Attorney impairment and ethical practice


by Thomas Grden   |   Michigan Bar Journal

Practicing Wellness - Attorney impairment and ethical practice

Before beginning my career as a therapist, I dealt cards in a local charity poker room to poker and blackjack players, often until 2 a.m. The learning curve was shallow, but the work demanded constant focus. Tempers flared when hundreds of dollars were at stake, and I know this because I had my fair share of lapses in attention. Yet no matter how high the stakes felt to me at the time, they were essentially penny slots compared to the pressure of providing therapy. I no longer have the luxury of lapses in focus, periods of inattention, or careless mistakes — the stakes have been raised from dividends to depression. Therapists are certainly not alone as a profession with no margin for error. Police officers and firefighters immediately come to mind as occupations that can’t have an off day. Professions in which individual performance impacts the safety of others are known as safety sensitive,1 and it shouldn’t surprise you that attorneys also fall into this category.

As a self-regulating profession, it’s imperative that attorneys have a low threshold for unethical behavior and practice hypersensitivity concerning their own potential impairment, a word that often conjures up images of practicing under the influence of drugs or alcohol. In reality, the most common source of impairment is also the most insidious: imperceptible deterioration of mental health. Unfortunately, the legal profession in the United States boasts some of the highest rates of depression, anxiety, and substance abuse when compared to other occupations that require a post-graduate education. A 2016 study found that levels of depression, anxiety, and stress among attorneys are significantly elevated. Research indicated that 28% reported experiencing mild or higher levels of depression, 19% reported experiencing mild or higher levels of anxiety, and 23% reported experiencing mild or higher levels of stress.2 In terms of career prevalence, 61% reported concerns with anxiety at some point in their career and 46% reported concerns with depression. Approximately 1 in 5 reported problematic alcohol use.3 A separate study found that, when controlling for profession, attorneys have the fifth-highest rate of suicide.4 Research has also established a relationship between substance abuse, mental health, and attorney grievances. A conservative estimate of disciplinary cases related to substance abuse is about 27%,5 though this number may be higher as not all state and county bar associations report on disciplinary cases. A 1992 study of California and New York discipline records found that 50% to 70% of disciplinary cases were connected to substance abuse.6

While no specific research exists regarding the effects of the COVID-19 pandemic on the legal profession, it has exacerbated the rates of substance abuse and mental health problems among the general population,7 and it’s likely that the legal profession is not immune. As the pandemic begins to slowly subside, many lawyers face a decision on whether to return to the office and risk illness or work from home, where there are no boundaries between work and home life. Isolation and loneliness (common side effects of working from home) are both risk factors for mental health and substance abuse problems. While many attorneys blurred the line between work and home life before the pandemic, the complete erasure of this line does lead to decreased resilience over time. This, in turn, can lead an individual toward unhealthy coping skills or an acute mental illness that impacts their ability to function. Adding to the aforementioned stressors is the obligation to report their peers, foisted upon their shoulders by MRPC 8.3. The pressure to evaluate whether the decaying quality of work of a trusted colleague rises to the level of a grievable offense can be immense.

These stressors may manifest themselves visibly in a variety of ways, some of the most common being:

  • Failing to meet deadlines, resulting in lost claims;
  • Failing to adequately communicate with clients;
  • Outbursts of temper in the courtroom;
  • Unprofessional communication with opposing counsel; and
  • Any behavior outside of normal duties that brings obloquy to the profession.8

There are preventative steps that can be taken to avoid serious impairment. The American Bar Association’s Well-Being Pledge Campaign, which began in 2018, contains a seven-point framework to help guide firms and bar associations in their efforts to improve attorney wellness.9 While the 204 signatories the ABA boasts are encouraging, the profession must guard against legal stakeholders who acknowledge the need for wellness while only paying lip service to the idea. Luckily, most that stand upon their soap boxes to preach the gospel of self-care do so out of an abundance of altruism and concern for the profession. However, if legal stakeholders cannot be convinced to embrace a culture of wellness out of concern for the profession, then perhaps an appeal to self-preservation is necessary. MRPC 5.1(a) – (c) outline the responsibilities of firm stakeholders, partners, or legal supervisors in response to lawyer impairment.

In addition to disciplinary consequences, ignoring lawyer well-being has the potential for financial consequences. Sick, stressed, overworked, or otherwise impaired attorneys are less efficient. They may experience lack of focus — a common symptom of depression, anxiety, and ADHD — or lack of motivation. An outward lack of motivation is a common symptom of depression but also may indicate severe anxiety; when an individual is too overwhelmed to act, it is sometimes referred to as having “analysis paralysis.” Lack of wellness also impacts employee turnover, and firms would do well to consider the financial investments of incorporating a new hire into the firm.

Often ignored is the human capital cost in temporarily distributing a departed attorney’s caseload among the remaining firm members. Poor conduct also carries a potential financial burden in increased malpractice insurance costs.10 MCR 9.121(B) – (D) outline disciplinary reactions to lawyer impairment. Legal stakeholders must be willing to engage their subordinates in difficult conversations for the sake of their practices and the profession as a whole.

Most discussions surrounding attorney wellness and impairment are in the context of a systemic problem. The way the profession at large addresses mental health is a macrocosm of the pressures lawyers face individually. There is pressure to never show vulnerability. Ultimately, any impairment that affects an attorney’s ability to contribute fully to the welfare of their client begins to encroach upon ethical behavior. If you recognize yourself or one of your colleagues beginning to show signs of impairment, reach out to the Lawyers and Judges Assistance Program to find out which resources are available to you.

“Practicing Wellness” is a regular column of the Michigan Bar Journal presented by the State Bar of Michigan Lawyers and Judges Assistance Program. If you’d like to contribute a guest column, please email



1. Safety-Sensitive Position, Safeopedia (February 3, 2019) <> []. All websites cited in this article were accessed January 11, 2022.

2. Krill, Johnson & Albert, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 J Addict Med 46, 46 (2016), available at <> [].

3. Id.

4. Lawyers & Depression, Dave Nee Foundation <> [] and Peterson et al, Suicide Rates by Industry and Occupation — National Violent Death Reporting System, 32 States, 2016, 69 MMWR 57 (2020), available at <> [https://perma. Cc/2QTA-X3JY].

5. Benjamin, Darling & Sales, The Prevalence of Depression, Alcohol Abuse, and Cocaine Abuse Among United States Lawyers, 13 Int J L and Psychiatry 233, 243 (1990).

6. Benjamin, Darling & Sales, Comprehensive Lawyer Assistance Programs: Justification and Model, 16 L & Psychology Rev 113, 118 (1992).

7. Kearney, Hamel & Brodie, Mental Health Impact of the COVID-19 Pandemic: An Update, KFF (April 14, 2021) <> [ C46H-RX7T] and Barbosa, Cowell & Dowd, Alcohol Consumption in Response to the COVID-19 Pandemic in the United States, 15 J of Addiction Med 341 (2021).

8. Badgerow, Apocalypse at Law: The Four Horsemen of the Modern Bar — Drugs, Alcohol, Gambling and Depression, 77 J Kan Bar Ass’n 19, 19 (2008), available at <> [].

9. Available at <> [].

10. Reich, Capitalizing on Healthy Lawyers: The Business Case for Law Firms to Promote and Prioritize Lawyer Well-Being, 65 Vill L Rev 361, 364 (2020), available at <> [].