This is the second blog a series dedicated to the ethical and malpractice implications of the covid19 crisis for lawyers. In the first blog we dealt with some of the ethical and malpractice issues deriving from working from home under the duties of confidentiality, competence, and supervision. We deal here with another powerful trigger in this pandemic: physical and/or mental illness caused by the pandemic. See American Bar Association Program, Emerging Lawyer Risk Management and Professional Liability Coverage Issues (“ABA CLE”). The ethical duties implicated here include competence, supervision, and the obligations to tribunals and third parties.
Pandemic effect on physical and mental wellbeing of lawyers.
First, the most obvious impairment of lawyers resulting from the pandemic occurs when a lawyer becomes sick with Covid19. The rules of ethics impose obligations to clients and others that are not qualified with an exception if the lawyer is sick. See ABA Resources, Intervention and Impairment (September 19, 2018) (online). If a lawyer becomes ill with Covid19, he can be impaired for several weeks. The severity of the illness goes from mild/moderate (81% of cases) to severe (14%)[i] to critical (5%). 19% of patients are hospitalized and 6% are admitted to intensive care. [ii] Even in the best-case scenario (mild/moderate illness), the impairment is likely to last several weeks. More than 1 million American have already been infected by the virus, the number is growing daily, a second or third wave is likely, and the current numbers are likely to underreport the degree of infection. There are more than 900,000 lawyers in the US, and even with the current level of infection (approximately .3% of the population) it is likely that several thousand lawyers are already infected. In addition, while the median age for lawyers in the US is 49, the population of lawyers above 60 (which is considered the threshold beyond which the virus has more complication)[iii] is substantial.[iv] Given this level of risk, law firms should adopt policies in case its lawyers become ill.
Second, in January 2020, before the covid19 crisis became apparent, Nathan Crystal wrote “Firm Obligations When a Lawyer is Impaired”.[v]
Lawyers are twice as likely to become mentally impaired as members of the population as a whole, and substantially more likely than other professionals to suffer from such impairment. In 2016, the ABA Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation published The Prevalence of Substance and Other Mental Health Concerns Among American Lawyers. While these problems have been known for years, see John Freeman, Dealing with Impaired Lawyers, 15, S.C. Lawyer 9 (Sept. 2003) (available online), the ABA study, which is available online, is the first comprehensive, national assessment of the problem. The study was based on a sample of 12,825 lawyers nationwide assessing (1) alcohol use, (2) drug use, and (3) symptoms of depression, anxiety, and stress.
With the covid19 crisis it is very likely that these issues will increase, creating a range of problems for both individual lawyers and their firms. “Ongoing monitoring and prompt attention to mental health issues” should be part of the firm’s risk management (ABA CLE)
Firm Obligations in dealing with lawyer impairment
Some opinions on firm’s obligations relating to lawyers’ impairment are illustrative for what firms should do even if they were issued before the covid19 crisis ensued. In Ethics Advisory Opinion #377 (“DC Opinion”), the District of Columbia Ethics Advisory Committee explored the ethical obligations of law firms when a lawyer in the firm comes to suffer from an impairment. The Committee relied on ABA Formal Opinion #03-3429. The DC Opinion advises that, for the firm, there is a duty of prevention of noncompliance with ethics rules by the impaired attorney and in some cases a duty of reporting may arise. The DC Opinion specified that partners and other managerial and supervisory lawyers have an obligation
to take steps to prevent an impaired lawyer from violating the Rules, to develop policies addressing impairment, and to create a firm or agency culture that allows subordinate lawyers and other personnel to report concerns regarding the impairment of a lawyer without reprisal. DC Opinion.
On reporting, the DC Opinion states
Rule 8.3 requires a lawyer, regardless of managerial or supervisory authority, to report an impaired lawyer to the appropriate professional authorities including, but not limited to, the District of Columbia Office of Disciplinary Counsel,4 if the impaired lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness to practice law, unless such disclosure would be prohibited under the duty of confidentiality owed to clients under Rule 1.6 or other law. See Footnote 3. Further, if the firm or government agency removes the impaired lawyer from a matter, it may have an obligation under Rule 1.4 to discuss with the client the change in staffing on the matter. The duty to discuss removal of government lawyers from a matter may be different because of government policies or regulations.
What should a firm do in the covid19 crisis to deal with lawyers’ impairment?
