Professional Misconduct by Mentally Impaired Attorneys: Is There a Better Way to Treat an Old Problem?
Bernard, Kristy N
The Model Rules of Professional Conduct (“Model Rules”) exist to ensure that attorneys abide by specific standards of conduct and provide a minimum quality of service to the public. Violations of the Model Rules hamper these goals and threaten the already suspect legal profession. The American Bar Association Standards for Imposing Sanctions (“ABA Standards”) provide guidelines for disciplining lawyers who violate the Model Rules. These guidelines anticipate different scenarios of professional misconduct, including the unique situation when a lawyer violates the rules, not due to malicious intent, but due to mental impairment whether caused by illness or substance abuse.1 The ABA Standards deem mental impairment a mitigating factor in the discipline process, a factor that neither justifies unethical actions nor shields the attorney from discipline; rather, it may allow for a lesser sanction.
This Note will first outline the scope of mental impairment and describe the professional misconduct usually committed by mentally impaired attorneys. Sections II and III will then discuss the sanctions traditionally imposed upon such attorneys and examine the purpose of attorney discipline. sections IV and V will analyze the growing trend of disciplinary diversion, a different method for dealing with professional misconduct by mentally impaired lawyers, based on calls for change in the disciplinary process.2 Finally, section VI will argue that diversion programs present a more effective and purposeful method for achieving the goals of sanctioning and serving public policy.
I. MENTAL IMPAIRMENT
In ethics opinions and disciplinary cases, attorney mental impairment is usually seen as having several causes: “emotional problems,” illness, and substance abuse.3 These causes may work concurrently or independently, depending on the individual. Mental impairment manifests itself in a variety of ways, and may be temporary or permanent.4 As such, the category of mental impairment in the context of disciplinary action is quite broad.
Specifically, definitions of mental impairment range from emotional problems to severe psychosis.5 Gregory Sarno provides a comprehensive view of the breadth of this category. In his writings on the subject, Sarno outlines the category of mental impairment as containing psychoses, neuroses, alcoholism, drug dependency, emotional instability, or some combination thereof.6 A 2003 American Bar Association formal ethics opinion cites alcoholism, substance abuse, and Alzheimer’s disease as examples of mental impairment conditions.7 In addition, the EEOC broadly defines mental impairment with regard to the Americans with Disabilities Act as “[a]ny mental, emotional, or psychological disorder; [m]ajor depression; [b]ipolar disorders; [ajnxiety disorders (e.g., obsessive compulsive disorders, panic disorders, and post-traumatic stress disorder); [schizophrenia; [personality disorders.”8
Because no single definition of mental impairment is well established, courts consistently rely on section 9.3 of the ABA Standards and Rule 10 of the Model Rules for Lawyer Disciplinary Enforcement for guidance in disciplinary cases in which the attorney’s mental status is in question.9 These guidelines permit consideration of mental impairment as a mitigating factor when manifested as “personal or emotional problems, or mental disability or chemical dependency including alcoholism or drug abuse.”10 State courts used these guidelines to clearly establish each of the following as a form of mental impairment: depression, personality disorder, emotional distress, bipolar disease, attention deficit disorder, alcoholism, and drug abuse.11 While these state court opinions evidence the breadth of the category for consideration, they also exemplify the common denominator: mental impairment is an illness or a substance dependency that diminishes the mental capacity required for an attorney to proficiently perform the duties he owes to his client, the public, the legal system, and the legal profession.12
II. SANCTIONING MENTALLY IMPAIRED ATTORNEYS
“Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct.”13 The American Bar Association asserts that “[i]mpaired lawyers have the same obligations under the Model Rules as other lawyers. Simply stated, mental impairment does not lessen a lawyer’s obligation to provide clients with competent representation.”14 As a result, mentally impaired lawyers who violate ethics rules are subject to the same sanctions as their un-impaired counterparts. They are not absolved of the responsibility to act professionally and ethically despite the effect of their mental illness or substance abuse.
