This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

self-study / Competence Issues (Addressing Substance Abuse and Physical/Mental Impairment)

Legal ethics and mental health during ‘these uncertain times’

Louie H. Castoria

Partner, Kaufman, Dolowich & Voluck LLP

425 California St 21st Fl
San Francisco , CA 94104

Phone: (415) 926-7601

Fax: (415) 926-7601

Email: lcastoria@kdvlaw.com

UC Berkeley Boalt Hall

Louie is also a private mediator at CastoriaDisputeResolution.com, a mandatory settlement conference officer for the San Francisco County Superior Court, an adjunct professor at Golden Gate University School of Law, and founder of the Coastal Literary Arts Movement (CLAM), a 501(c)(3) nonprofit promoting bilingual literary appreciation and independent journalism in small communities. He also finds time to write a weekly humor column.

Law can be a stressful profession.

Some fields of law, especially litigation, are adversarial by design. In providing all our legal services we must zealously represent our clients' interests, while other lawyers may be zealously representing opposing interests. Long hours, heavy responsibilities, the constant drumbeat of unforgiving deadlines -- is it any wonder that the Hazelden Betty Ford Clinic estimates 36% of lawyers struggle with alcohol abuse? In a 2015 study, the clinic found that 28.3% of surveyed lawyers reported experiencing mild to extremely severe depression, 19.2% had experienced mild to severe anxiety, and 22.7% had experienced mild to severe levels of stress.

Then along comes COVID-19, disrupting everyone's routines, depriving us of simple pleasures such as handshakes, dining out, and in-person court appearances. The pandemic would have been enough to exacerbate our work stress, but has been compounded by historic wildfires, civic unrest, and even a frontal attack on the U.S. Capitol.

We cope with anxiety, stress, depression and other imbalances in our own ways, such as meditation, physical activity, hobbies, prayer, and escapist entertainment, but there may come a breaking point, or a severely-bending point. We're only human.

Ethical Complexities

A thought-provoking article on lawyers facing mental health challenges was published on Jan. 15, by St. Mary's Law School (Texas), "Punishing the Victim: Model Rule 1.16(a)(2) and Its Relation to Lawyers with Anxiety, Depression, and Bipolar Disorder" (D.Esquivel, 11 St. Mary's Journal on Legal Malpractice & Ethics 108).

Without mentioning COVID-19, the article argues that clients would be better-served if state bar disciplinary proceedings did not disbar or impose long suspensions on attorneys with mental conditions if they have a realistic chance of recovery. At a time when a lawyer's objectivity may be at a low ebb, but with anxiety at an apex, the threat of losing one's livelihood may override concern for clients' needs. The article's author also recommends that suspensions based on mental health issues be combined with mandatory psychotherapy to encourage a return to full professional effectiveness.

California's Rules of Professional Conduct require that we self-monitor our mental states to protect our clients. Rule 1.16, "Declining or Terminating Representation," mandates: "(a) [A] lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: ... (3) the lawyer's mental or physical condition renders it unreasonably difficult to carry out the representation effectively[.]" (Emphasis added.)

Section (b) sets a similar, but permissive rule: substituting "may" for "shall" and "difficult" for "unreasonably difficult."

The corresponding ABA Model Rule 1.16 puts it differently: Lawyers have a duty to forego or resign from representation when they have a mental condition that "materially impairs" their ability to provide representation for clients. This is somewhat more precise than California's "unreasonably difficult" or "difficult" standards.

The St. Mary's article puts it bluntly: "as soon as the lawyer becomes aware of his or her condition and feels it will materially impair representation of any client, the lawyer is placed under the mandatory duty to withdraw."

Neither the California nor ABA formulation provides a satisfying standard. Must the "mental condition" fall within the American Psychiatric Association's current Diagnostic and Statistical Manual, DSM-5? Must it be professionally diagnosed, or may lawyers who are not also licensed in psychiatry self-diagnose? How may a nonlawyer psychiatrist assess whether a condition "materially impairs" the lawyer's ability to provide legal services, or draw the line between difficulty in providing services and unreasonable difficulty?

In addition to the lawyer and the psychotherapist, there are at least three other stakeholders in these decisions:

• The client, having chosen the attorney in the first place, may not want to change horses midstream. At what point does the client's preference cross over into involuntary servitude?