If a lawyer becomes ill with the covid19 or develop a depression or an addiction because of the virus crisis, the impaired lawyer needs to consider whether to withdraw from the representation of his/her clients. Under Rule 1.16(a)(2) a lawyer is required to withdraw from representation if “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.”
However, as the DC opinion correctly points out, “lawyers suffering from an impairment may be unaware or in denial that they have a problem, in which case lawyers with supervisory obligations may be required to act.”[vi] In the particular case of a lawyer becoming ill with covid19, the worsening of the condition may be sudden or obligations towards other ill family members might distract the lawyer and he might not consider whether he should withdraw.
The firm for which the impaired lawyer works, however, cannot rely on the impaired lawyer’s compliance with this duty. As Nathan Crystal points out in the article cited above, Rule 5.1(a) impose obligations on partners and other lawyers with managerial authority in the firm to adopt measures to give reasonable assurance that all lawyers in the firm comply with the rules of professional conduct. In this covid19 crisis, this Rule should require law firms to establish procedure to deal with the possible impairment of lawyers during the crisis. In the cited article, Nathan Crystal recommended firms to consider adopting procedures to deal with lawyers’ impairment.[vii] These procedures are particularly important now.
Some jurisdictions have explicit rules about the firm’s duty to take actions in case a lawyer is impaired.[viii] In the cited article, Nathan Crystal gives recommendations that seem to be written for this covid19 crisis:
Firm policies and procedures should identify possible actions, but the precise steps to take will depend on the level and duration of the impairment. Firm action is required when the level of the impairment is such that it is likely to have a significant or material effect on the lawyer’s professional obligations.
The firm … should consider the following actions:
(1) speaking with the impaired lawyer about the perceived impairment to determine the lawyer’s perspective on the issue and possible actions;
(2) requiring the impaired lawyer to seek assistance or professional evaluation as a condition of continued employment;
(3) referring the lawyer to the [bar organizations’ services that assist lawyers with impairment]; or
(4) providing the lawyer with the names of mental-health professionals.
The firm may also consider seeking the advice of mental-health professionals to assess and make recommendations about the situation. …
In extreme cases the firm may need to suspend the lawyer from client representation while the impairment continues. In less extreme situations, the firm might limit the lawyer’s work environment or duties for example by precluding the lawyer from handling trials while the impairment persists.[ix]
For more information, Nathan M. Crystal & Francesca Giannoni-Crystal.
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[i] If a patient’s conditions are severe, he is unlikely being able to perform any work, with the most common complications of severe COVID-19 being: “pneumonia, hypoxemic respiratory failure/ARDS, sepsis and septic shock, cardiomyopathy and arrhythmia, acute kidney injury, and complications from prolonged hospitalization including secondary bacterial infections, thromboembolism, gastrointestinal bleeding, and critical illness polyneuropathy/myopathy.” Source: https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html
Age is a strong risk factor for severe illness, complications, and death. mong more than 44,000 confirmed cases of COVID-19 in China, the case fatality rate was highest among older persons: ≥80 years: 14.8%, 70–79 years: 8.0%, 60–69 years: 3.6%, 50–59 years: 1.3%, 40–49 years: 0.4%, <40 years: 0.2%. Id.
[iv] See, Robert J. Derocher, The New Senior Lawyer: Is Your Bar Ready?, available at https://www.americanbar.org/groups/bar_services/publications/bar_leader/2006_07/3105/senior/ making the point that, already in 2006 “Approximately 40,000 lawyers nationwide will turn 60 this year alone” and that for example, in the state of Washington “nearly 10 percent of the state bar’s 29,000 members are age 60 or older.”
[v] Nathan M. Crystal, Firm Obligations When a Lawyer is Impaired, SC Lawyer 15 (January 2020).
[vi] Id.
[vii]
Firms and agencies should strongly consider adopting procedures that encourage lawyers and staff to report concerns or observed impairment to appropriate personnel in the organization. Such procedures could include a reporting hotline, approval of anonymous reporting, and designation of a “neutral” lawyer to receive and process reports. Reporting should be encouraged, but not required except with mandated by Rule 8.3. Id.
[viii] For example, South Carolina has. SCRPC 5.1(d) provides as follows:
Partners and lawyers with comparable managerial authority who reasonably believe that a lawyer in the law firm may be suffering from a significant impairment of that lawyer’s cognitive function shall act to address the concern with the lawyer and may seek assistance by reporting the circumstances of concern pursuant to Rule 428, SCACR.
[ix] Id.