A. DETERMINING THE APPROPRIATE SANCTION
Self-regulation is both a right granted and a responsibility given to the legal profession. Imposing appropriate sanctions is an important component of acceptable self-governing. Ultimately, the goal of discipline is as follows:
First, the j udgment must be fair to society, both in terms of protecting the public from unethical conduct and at the same time not denying the public the services of a qualified lawyer as a result of undue harshness in imposing penalty. second, the judgment must be fair to the respondent, being sufficient to punish a breach of ethics and at the same time encourage reformation and rehabilitation. Third, the judgment must be severe enough to deter others who might be prone or tempted to become involved in like violations.15
To ensure that attorneys are appropriately disciplined for misconduct, the ABA published the Standards for Imposing Lawyer Sanctions.’6 Because courts and state bar associations use a case-by-case approach based on the facts,17 these standards offer assistance with disciplinary proceedings.18 The Standards attempt to generate consistency regarding sanctions imposed upon attorneys for professional misconduct. Four factors are listed as those to be considered when imposing sanctions: (1) the duty violated; (2) the lawyer’s mental state; (3) the potential or actual injury caused by the misconduct; and (4) the existence of aggravating or mitigating factors.19
1. DUTY VIOLATED AND INJURY CAUSED
Attorneys owe duties to their client, the general public, the legal system, and the profession as a whole.20 Because mental impairment may affect the mental acuity necessary to perform professionally and ethically, many attorneys suffering from mental illness or substance dependency face an increased likelihood of becoming subject to disciplinary action for violating the Model Rules. In general, the Model Rules violated by mentally impaired attorneys are those related to the client-lawyer relationshipcompetence, diligence, and confidence.21 However, ethical misconduct is not limited to these rules. Disciplinary cases demonstrate that mentally impaired attorneys violate a variety of rules, depending on the type and extent of the incapacity.22
An ABA formal opinion discussing mental impairment cites Model Rules 1.3 and 1.4 as the most likely ethical violations committed by mentally impaired lawyers.23 These rules specifically outline the competence and diligence standards owed to clients. In addition, mentally impaired attorneys often violate Rule 1.16, the rule that requires withdrawal due to diminished mental capacity.24 A violation of this rule usually results in disciplinary action because it exists in part to prevent misconduct by mentally impaired lawyers. Presumably, if an attorney withdraws at the onset of mental impairment, he will prevent a Model Rules violation caused by such impairment.
2. MENTAL STATE
The ABA Standards prescribe consideration of the lawyer’s mental state when determining the appropriate sanction.25 The examination of mental state, however, centers on the intent of the attorney when committing misconduct and not on whether the attorney suffers from some sort of impairment.26 When considering this factor, courts question whether the attorney knowingly violated his duties.27 They look for a conscious objective or purpose to accomplish a particular result, or evidence of acting with conscious awareness of the nature of the conduct. Intent for misconduct is an absent factor in most disciplinary actions involving mentally impaired attorneys.28 Because mental impairment causes diminished mental capacity, attorneys can be placed in a position where they are unable to comprehend the wrongfulness of their actions or to prevent the misconduct.29
3. MENTAL IMPAIRMENT AS A MITIGATING FACTOR
In accordance with the guidance provided in the ABA Standards, courts and bar associations usually consider mitigation when dealing with mental impairment in the lawyer disciplinary process.30 ABA Standard 9.3 lists personal or emotional problems, mental disability, and chemical dependency including alcoholism or drug abuse as mitigating factors.31 However, conditions apply to the use of these mitigating factors, and mitigation can be rendered moot by aggravating circumstances, such as prior misconduct.32
In order to use mental impairment as a mitigating factor, the attorney must establish a causal nexus between the impairment and the misconduct.33 This connection is important because it addresses the question of the lawyer’s mental state. The causal link demonstrates the misconduct was due, at least in part, to impairment as opposed to malicious intent.34 While cases fail to explicitly describe the elements of a causal connection in disciplinary matters, courts and bar associations tend to rely on medical testimony and conclusions drawn from the other evidence presented. Typically, testimony by doctors and the attorney himself is used to establish the illness or dependency, and then the court or predominant fact-finder judges whether the misconduct is tied to the mental impairment.35
