of court. A related provision of the code defines the type of conduct constituting contempt. Section 1209 of the Code of Civil Procedure includes as contempt: disorderly, contemptuous, or insolent behavior toward the judge; a breach of the peace, boisterous conduct, or violent disturbance tending to interrupt the due course of a trial or other judicial proceeding; misbehavior in office or other willful neglect or violation of duty by an attorney; disobedience of any lawful judgment, order, or process of the court; and any other unlawful interference with the process or proceedings of a court (Cal. Code Civ. Proc. § 1209).

The state Supreme Court long ago noted that a trial court "has the power to exercise a reasonable control over all proceedings connected with the litigation before it. Such power necessarily exists as one of the inherent powers of the court and such power should be exercised by the courts in order to insure the orderly administration of justice." (Hays v. Superior Court, 16 Cal. 2d 260, 264 (1940).)

More recently, a state appellate court observed that courts have "inherent power, separate from any statutory authority, to control the litigation before them and to adopt any suitable method of practice, even if the method is not specified by statute or by the Rules of Court." (Amtower v. Photon Dynamics Inc., 158 Cal. App. 4th 1582, 1595 (2008).)

A trial judge has inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration of justice. And as case law teaches, trial judges must assure that trials are conducted with solicitude for the essential rights of the parties. For that reason, judges have inherent power to exercise reasonable control over all proceedings connected with litigation inside and outside the courtroom. The court has authority to take whatever steps are necessary to see that no conduct on the part of any person obstructs the administration of justice. Judges can, and do, "maintain the dignity and authority of the court and ... summarily punish for acts committed in the immediate view and presence of the court when they impede, embarrass or obstruct it in the discharge of its duties." (People v. Shelley, 156 Cal. App. 3d 521, 530 (1984).)

The adversary system, then, does not relieve a trial judge of the obligation to raise - on his or her own initiative, at the appropriate time, and in an appropriate manner - matters that may significantly promote a just determination of the matter at hand. If that courtroom scene making its way around the Internet on YouTube had taken place in California, it seems clear that the court would have had the authority to take appropriate action to deal with the impaired counsel.

Substance abuse is a real problem in the legal profession, and issues related to it implicate a wide variety of ethical dilemmas and professional obligations. Knowledge of a lawyer's responsibilities in this area will ensure that you are better equipped to deal with such issues should they affect your practice.

Wendy L. Patrick is a deputy district attorney in San Diego and a member of the State Bar Committee on Professional Responsibility and Conduct.

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