Key to Competence – Be Mindful of Your Mind

BY WENDY L. PATRICK

The practice of law requires not only the physical ability to handle a case, but a sound mind. While this should be self-evident, some lawyers underestimate problems that flow from practicing law without the requisite mental foundation. Whether due to an inadequate grasp of the law, failure to prepare, or cognitive difficulties due to mental impairment or substance abuse, there is a broad spectrum of potential consequences that flow from incompetent representation, stemming from laws and ethical rules that govern a lawyer´s behavior?both in and out of the courtroom.

In many cases, incompetent representation may be hard to detect. A silver tongue can mask a lawyer´s rusty knowledge of the laws and legal principles of which he or she so eloquently speaks. Other times, legal knowledge is up to date, but information retrieval is compromised by cognitive impairment. In either situation, there are laws and ethical rules with which both the impaired lawyer and his or her colleagues should be familiar.

Being a Competent Professional

The California Business and Professions Code requires a lawyer ?faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability.? (See Cal. Bus & Prof. Code § 6067.) Can a lawyer fulfill this obligation while struggling with mental impairment or substance abuse? Sometimes the answer changes over the years, depending on age, mental deterioration, or increasing entanglement with alcohol or drug addiction.

Competence is one of the main areas commonly impacted by substance abuse. Rule 3-110(A) of the California Rules of Professional Conduct (CRPC) states that ?[a] member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.?

Regarding the definition of ?competence,? paragraph (B) of the rule states that it means ?to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.? Paragraph (C) outlines the steps a lawyer can take if he or she does not possess the requisite competence when representation is undertaken, explaining that he or she may still render competent representation by associating with or consulting another lawyer who does possess the requisite competence, or by acquiring the necessary learning and skill themselves before performing legal services.

It is important to note that CRPC 3-110 specifically mentions mental functioning. Paragraph (B)(3) includes within the definition of competence, possessing the ?mental, emotional, and physical ability? necessary for competent representation. A lawyer who is up to speed on the law and is experienced in handling the legal issues at hand might nonetheless be subject to discipline under this rule if substance abuse or mental health issues have left him or her physically, mentally or emotionally compromised.

Knowing When to Quit

A lawyer who is struggling with mental impairment?whether due to substance abuse or other mental issues?may decide to terminate his or her legal relationship with a client or clients. CRPC 3-700 recognizes the importance of being able to represent a client to the best of a lawyer?s intellectual or physical ability, and describes the circumstances under which a lawyer may withdraw from representation.

Rule 3-700 (B) governs mandatory withdrawal. It states that a lawyer shall withdraw from employment if the member?s ?mental or physical condition renders it unreasonably difficult to carry out the employment effectively.? Rule 3-700 (C), which covers permissive withdrawal, explains that if paragraph (B) does not apply, a member may withdraw if ?the member?s mental or physical condition renders it difficult for the member to carry out the employment effectively.?

Communication is the Key

One of the biggest complaints clients continue to have about their lawyers relates to communication?specifically a lawyer´s failure to return phone calls and messages. Not surprisingly, communication is also one of the areas most affected by issues of mental impairment.

CRPC 3-500 requires a lawyer to ?keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.?

Yet this rule is not without limitations. The discussion section appended to the notes following CRPC 3-500 indicates that while clients must be informed of significant developments, a lawyer will not be disciplined for failing to communicate insignificant or irrelevant information. The discussion section references section 6068 of the Business and Professions Code, which states that one of the duties as an attorney is to respond to reasonable client status inquiries and ?to keep clients reasonably informed of significant developments? regarding the subject matter of their legal employment. See Cal. Bus. & Prof. Code § 6068 (m).

Lawyers who practice multi-jurisdictionally should remember that the California Rules of Professional Conduct follow them into other states. The rules specifically state that they ?shall govern the activities of members in and outside this state, except as members lawfully practicing outside this state may be specifically required by a jurisdiction in which they are practicing to follow rules of professional conduct different from these rules.? See CRPC 1-110.

ABA Model Rules

Although not binding in California, practitioners may find it helpful to look at the ABA Model Rules for ethical guidance.

ABA Model Rule 1.3 states that ?[a] lawyer shall act with reasonable diligence and promptness in representing a client.? While this rule does not appear problematic at first glance, it may in fact be challenging to a lawyer who is struggling mentally.

