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Model law firm ‘impairment’ policies withdrawn from ABA annual meeting discussion

August 7, 2018

A resolution that would have updated current guidelines for how the legal community should address lawyer impairment was withdrawn from the American Bar Association House of Delegate’s schedule before it could be discussed at the annual meeting on Monday.

The House of Delegates convened in Chicago to debate and vote on more than 50 proposed resolutions, including the “ABA Model Law Firm Policy on Impairment” submitted by Terry Harrell, director of the Indiana Judges and Lawyers Assistance Program. The model law policy was drafted after ABA Immediate Past President Hilarie Bass sought approval for the creation of the Working Group to Advance Well-Being in the Legal Profession, which is designed to study well-being recommendations issued by the National Task Force on Lawyer Well-Being in 2017.

Harrell, who also chairs the working group, and several law stakeholders met in Washington, D.C., earlier this year to develop the proposed national model in hopes of reinforcing lawyer well-being and to address impairment issues in the law firm setting.

If it had been implemented, the policy would have provided a mechanism within law firms to identify impairment and craft proper intervention for legal personnel struggling with impairments due to substance use or other mental health disorders, including cognitive impairment or dementia.

As defined in the policy, “impairment” is considered a condition that materially and adversely affects a person’s judgment, memory or reactions or otherwise interferes with work performance and the rendering of legal services in a manner consistent with a legal employer’s standards and the Rules of Professional Conduct. The policy would be publicized in the workplace and placed in legal employers’ personnel handbook.

A contact person, such as a managing partner, human resources director or other designated person, would then be responsible for implementing the policy, but would not undertake or oversee counseling or treatment. Instead, the contact person would be tasked with notifying legal professionals of the availability of lawyer assistance programs that can refer impaired persons for assessment, counseling, treatment and other supportive services. However, legal employers who reasonably believe that lawyer or staff member may be impaired would have a duty to report it. 

Efforts to implement the reinforced policies would ultimately be charged by ABA leadership in collaboration with the participating entities that comprise the task force.

“The foundation of this Policy is the recognition that well-being is essential to an attorney’s duty of competence, and that impairment is antithetical to both the competence and quality service expected by the clients of the legal employer,” the policy states. “To support this duty, legal employers need to demonstrate a commitment to the well-being of their personnel, to the prevention of impairments, and to assisting their employees in obtaining treatment when needed.”

The most recent impairment policy update, the Model Law Firm/Legal Department Personnel Impairment Policy and Guidelines, passed the House of Delegates in 1990 and remains active policy.

But Harrell noted in the resolution that those guidelines focus primarily on substance use and dependence and do not incorporate current rates of mental health issues seen in the legal profession. A 2016 study conducted by the Hazelden Betty Ford Foundation and the ABA Commission on Lawyer Assistance Programs found nearly 21 percent of licensed, employed lawyers qualify as problem drinkers, 28 percent struggle with some level of depression and 19 percent demonstrate symptoms of anxiety. 

She added the 1990 language is not reflective of the current resources available to legal professionals in the treatment of problematic substance use and/or mental health disorders.

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