The causal connection requirement has been described in guidelines and cases as either a “but, for” test, or a threshold of “clear and convincing evidence.” For example, the ABA characterizes mental impairment in mitigation as the “assum[ption] that, but for his mental impairment, the lawyer would be able to comply with the requirements of all of the Model Rules.”36 Similarly, in the Kersey case, the Court introduced the “but, for” test as a precedent in presiding over sanctions cases involving mental impairment.37 The “clear and convincing evidence” standard operates in much the same fashion, requiring the evidence presented to clearly establish a causal relationship to the mental impairment.38
The causal nexus requirement is not easily met. Some judicial opinions exemplify the rigorous nature of the requirement. For example, the Dixon court held that the causal connection between Dixon’s mental illness (psychological issues including personality and interpersonal relationship difficulties) and her misappropriation of funds was not sufficiently compelling to require consideration of her illness as a mitigating factor: “Dixon’s mental state did not cause and does not justify her dishonest conduct.”39 In comparable cases, attorneys face harsher punishment due to failure to establish the necessary causal relationship between the misconduct and the impairment.40 The causal link is necessary to alleviate the intent of the ethical violation because if the causal nexus is not established, the court assumes intent as the mental state.41
ABA Standards recommend the following be present for mental illness or drug dependence to be considered in mitigation: medical evidence of effect, a causal link between impairment and misconduct, a meaningful and sustained period of successful rehabilitation, and arrest of the misconduct and unlikely recurrence.42 All of these factors are not always present in the impairment disciplinary cases, but courts are usually willing to consider them anyway.43
B. TRADITIONAL SANCTIONS: PUBLIC CENSURE, SUSPENSION, AND DISBARMENT
The ABA Standards do not prescribe sanctions for specific types of Model Rules violations, but only set forth a range of suggestions based on the nature of the infraction.44 Public censure, suspension, and disbarment are the sanctions traditionally imposed in disciplinary cases involving mentally impaired lawyers, but the Standards also allow for “private,” i.e., non-public, discipline.45 These three sanctions are used in variance depending on the four ABA criteria for appropriate sanctions: severity of misconduct, injury to client or public, lawyer’s mental state, and aggravating or mitigating factors.46
Public censure, the leanest sanction of those traditionally imposed, is imposed less often than suspension and disbarment as a means of sanctioning mentally impaired attorneys.47 Because mentally impaired attorneys usually violate rules related to the lawyer-client relationship, arguably the most important ethical duty, censure is deemed too lenient a punishment.48 Censure only serves the goals of sanctioning if the attorney’s mental impairment is significantly responsible for the misconduct, or if relatively minor misconduct was caused by the mental impairment.49
Suspension is imposed in the majority of mental impairment cases upon weighing all the factors.50 Either the rules infractions themselves warrant suspension despite mental impairment, or the rules infractions warrant disbarment, and suspension is imposed as a lesser sanction due to the mitigating factor of mental impairment.51 Suspension is a less severe sanction than disbarment in that the suspended lawyer does not permanently lose the ability to practice.
Disbarment, considered the most severe sanction, is only used in the most egregious misconduct cases.52 Traditionally attorneys who mishandle funds or charge excessive fees face disbarment despite any showing of mental impairment.53 While harsh, disbarment is seen as a necessary tool because “continuing public confidence in the judicial system and the bar require that the strictest discipline be imposed in misappropriation cases.”54 Disbarring an attorney serves to protect the public from additional misconduct by the offending attorney by removing him from the profession.55
III. PURPOSE OF SANCTIONS
Misconduct by attorneys elicits one of three types of sanctions: those that incapacitate (disbarment and suspension), those that express a message of disapproval (public censure and probation), and those that serve to rehabilitate the attorney (voluntary agreements for treatment).56 These three types of sanctions share the same purpose, “to protect the public and the administration of justice.”57 Because of the obligation to self-govern, courts and bar associations take seriously the charge to protect the professional reputation and the public perception of it.58 “In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct.”59 The goal in the disciplinary process is not necessarily to punish the attorney, but “to protect the public, maintain public confidence in the bar, preserve the integrity of the legal profession, and prevent similar conduct in the future.”60
IV. A CALL FOR CHANGE: THE GROWING TREND TOWARDS NON-DlSCIPLINARY SANCTIONS
In the case of a mentally impaired attorney, the profession and the attorney are not necessarily well served by traditional sanctions such as disbarment, suspension, or some other formal reprimand. Though not excusable, misconduct caused by special circumstances warrants special treatment. When an attorney’s mental impairment is treatable and unlikely to recur, the public in general and the attorney’s clients in particular are better served by helping the attorney, with strict oversight, to overcome or otherwise deal with the mental impairment.