ABA Model Rule 1.3 covers the very practical reality of being overcommitted. Have you ever wondered how many cases you should undertake to handle at the same time? The comments to the model rules addresses this very common concern that is shared by both lawyers and their clients. The comments include the statement that ?[a] lawyer?s work load must be controlled so that each matter can be handled competently.? See ABA Model Rule 1.3, Comment 2. It is easy to see how mental impairment and substance abuse might implicate this advice. It is often hard to manage a busy case load in general, but it gets even harder?much harder?if a lawyer is struggling internally with substance abuse problems or mental issues, particularly when such conditions result in a lawyer missing work or missing deadlines.

A separate comment addresses another common complaint from clients: procrastination. Even lawyers who are mentally sharp often defer dealing with unpleasant matters. Those who are mentally impaired often procrastinate even more. Thus the comments note procrastination as a ?professional shortcoming? that is widely resented, because allowing too much time to lapse while handling a client?s case can adversely affect his or her interests, and can result in mistakes such as overlooking the statute of limitations to the prejudice of the client, causing a client needless anxiety, and eroding the client?s confidence in the lawyer. See ABA Rule 1.3, Comment 3.

Impact on the Profession

Mental impairment and substance impacts our profession in different ways. We consider not only the impact on the affected lawyer, but also on those who must work with that impaired attorney. What are the responsibilities of those who must deal with the impaired attorney who does not voluntarily seek help? What should an attorney do if he or she believes that opposing counsel?s handling of litigation or a deal is affected by mental issues? What is the client?s role in addressing such impairment? What can or should a judge do when faced with an advocate whom she believes is impaired on the day trial is set to start? What can a supervising attorney do to address these situations? And what is a subordinate attorney to do when working with a superior who shows up missing on the eve of trial for reasons the associate believes are connected to substance abuse?

These are not easy inquiries. The real dilemma is when, if at all, should you intervene? And if you choose to act, what steps do you take? An additional issue involves the question of whether or not we, as legal professionals and human beings, have obligations to impaired colleagues beyond those imposed by the ethical rules, to try to get them the help that they need.

In California, we currently have no ethical duty to report the misconduct of another lawyer. The San Diego County Bar Association has noted in an ethics opinion that ?[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 in San Diego Bar Ass?n Ethics Op. 1992-2.

Because many lawyers practice in different jurisdictions, it is important to note that in other states, all of whom have adopted some version of the ABA Model Rules, there may be a duty to report professional misconduct. ABA Model Rule 8.4 deals with maintaining the integrity of the legal profession. It states that it is professional misconduct for a lawyer to ?commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects? or to ?engage in conduct involving dishonesty, fraud, deceit or misrepresentation, or (d) engage in conduct that is prejudicial to the administration of justice.? See ABA Model Rule 8.4(b) and (c). A lawyer who is mentally compromised might engage in conduct that runs afoul of several of these provisions, which could trigger a reporting requirement among colleagues who are aware of the misconduct, per Model Rule 8.3.

The model rules provide an important exception to these reporting requirements, stating 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.? See ABA Model Rule 8.3(a). Another portion of this rule 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 inform the appropriate authority.? See ABA Model Rule 8.3(b). However, paragraph (c) provides a key exception. It notes that ?[t]his Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyer?s assistance program.? See ABA Model Rule 8.3(c).

The comments on Model Rule 8.3 acknowledge that information about a lawyer's or judge's misconduct or fitness may be received by a lawyer in the course of a lawyer's participation in an approved lawyers or judges assistance program. The reporting exception is designed to encourage lawyers and judges to seek treatment, knowing that they will not be ?turned in? when they acknowledge their problem. Without such an exception, lawyers and judges may hesitate to seek assistance which in turn could result in additional harm to their professional careers and additional injury to the welfare of clients and the public. The model rules do not otherwise address the confidentiality of information received by a lawyer or judge participating in an approved lawyers assistance program; such an obligation, however, ?may be imposed by the rules of the program or other law.? See ABA Model Rule 8.3, Comment 5.

ABA Formal Opinion 03-429

Lawyers who are missing work or missing in action due to issues related to substance abuse or mental impairment are at a heightened risk of running afoul of ethical rules impacting the profession. One of the most complete descriptions of the range of options available to those with supervisory authority over such a lawyer is found in ABA Formal Opinion 03-429. Note that while an ABA formal opinion ?does not establish an obligatory standard of conduct imposed on California lawyers,? the ABA Model Rules may be considered as a ?collateral source? where there is no direct ethical authority in California. State Compensation Insurance Fund v. WPS Inc. (State Fund) (1999) 70 Cal. App. 4th 644, 656.

