Key advice for dealing with lawyers’ impairment

Impaired lawyers can destroy careers, destroy friends and colleagues, and even destroy law firms, warned Roger E. Warin, Steptoe & Johnson, LLP in Washington, D.C. during an online ABA-CLE program, “The Impaired Lawyer from the Law Firm's Point of View.” Missed deadlines, inattention to work and a less than thorough work product are all signs of impairment.

In years past, “impairment” usually meant alcoholism, but drug use and abuse – both prescription and illegal, as well as burn-out and dementia, are all forms of impairment.  While there is no easy, pat way to address impairment, Warin emphasized the need to “Deal with it. Deal with it promptly, and deal with it openly.” Warin was not implying that the whole firm should get involved, but that those who need to know and are being affected, should be aware. Ignoring the problem may lead to a disaster, Warin stressed.

How a firm handles a lawyer’s impairment depends on the employment relationship. For example, if the impaired lawyer is an employee of a firm, there will be extensive regulation to worry about; dealing with an independent contractor, however, involves few regulations. In addressing the impairment, Ed Harnden of Barran Liebman in Portland, Ore., cautioned that a firm must be aware of the federal and state labor and employment laws that apply.

Furthermore, additional laws and considerations may come into play if the impaired lawyer is a partner versus simply an employee, i.e., fiduciary responsibilities and partnership agreements.

Some of the principal employment laws to know include the Americans with Disabilities Act, which sets confidentiality standards and requires accommodation of protected disabilities, and the Family Medical Leave Act, which requires employers with 50 or more employees to grant leave for a variety of conditions.

Given these protections, firms should proceed carefully. Some suggestions on a cautious approach include:

• Establishing and maintaining institutional standards so that behavioral and performance problems are identified at an early opportunity
• Identifying specific unacceptable behavior, such as erratic work hours
• Confronting the lawyer with factual information and observations, and providing an opportunity for explanation or a request for assistance
• If appropriate, requesting an evaluation by a healthcare provider to determine whether there is a medical problem and, if so, what course of treatment is recommended
• Imposing appropriate requirements, including a “last chance” or “return to work” agreement.

In addition to Warin and Harnden, panelists included Donald N. Hilliker, McDermott, Will and Emery; Ann Foster, Texas Lawyers’ Assistance Program in Austin; and moderator John H. Riddle, Nixon Peabody LLP.

“The Impaired Lawyer from the Law Firm's Point of View” was sponsored by the Standing Committee on Lawyers' Professional Liability; Commission on Lawyer Assistance Programs; General Practice, Solo and Small Firm Division; Section of Labor and Employment Law; Law Practice Management Section; and the ABA Center for Continuing Legal Education.

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