Over the past decade, legal commentators, judges, bar associations, and individual attorneys have added their voices to the ever-increasing opposition to these traditional rules of attorney discipline. Legal ethics, coupled with a court’s disciplinary system, can serve potentially conflicting goals: the punishment of the wayward attorney, the protection of the public and the protection of the “administration of justice.”61 In some limited instances, where an otherwise competent lawyer commits some form of misconduct attributable to a mental or physical condition62 or a substance abuse problem,63 and where that attorney is successfully treating the problem, neither the public nor the profession is well served by the temporary or permanent removal of the attorney from practice.
As early as 1965, courts recognized the need to craft sanctions that take into account mental illness or impairment of disciplined attorneys.64 Subsequently, other judges,65 legal commentators,66 students,67 and bar associations68 have recognized the need for special sensitivity in cases involving attorney impairment,69 the general need for reform,70 the often limited options for sanctions provided by states’ disciplinary rules,71 and the relative inflexibility of the ABA Standards72 in Grafting an appropriate remedy for mentally impaired attorneys.
A recent case from West Virginia illustrates the inherent limitations of the ABA Standards with regard to misconduct by mentally impaired attorneys.73 In Lawyer Disciplinary Board v. Scott, the attorney was suspended in light of his twenty-two instances of misconduct, ranging from practicing with a suspended license to failing to diligently represent a client to dishonesty.74 Instead of disbarring Scott, as was recommended by the Office of Disciplinary Counsel,75 the court decided to suspend Scott’s license for three years.76 One of the mitigating factors that the majority relied upon was medical testimony establishing that Scott suffered from “Bipolar II disorder.”77
It may seem strange either to argue against a long-term suspension or to argue for a reduction in the duration of Scott’s suspension. After all, Scott stipulated to twenty-two counts of professional misconduct78 and was sanctioned, in part, for lying to his clients.79 Because West Virginia generally follows the ABA Standards,80 the court only had a few available options for sanction.81 One justice, however, recognized the need for a sanction that was more tailored to Mr. Scott’s condition and suggested “where illness is the basis for limiting an attorney’s practice, the period of limitation should be determined by the duration of the illness, rather than by some arbitrary standard.”82 Justice McGraw did not go so far as to suggest that no suspension was necessary, but his dissent does demonstrate a call for something more appropriate.83
Another scenario that challenges inflexible disciplinary rules is presented in State ex. ReI. Oklahoma Bar Association v. Busch.84 The scenario is as follows: an attorney commits several minor infractions while suffering from an undiagnosed mental disability; upon diagnosis, the attorney undergoes treatment and ceases committing these minor violations; after receiving treatment, the affected client files a complaint based on the pre-diagnosis misconduct.85 In such an instance, any suspension would be visibly unfair and could conceivably harm the attorney’s clients by forcing them to obtain new counsel.
Numerous “unseen” mental illnesses and neurological conditions could affect an attorney’s competence yet would not continue to present a problem once the attorney receives treatment.86 What makes a reform of the current system even more pressing is the potentially lengthy duration of time between clinical onset of an impairment and its (eventual) diagnosis.87 Why suspend an otherwise competent attorney for infractions that are unlikely to recur?88
It is well established that attorneys, as a group, suffer from mental illness and substance abuse at a rate higher than the general population.89 Consequently, many local bar associations have established Lawyer Assistance Programs (“LAPs”) to help lawyers get the counseling or medical attention they need.90 A key component of many of the LAPs is a grant of civil immunity to the attorneys involved in running the programs.91 While most would agree that the attorney’s mental condition should not remove culpability for major transgressions,92 the growing presence of local LAPs and the plethora of Continuing Legal Education classes93 on the topic of substance abuse suggest an urge to educate and rehabilitate impaired attorneys.