Opinion 03-429 provides guidance regarding a lawyer´s obligations when he or she knows that a lawyer in the firm is mentally impaired. It states, ?When the impaired lawyer is unable or unwilling to deal with the consequences of his impairment, the firm?s partners and the impaired lawyer?s supervisors have an obligation to take steps to assure the impaired lawyer?s compliance with the [ABA] Model 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 impaired lawyer with the facts of his 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 accept assistance to prevent future violations or limiting the ability of the impaired lawyer to handle legal matters or deal with clients.? See ABA Formal Op. 03-429 at 3.

Obligations of the Court

Mentally compromised lawyers often exhibit symptomology that is noticed first by the judge. The famous ?drunk lawyer? segment on YouTube portraying a criminal defense attorney appearing drunk in court while representing a client on a serious case has spurred lively discussion about the scope of the judge?s role in dealing with an attorney who is obviously impaired. In the video, the judge orders the lawyer to take a handheld breathalyzer test which registers a .07 percent blood alcohol content. While some lawyers question the propriety of ordering such a test, applicable statutory and case law provide some helpful language about a judge?s authority to control the proceedings.

A California statute provides the court with the power to ?preserve and enforce order in its immediate presence? and also ?enforce order in the proceedings before it.? This includes the court?s power to ?control in furtherance of justice, the conduct of its ministerial officers, and all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.? See Cal. Code Civ. Proc. § 128.

The general contempt statute empowers the court to deal with ?disorderly, contemptuous, or insolent behavior? tending to interrupt the due course of a trial or other judicial proceeding.? In addition, power exists to prevent a ?breach of the peace, boisterous conduct, or violent disturbance? tending to interrupt a trial or other judicial proceeding. Moreover, the judge can deal with the ?willful neglect or violation of duty by an attorney, including the disobedience of any lawful judgment, order, or process of the court.? And finally, the contempt statute empowers a judge to punish ?[a]ny other unlawful interference with the process or proceedings of a court.? See Cal. Code Civ. Proc. § 1209.

?Other Misconduct Warranting Discipline?

In some cases, substance abuse violations may amount to misconduct warranting discipline. In one case, the California Supreme Court held that although drunk driving did not involve moral turpitude, it established ?other misconduct warranting discipline.? See In re Anna Lou Kelley (1990) 52 Cal. 3d 487, 494. The court noted that the lawyer?s disobedience of a judicial 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 court also felt that the lawyer?s two drunk driving convictions within a short period of time indicated a serious problem, and noted that they had previously imposed discipline based on two drunk driving convictions notwithstanding the lack of moral turpitude. See 52 Cal. 3d at 496, citing In re Carr (1988) 46 Cal. 3d 1089 (imposing six-month suspension). With respect to the particular lawyer at issue, the court stated that her behavior indicated an alcohol problem as well as a lack of respect for the law?both being problems that 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 498.)

The Kelley case is clearly an extreme situation, but the takeaway remains: whatever one thinks about guidance offered by the ABA Model Rules, attorneys must be aware of the wide variety of professional obligations that could be adversely affected by issues of substance abuse and mental competence. An awareness of the rules cited above coupled with effective representation amounts to outstanding advocacy and success in your cases. Knowledge of both your legal and professional responsibilities will ensure that you are able to try your cases confidently as well as competently. And remember, there are two separate tracks of analysis here: first, the desire to practice within the rules. And second, the need to practice competently, thus avoiding a malpractice claim.

HELP IS THERE - IF AND WHEN YOU NEED IT

There are many resources available to lawyers who are affected by mental impairment or substance abuse. Here are three important services available to those in need of assistance.

The Other Bar - a network of recovering lawyers, law students and judges throughout the state): 1-800-222-0767; www.otherbar.org.

The Lawyers Assistance Program - help for lawyers and State Bar applicants who are grappling with stress, anxiety, depression, substance use or concerns about their career: Email: LAP@calbar.ca.gov; http://www.calbar.ca.gov/Attorneys/MemberServices/LawyerAssistanceProgram.aspx

State Bar Senior Lawyer Resources webpage ? a collection of resources addressing attorney professional responsibility issues that arise in connection with retirement, disability, and death of attorneys: http://ethics.calbar.ca.gov/Ethics/SeniorLawyersResources.aspx

Wendy L. Patrick is a deputy district attorney in San Diego County and past chair of and advisor to the California State Bar Committee on Professional Responsibility and Conduct.

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