• A judge, in some jurisdictions and circumstances, must approve an attorney's withdrawal from a case. If the withdrawal is contested, how can the attorney prove material impairment without making a public record of confidential medical or psychiatric information?

• The attorney's law firm, corporate law department, or other employer has an interest in protecting clients and avoiding malpractice. Can that be done without violating the Health Insurance Portability and Accountability Act, the Americans with Disabilities Act, state laws, or the employer's personnel policy manual? ABA Formal Ethics Opinion 03-429 recognized that law firms may have a direct role to intervene when a colleague with an impairment does not recognize it, or is in denial.

These are perilous waters to navigate. Our pole star must be to protect the clients, which may mean protecting them from their lawyers' temporary nervous debility, and in the process speeding our recoveries.

When It's Just Too Much

People in all walks of life often don't see the early warnings of anxiety, depression, and other mental health challenges. The St. Mary's Law article offers some telltale signs, citing other sources, including:

• Depression: persistent sadness, "empty mood"; feelings of hopelessness, guilt, worthlessness; loss of interest in activities and hobbies; fatigue; difficulty remembering, concentrating, or decision-making; irritability.

• Anxiety: excessive worry about daily activities, constant restlessness, difficulty concentrating, being easily startled, insomnia, light-headedness, and breathlessness.

• Bipolar disorder: periodic episodes of contrasting and extreme elation and sadness, excitement and restlessness, hyperactive thoughts and inability to concentrate or make decisions, increased interest in some activities and lack of interest in nearly all experiences.

On any given day we might look in the mirror and see one or more of these symptoms in ourselves. These may not mark that we're on the verge of anything. As an armchair psychologist, I think the time to start worrying isn't when one feels stressed or anxious -- who isn't these days -- but when those feelings interfere with our abilities.

One barometer of COVID-19's societal impacts of mental health: the therapeutic community is reporting its own burnout symptoms, and looking for ways to cope. "The COVID-19 era: How therapists can diminish burnout symptoms through self-care," Current Psychology (Oct. 31, 2020).

Assistance Is a Click or Call Away

Lawyers who are experiencing mental or physical conditions that impact their abilities to serve clients can take steps to return to better health.

In addition to options under federal and state laws, such as the Americans with Disabilities Act, some health insurance plans offer Employee Assistance Programs, which provide a number of free or low-cost therapy sessions.

State bar associations also offer help through Lawyer Assistance Programs. In 2012 such programs assisted lawyers with various mental health impairments, 41% for depression, 23% for anxiety, and the remainder for other disorders. Also, trusted colleagues, managing partners and mentors can also be a resource for guidance and advice.

California's LAP is confidential, so poses no threat of triggering a regulatory hearing, and can be reached at 877-LAP-4HELP (877-527-4435), by email at or at the State Bar's website. Its website states, "We promise confidentiality -- we release no information about your participation in the program without your knowledge or consent. Participation is confidential as mandated by Business and Professions Code §6234."

The sanitized euphemism for COVID-19, "these uncertain times," can become more certain if we take care of ourselves and one another, for the sake of our clients, our colleagues, and our families. 

#888

Submit your own column for publication to Ben Armistead


Related Tests for Competence issues (addressing substance abuse and physical/mental impairment)

self-study/Competence Issues (Addressing Substance Abuse and Physical/Mental Impairment)

Using resilience tools to maintain high-level performance

By Steven Flannes Ph.D

self-study/Competence Issues (Addressing Substance Abuse and Physical/Mental Impairment)

Mindfulness practice can be a life-changer for law students, lawyers and judges

By A. Marco Turk

self-study/Competence Issues (Addressing Substance Abuse and Physical/Mental Impairment)

Mindfulness: What to Do When the Need for Help Arises

self-study/Competence Issues (Addressing Substance Abuse and Physical/Mental Impairment)

Alternative Discipline Program can help attorney addicts

By Heather E. Abelson

self-study/Competence Issues (Addressing Substance Abuse and Physical/Mental Impairment)

Key to Competence – Be Mindful of Your Mind

self-study/Competence Issues (Addressing Substance Abuse and Physical/Mental Impairment)

Knowing When to Quit


self-study/Competence Issues (Addressing Substance Abuse and Physical/Mental Impairment)

Addressing Substance Abuse