The Ethics of Wellness: Emotion, Effectiveness, and Ethical Rules When Personal Challenges Create Professional Discipline

The Bencher—March/April 2022

By Wendy L. Patrick, Esquire

Workplace wellness affects every profession and every professional. For lawyers, especially if you spend much of your time in a boardroom or courtroom, your physical and mental wellness is always on display. A lawyer who is compromised, physically or emotionally, may struggle to stay on top of a heavy case load, which can impact client communication, meeting deadlines, litigation strategy, negotiation, and everything else.

Lawyer wellness implicates both effectiveness and professional ethics. Struggling with mental wellness or substance abuse can adversely impact the ability to practice with competence (ABA Rule 1.1) and diligence (ABA Rule 1.3) and communicating adequately with clients (ABA Rule 1.4) and may constitute a conflict of interest (ABA Rule 1.7). In addition, struggling with substance abuse, especially when it involves criminal behavior, may constitute professional misconduct (ABA Rule 8.4).

Cognition, Competence, and Communication

The preamble to the American Bar Association (ABA) Model Rules of Professional Conduct defines the responsibilities of a lawyer in section [1]: “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.” Quality justice requires quality judgment, which requires professional competence. The professional rules mandate professional competence as well.

Instinctively, we recognize legal specialization. Like with doctors, who usually choose a specialty, we expect lawyers to do the same. “What type of law do you practice?” we ask when we meet other lawyers. We don’t expect the answer to be “whatever walks in the door” or “a little of everything.” To the contrary, we question the wisdom of an intellectual property transactional lawyer who has never been to court who agrees to represent his neighbor’s teenager in a drug possession jury trial. The ABA Rule on competence reflects these instincts.

ABA Rule 1.1 requires competent representation, defined as “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” Comment [1] expands this definition to what factors to examine in determining whether a lawyer employs the requisite knowledge and skill, including not only factors relevant to a lawyer’s training and experience but also “the preparation and study the lawyer is able to give the matter,” among other things. Any lawyer struggling with mental or emotional issues is likely not able to put in the requisite amount of preparation to be able to get up to speed in an unfamiliar area—or even an area within his or her wheelhouse.

ABA Rule 1.3 states that lawyers shall “act with reasonable diligence and promptness” when representing clients. The comment sections illustrate some of the problems to be aware of that can often arise when a lawyer is struggling with substance abuse or mental wellness. Rule 1.3 Comment [2] states that “a lawyer’s work load must be controlled so that each matter can be handled competently.” Comment [3] addresses one of the most frequently encountered client complaints: procrastination, recognizing it as perhaps the most “widely resented” professional shortcoming. Comment [3] also notes the potential adverse effect on a client’s interest due to the passage of time or missing a statute of limitations and also makes the very practical observation that even when a client’s case is not substantively harmed, “unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness.”

Suffering from substance abuse or mental challenges may not only affect one’s ability to handle a caseload and meet deadlines, but it can interfere with the duty of adequate client communication. ABA Rule 1.4 requires, among other things, that a lawyer “promptly inform” clients of certain important decisions or circumstances, “reasonably consult” with clients about important aspects of the representation such as how to accomplish the objectives of representation, keep clients “reasonably informed” about case status, and “promptly comply” with reasonable requests for information. All of these hallmark duties of communication require a lawyer to be mentally well.

Professional Misconduct

In addition to competence, diligence, and client communication, professional wellness is also important to avoid professional misconduct. ABA Rule 8.4, Misconduct, states that it is professional misconduct for an attorney to, among other things, “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” Rule 8.4’s distinction between criminal behavior and non-criminal conduct is further explained in some of the Comment sections, as well as by case law.

ABA Rule 8.4 Comment [2] recognizes there are many types of illegal conduct that reflects poorly on the ability to practice law and acknowledges the traditional distinction made for offenses involving “moral turpitude,” defined as including “offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law.” It continues, recognizing that while a lawyer is responsible for abiding by all tenants of criminal law, “a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.”

Regarding examples, however, the Comment goes beyond recognizing egregious crimes and notes that “a pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.” Note that 8.4(b), unlike the other 8.4 subsections, requires not only a crime, but that the criminal act “reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”

Attorney Substance Abuse

Regarding what type of compromised conduct will subject a lawyer to discipline, case law provides instructive examples from all over the country. In In re Kelley (1990), a California lawyer was disciplined after receiving her second conviction for driving under the influence (DUI) while on probation for her first one. A similar result was reached in California more recently (May 2021), in In re Herich, in which the court held that an attorney who pled guilty to driving under the influence with a prior conviction also involved “other misconduct warranting discipline,” affirming the order of the hearing judge for public reproval. Even committing a first time DUI with a blood alcohol level of .25% can render the lawyer subject to discipline (People v. Miller 409 P.3d 667 (Colorado 2017)).

Substance abuse and addiction may also cause a lawyer to violate ABA Rule 1.7, which describes a potential and impermissible conflict of interest as occurring, among many other circumstances, when there is a significant risk that client representation will be “materially limited” by a “personal interest” of his or her lawyer.

Wellness Involves Finishing Well

In the wellness analysis, lawyers want to both predict and prevent ethical dilemmas that may arise due to a compromised mental or emotional state in order to enjoy a long, productive legal career. The goal is to recognize the ways in which physical or emotional aspects of mental wellness may adversely impact decision-making and proactively make lifestyle choices to ensure healthy living. Taking steps to improve both physical and mental wellness can improve competence, confidence, and success—from the boardroom to the courtroom.

Wendy L. Patrick, Esquire, is a career trial lawyer, past chair of the California State Bar Standing Committee on Professional Responsibility and Conduct, and Master of the Bench, team leader, and programs chair of the Louis M. Welsh American Inn of Court in San Diego, California.

© 2022 Wendy L. Patrick, Esquire. This article was originally published in the March/April 2022 issue of The Bencher, a bi-monthly publication 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 written consent of the American Inns of Court.