V. DIVERSION: THE EMERGENCE OF A STANDARD
Diversion programs offer a potential solution to the problem inherent in sanctioning the misconduct of mentally impaired attorneys. These programs assist attorneys while preserving the public’s trust, and thereby conform to the goals of attorney discipline. In 1991, Arizona became one of the first states to incorporate such a device into its disciplinary rules. As first enacted, Arizona’s diversion program was broadly constructed: there could be “little likelihood” of harm to the public during the diversion period and the attorney’s performance under the diversion agreement must be able to be supervised adequately.94 Upon satisfaction of the agreement, the disciplinary action was to be dismissed.95 Little guidance was given regarding an attorney’s eligibility for diversion.
Several years after the Arizona rules were modified to include the diversion agreement, Colorado adopted a more narrowly tailored version of the diversion agreement.96 Unlike Arizona’s initial attempt at diversion, Colorado placed nine explicit restrictions on the application of its Rule 251.13.97 In addition to providing “little likelihood” of danger to the public, the alleged misconduct could not have involved fraud, theft, dishonesty, family violence, a crime, or generally anything that would warrant a sanction more severe than a public censure.98 In other words, the Colorado program was generally only applicable to ethics violations falling within Model Rules 1.3 and 1.4 (diligence and communication).
Although Colorado’s program is more limiting than Arizona’s initial attempt, it appears to have made a more lasting impression. First, Colorado’s rules expressly affirm that “[diversion shall not constitute a form of discipline,”99 and that upon successful fulfillment of the attorney’s obligations under the diversion agreement, the disciplinary matter was to be “dismissed and expunged.”100
In 2000, Alabama followed Colorado’s lead and created its own “Prediscipline Diversion Program,” but added a twist.101 As part of the diversion agreement, Alabama requires that the attorney provide an “unqualified guilty plea to the violations,”102 which has the obvious purpose of providing a strong incentive to abide by the agreement. In the event of a breach of an Alabama diversion agreement, the disciplinary action resumes, but at the sanctioning phase.103 While Alabama’s Diversion Program requires that successful diversions remain “private and confidential,”104 it also allows the “dismissal as diverted” to be considered as a prior offense in any subsequent disciplinary proceeding.105
Other states have added to the Colorado-style diversion program, and a general standard appears to be developing for structured, non-disciplinary sanctions.106 Generally, “diversion” states do not allow participation in a diversion program where the misconduct is severe, or involves theft of client funds, dishonesty, fraud, or deceit, or where the attorney has been previously disciplined (or has previously entered into a diversion program).107 States have imposed additional eligibility requirements or limitations to a greater or lesser degree, sometimes even prohibiting diversion where the “misconduct involves sexual relations” otherwise prohibited108 or limiting the program to attorneys with specific types of impairments.109 States may110 or may not111 allow either the existence or the contents of a diversion agreement to be admitted in subsequent disciplinary actions.
