John P. Ratnaswamy, Esquire
The Bencher–September/October 2011
Alcoholism, other substance abuse, and mental impairment are a major cause of lawyer conduct that leads to disciplinary proceedings. For example, the Lawyers Professional Assistance Conference (LPAC) of the Canadian Bar Association has stated:
Many jurisdictions have discovered that there is a correlation between alcoholism and malpractice and discipline. Studies in Canada and in the United States estimate that approximately 60% of discipline prosecutions involve alcoholism. Similarly, something over 60% of all malpractice claims involve alcohol abuse. More significantly, a recent study has suggested that 90% of serious disciplinary matters involve alcohol abuse. It is clear that alcoholism in the legal profession is a very, very costly problem.
The LPAC went on to state: “The same holds true for drug addiction.”
The 2009 Annual Report of the Illinois Attorney Registration & Disciplinary Commission (ARDC) stated in part:
An element frequently seen in discipline cases is that the lawyer-respondent is impaired by an addiction to alcohol or other substance or suffers some type of mental disease or disorder. From data collected by ARDC staff, there has been a steady increase since 1998 in the number of disciplined lawyers identified as suffering from an impairment, either suspected or fully admitted by the lawyer. In a study of lawyers sanctioned between 1998 and 2007, the number of sanctioned lawyers with impairments rose from 24% for 1998–2002 to 32% for 2003–2007. See ARDC 2007 Annual Report, at Page 28. In 2009, 34.6% of the sanctioned lawyers were identified as suffering from a substance or mental impairment, with the number of lawyers impaired by mental disorders (25) outnumbering those with chemical dependency problems (20). This shift from impaired lawyers suffering the effects of alcohol and drug abuse to lawyers impaired by psychological problems was also reported by The Lawyers Assistance Program (LAP). LAP reported that in 2009, 44% of LAP’s caseload involved psychological issues versus chemical dependency problems (26%) and that depression is the single most frequently reported problem. See LAP’s 2009 Annual Report at http://www.illinoislap.org/annual-report.
The ARDC went on to state that in the 25 year period from 1981 to 2005, 59% of the lawyers the ARDC placed on probation suffered from substance abuse/dependence or a mental impairment.
Because of the relationship of substance abuse and mental impairment to ethics violations, there is ethics guidance on preventing and dealing with such situations that should be considered when they arise. For example, in my 2005 column in The Bencher on “Impaired Colleagues”, I discussed two American Bar Association (ABA) ethics opinions on dealing with lawyers with mental impairments, including alcohol and substance abuse issues: Formal Opinion No. 03-429, “Obligations With Respect to Mentally Impaired Lawyer in the Firm” (June 11, 2003), and Formal Opinion No. 03 431, “Lawyer’s Duty to Report Rule Violations by Another Lawyer Who May Suffer from Disability or Impairment” (August 8, 2003). Opinion 03 0429 start with the topic of adopting measures to prevent impaired lawyers within a firm/legal department from violating the ABA Model Rules of Professional Conduct. Together, the two opinions also generally address a variety of situations when lawyers know or believe that another lawyer, whether one with whom they practice (Opinion 03 0429) or not (Opinion 03 431), suffers from a mental impairment that jeopardizes the ability of the lawyer to comply with, or that has resulted in a violation of, the Model Rules.
ABA Model Rule of Professional Conduct 8.3 is the primary rule on mandatory reporting of professional misconduct by another lawyer or judge, but the Rule recognizes an exception related to lawyers assistance programs. Model Rule 8.3(c) provides: “This 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 lawyers assistance program.”
Illinois is known for taking very seriously the obligation of a lawyer to report certain categories of ethics rules violations by other lawyers. The 2010 Annual Report of the ARDC notes that, since the prominent case of In Re Himmel, 125 Ill. 2d 531 (1988), involving discipline for non-reporting, the ARDC has received more than 11,000 reports filed by lawyers and judges against members of the Illinois bar.
Yet, Illinois also has a strong policy of encouraging participation in lawyers assistance programs. Accordingly, not only is Ill. R. Prof. Cond. 8.3(c) similar (but not identical) to Model Rule 8.3(c), but Illinois added to the primary rule on confidentiality of information Ill. R. Prof. Cond. 1.6(d), which states: “Information received by a lawyer participating in a meeting or proceeding with a trained intervener or panel of trained interveners of an approved lawyers’ assistance program, or in an intermediary program approved by a circuit court in which nondisciplinary complaints against judges or lawyers can be referred, shall be considered information relating to the representation of a client for purposes of these Rules.” As with all ethics issues, the rules of the applicable jurisdiction(s) should be considered.
John P. Ratnaswamy, Esquire, is a partner in the Chicago law firm of Rooney Rippie & Ratnaswamy LLP. He serves as an Adjunct Professor of Legal Ethics at the Northwestern University School of Law and is a former member of the American Bar Association’s Standing Committee on Ethics and Professional Responsibility. He is a member of the Chicago AIC. This column should not be understood to represent the views of any of those entities or John’s or the firm’s current or former clients.
© 2011 John P. Ratnaswamy, Esquire. This article was published in the September/October 2011 issue of The Bencher, the flagship magazine of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.