Ethics: Depression as a disciplinary issue

By Thomas P. McGarry and Thomas P. Sukowicz
Hinshaw & Culbertson

The Wall Street Journal recently published an article on attorneys who are affected by depression. (”Opening Up About Depression,” by Sue Shellenbarger, Wall Street Journal, Dec. 13, 2007, page D1.) The article reported that some studies show that 19 percent of lawyers battle depression, compared with 6.7 percent of the general population. It also reported that 20 percent of attorneys were problem drinkers, compared with 10 percent of the general population.

Depression, other mental and emotional problems, and substance abuse can become issues to be addressed by the ARDC. For example, when depression, a mental or emotional problem, or substance abuse is so severe that an attorney cannot effectively function, deadlines will be missed, and other mistakes will be made.

A lawyer’s inability to handle a legal matter in a competent manner may run afoul of Rule 1.1(a), which requires a lawyer to provide compe­tent representation to clients. Competence requires the knowledge, skill, thorough­ness, and preparation necessary for the representation.

Section (b) of that rule prohibits a lawyer from representing a client if the lawyer knows or should reasonably know that he or she is not competent to provide the representation.

Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in representing a client. Depression that leads to an inability to meet deadlines or to respond to the requests of the client or opposing counsel may result in a violation of Rule 1.3.

The administrator of the ARDC commonly charges a violation of this rule when lawyers miss statutes of limitations or otherwise fail to take action, and the client’s legal matter is harmed.

Lawyers are also required to communicate with clients. The general rules regarding communication with clients are contained in Rule 1.4, which provides that lawyers keep clients reasonably informed about the status of their legal matters and promptly comply with reasonable requests for information. It also requires that lawyers explain matters to clients to the extent reasonably necessary to permit them to make informed decisions regarding the representation.

Lack of communication is one of the most common reasons that clients complain about their attorneys to the ARDC. Lawyers may be depressed to the extent that they cannot return client calls or provide status reports. At times, they may also stop communicating with clients because they do not want to admit that a mistake has been made.

Lawyers who are unable to meet deadlines and communicate with clients often become the subject of complaints to the ARDC.

When the ARDC charges a lawyer with neglect or lack of communication in a formal disciplinary proceeding, the fact of the attorney’s clinical depression or other mental or emotional condition is evidence to be considered in mitigation of the misconduct.

Mitigation does not excuse the misconduct, but it often results in a lesser sanction and may result in a sanction that includes probation, thus allowing the attorney to continue to practice law during the probationary period as long as the attorney complies with the conditions of probation.

Lawyers who have neglected client matters due to depression have been suspended with their suspensions stayed after a period of time with obtaining treatment for the depression one of the conditions of probation. 04 CH 113, M.R. 21395 (2007); 03 CH 94, M.R. 19794 (2005).

When an attorney’s depression becomes so severe that he or she is incapacitated from continuing to practice law, the administrator may initiate proceedings under Supreme Court Rule 758 to have the attorney transferred to disability inactive status.

Transfer to disability inactive status requires the attorney to stop practicing law until the removal of the disability or to continue to practice law subject to conditions imposed by the Supreme Court. Upon the filing of a petition with the Court, the attorney may be allowed to transfer back to active status if the administrator agrees that the disability has been removed. If the administrator objects to the petition, the matter may be referred to the Hearing Board.

Because of the disciplinary action that could result from neglect and lack of communication, as well as civil liability for malpractice, lawyers who find themselves in a state of depression should seek assistance to deal with that condition.

Ignoring the problem is risky, given the kinds of errors that can result from severe depression and the kinds of disciplinary action that may ensue if those errors occur.

If a lawyer believes there is nowhere else to turn, the Lawyers’ Assistance Program may be able to help. LAP provides confidential assistance to attorneys dealing with alcohol abuse, drug addiction, and mental health issues such as depression.

Since 1980, LAP has been helping attorneys to address problems such as these before they jeopardize the lawyer’s career. You may contact LAP at 800-LAP-1233 or gethelp@ illinoislap.org. The LAP Web site is www.illinoislap.org.