VI. DIVERSION AS GOOD PUBLIC POLICY
Because the primary purpose of attorney discipline is to protect the public and to ensure the proper administration of justice,112 it is easy to fashion cogent public policy arguments against diversion programs. The public at large holds a cynical view of lawyers,113 and diversion programs (established by lawyers and run by lawyers) could be seen as a self-serving mechanism for avoiding sanctions. There is a justifiably pervasive attitude that attorneys should be held to the highest standard of conduct, both in order to safeguard the public and to preserve the reputation of the profession.114 Accordingly, it could be argued that allowing any attorney a “free ride” on a disciplinary matter would encourage irresponsible behavior and serve to further diminish the public’s view of the profession. Finally, the confidentiality and opacity of diversion from the public’s point of view can be seen as significantly undermining the “consumer protective” aspect of attorney discipline.115 While such criticisms appear facially valid, they ignore the strict limitations placed on attorneys participating in diversion programs and long-term analyses that are beginning to emerge from “diversion” states.116
It is indisputable that certain diversion programs do allow an attorney to have a “free ride” for some types of misconduct: diversion is inherently non-disciplinary.117 This criticism, however, is overly simplistic. As a review of the relevant rules shows, diversion is generally only applicable where the infraction is minor, where it is caused by a recognizable impairment, and where there is a significant likelihood for full recovery.118 Furthermore, in many states, participation in diversion programs is admissible as an “aggravating factor” in subsequent disciplinary matters, which, if observed, would mitigate the “free ride” problem.119
In order for diversion programs to be effective, they must be available to a significant number of attorneys and must prevent future harm. After all, one of the reasons for the existence of attorney discipline is the protection of the public.120 While there is a dearth of current data on the types of disciplinary actions brought and the severity of the sanctions, the 2001 Survey of Lawyer Disciplinary Systems (“SOLD”) provides a good starting point.121 This survey, which is compiled from the voluntary responses to questionnaires distributed to fifty-five disciplinary agencies, provides statistics on the types of sanctions imposed.122 In addition, the Maryland Bar Journal has reported statistics from neighboring states over roughly the same period.123 From these two sources, one can infer that a significant number of disciplinary cases may be suitable for diversion.124
One of the problems with states not having diversion programs is that the admonition or “private” sanction may be sending the wrong message to attorneys.125 Where an attorney faces nothing more than admonition or other “private” sanctions, there is little incentive to modify the behavior leading to misconduct. By compelling attorneys to undergo treatment for substance abuse, a mental illness, or other condition, states provide the attorney an opportunity to cure the problem underlying the misconduct.126 This opportunity for rehabilitation not only protects the public by reducing the probability of future similar offenses but also provides a real service to the attorney as a person.
There are enough infractions to warrant diversion programs, there is a good argument for providing them, and there is a strong recommendation to do so. But are diversion programs truly effective in reducing recidivism? According to Ellis’ ten-year study, diversion appears to be working in Arizona.127 In addition to “[sjubjective consensus and anecdotal evidence,”128 Ellis has compiled various statistics on the recidivism rates of Arizona attorneys participating in diversion and those not choosing to participate and has found a “statistically significant difference in the number and severity of subsequent disciplinary charges between lawyers who have completed a … diversion program and those who have not.”129 In light of the emphasis that diversion programs place on rehabilitation, education, and treatment versus punishment, Ellis’ results are not surprising.
Unfortunately, attorney misconduct is a fact of life. While the profession should not condone misconduct, in the limited circumstance of misconduct by mentally impaired attorneys, traditional methods of sanction do not serve the goals of protection of the public and the administration of justice. The growing trend towards the codification of diversion programs suggests a new way of treating this issue, and early statistical analysis of the Arizona program suggests that these programs may be effective. The diversion programs satisfy the aims of disciplinary programs through non-disciplinary actions while allowing attorneys to remain in practice and serve their clients and the public.
Discussions of mental acuity should strike a nerve with most attorneys. The legal profession, after all, is a thinking profession, and an allegation of a cognitive dysfunction, whether protracted or temporary, strikes at the heart of what enables attorneys to function. An admission of such a dysfunction ultimately gives rise to both professional and emotional problems. For these reasons, an ongoing dialogue on the treatment of mentally impaired attorneys is vital, both to ensure the health of the profession and of the person.
KRISTY N. BERNARD* & MATTHEW L. GIBSON**
* J.D., Georgetown University Law Center (expected May 2006). Kristy N. Bernard would like to thank her fiancé Theodore, her sister Kerri, and the rest of her family and friends for their unwavering support and constant inspiration.
** J.D., Georgetown University Law Center (expected May 2006). Matthew L. Gibson would like to thank his wife Christina and his family and friends for all of their encouragement and support.
Copyright Georgetown University Law Center Summer 2004
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