Impaired Colleague: Addressing Attorney Competence, Warning Signs, and Getting Help

April 2024 

By Erin Joyce and David Wall

A sound mind is one of the most important tools an attorney has, which is required to properly advocate for clients, manage large workloads, and handle multiple deadlines. 

The legal profession often puts lawyers in high-pressure, stressful situations that have an undeniable negative effect on one’s mental health and can lead to harmful, self-destructive behaviors and cognitive impairment if not properly handled. Properly managing and monitoring stress levels is important to maintain a sound mind. While there are many warning signs to look out for, for yourself and your colleagues, recent surveys and studies provide valuable information on which demographics are more at risk for these problems.

Who is Most At Risk

California Lawyers Association participated in a research project that found that lawyers with high stress are 22 times more likely to contemplate suicide, and all lawyers are two times more likely to experience suicidal ideation than the general population.

The 2020 project also examined gender-specific risk factors for mental health problems among 2,863 licensed attorneys and found that females and younger attorneys experience worse mental health issues, with 24% of female attorneys having considered leaving the profession due to stress as opposed to 17% of male attorneys. What is more, the top reason female attorneys consider leaving their profession is due to overworking. 

Additionally, the study found that since the COVID-19 pandemic, female attorneys who reported an increase in drinking were almost seven times more likely to engage in risky drinking. Male attorneys who reported an increase in drinking were about four times more likely to engage in risky drinking. This last statistic is worrisome, as turning towards alcohol to manage stress can lead to dependency, which can cause or worsen cognitive impairment. 

Another study conducted by the ABA Commission on Lawyer Assistance Programs found that 21% to 36%, or roughly one in three lawyers, struggle with alcohol abuse. With many work-related social events that attorneys attend or take part in, which often involve alcohol, it would be wise for employers to acknowledge and consider these findings.

Managing Work-Related Stress

Considering this information, many ways exist to manage work-related stress. The first step, often the hardest, is making beneficial lifestyle changes such as exercising more, having a healthier diet, getting adequate sleep, practicing mindfulness or meditation, and even speaking to a therapist. 

Simple workplace changes can also help with feeling overwhelmed. Time is something everyone needs more of, so hiring a paralegal or assistant should be considered if you find yourself falling behind at work or struggling to meet deadlines. Additionally, legal technologies and organized processes or workflows can expedite time-consuming work. Finding a mentor is also beneficial, as they have experience and can give advice. Talking through your issues with someone who understands them is invaluable.

Age-Related Cognitive Changes

While stress and alcohol/drug abuse are certainly huge factors when it comes to cognitive impairment, age also plays a role. In California, the average age of an attorney is 50 years old, with 16% of active attorneys over 65 (CalBar). As people get older, they may become more forgetful, have a lower attention span, and start showing signs of impaired judgment. The American Academy of Neurology estimates that 10% of people over the age of 65 develop dementia. That number jumps to over 50% by the age of 85 (Arvanitakis). As an attorney, it is essential to be on top of and evaluate one’s cognitive performance, make note of any changes, and address them responsibly.

When a lawyer exhibits problematic behavior that leads one to believe they are impaired, then subordinate, supervisory, and other lawyers who have observed said behavior have the responsibility to step in. Problematic signs include smelling of alcohol, acting irrationally, and appearing confused. These can affect the impaired attorney’s competence, diligence, communication with clients and opposing counsel, and the status of representation. When a colleague’s behavior becomes a concern, the most obvious action is to inform a supervisor/employer or see if they have an established policy to handle the situation. 

If you would like to speak to a colleague directly about your concerns, adequately prepare for the conversation before it takes place, such as analyzing your biases or stereotypes and preparing to refer them to resources provided by the Lawyer Assistance Program and others. When it comes time to discuss, address the specific events you observed and why they are cause for concern. Listen to what they have to say and be prepared for defensiveness; acknowledge their response and be supportive. If you are unsure of what to do next or if reporting is necessary, call the State Bar ethics hotline. 

Furthermore, consider the Standing Committee on Professional Responsibility and Conduct’s Formal Opinion No. 2021-206, which addresses mental impairment that impedes a lawyer’s ability to practice law (Standing Committee on PRC). An impaired lawyer is not protected from breaking the Rules of Professional Conduct and continues to hold the same responsibilities as any other lawyer. Moreover, the Rule of Professional Conduct (RPC) 8.3, which came into effect on August 1, 2023, requires lawyers who know of credible evidence that another lawyer has engaged in certain misconduct to report it to the State Bar (CalBar, 8.3).

Where to Find Help and Resources

ABA Commission on Lawyer Assistance Programs (CoLAP), articles, podcasts:

https://abacolap.wordpress.com/author/abacolap/

The Other Bar: Recovery program for California law students, bar applicants, attorneys, and judges, https://otherbar.org; hotline: 800-222-0767.

Lawyer Depression Project: Free resource for attorneys, law students, paralegals, and administrative professionals https://www.lawyersdepressionproject.org/.

988 Suicide and Crisis Prevention Hotline — call or text 988.

Erin Joyce is a member of the Solo and Small Firm Section Executive Committee and the Health and Wellness Committee of California Lawyers Association. Her law firm, Erin Joyce Law, PC, provides attorney ethics advice and State Bar defense.

David Wall is a law clerk at Erin Joyce Law, PC. He graduated from the University of Southern California and hopes to begin his legal education in the Fall of 2024.

CITATIONS

Anker, J., & Krill, P. R. (2021, May 12). Stress, drink, leave: An examination of gender-specific risk factors for mental health problems and attrition among licensed attorneys. PLOS ONE.

Arvanitakis, Z., Shah, R. C., & Bennett, D. A. (2020, September 1). Diagnosis and Management of Dementia: A Review. National Library of Medicine National Center for Biotechnology Information.

CalBar. (n.d.). A Wellness Guide for Senior Lawyers and Their Families, Friends, and Colleagues. The State Bar of California.

CalBar. (n.d.). Rule 8.3 Required Reporting. The State Bar of California.

CLA. (2023, February 13). Lawyers Experience Heightened Risk of Suicidal Ideation Compared to Other Groups; Stress, Loneliness, Work Overcommitment and Gender Among Top Predictors of Risk. California Lawyers Association. 

Henson, P. (2023, September 12). Addiction & substance abuse in lawyers: Statistics to know. American Addiction Centers.

Standing Committee on PRC. (n.d.). The State Bar of California, Standing Committee on Professional Responsibility and Conduct, Formal Opinion No. 2021-206. The State Bar of California.