Lawyer wellness statistics are depressing. According to the American Bar Association's Task Force on Lawyer Well Being, lawyers rank eighth in a study of suicide by occupation, with a rate 1.33 times the national norm. This is the tip of the iceberg. Compared to other professions, lawyers drink too much and have higher rates of depression, stress, and anxiety.
It is obvious why lawyer wellness has become its own cottage industry. A simple Google search reveals dozens of results ranging from Pillsbury Winthrop Shaw Pittman's landmark Be Well program to private firms engaged in the business of lawyer wellness to articles and resources available from myriad state and local bar associations.
I advocate for any type of personal wellness program. By creating an individual wellness plan, you will be a better lawyer. Lawyers who effectively manage stress and wellness establish systems within the office that improve client service. They improve communication with clients, staff, and other lawyers. They reduce procrastination and the risk of missed deadlines. Time sheets and billing are done more timely.
The disciplinary system's treatment of mental health issues has evolved as lawyer wellness issues have gained more attention. Mental health issues play a significant role in Maryland's current legal ethics framework.
On the front end, the Maryland State Bar Association's Lawyer Assistance Program provides free, confidential assistance to lawyers, judges, and law school students by offering virtual or in-person assessment, referral, short-term counseling, and continued support to ensure long term success. Various local and specialty bar associations have wellness initiatives and offer numerous Continuing Legal Education classes focusing on wellness.
Dealing with problems on the front end is a much better approach than after an ethics issue arises. One important reason to deal with mental health issues pre-emptively is that a lawyer's mental health issue is not a defense to an ethical violation. Mental health issues may not prevent a severe sanction.
The Maryland Rules define several key terms relevant to lawyer wellness cases. Maryland Rule 19-701 defines a "disability" as a mental or physical condition that seriously interferes with the performance of an attorney's duties, and is, or is likely to become, permanent.
Likewise, "impairment" or "impaired" means a mental or physical disability, including an addiction, that seriously interferes with the performance of an attorney's duties but may be remediable and, if remedied, is not likely to become permanent. Finally, "incapacity" means the inability to render adequate legal service by reason of a disability or impairment.
Building upon these definitions, a lawyer who is found to have an incapacity can be placed on disability inactive status, can be placed on permanent retired status or be placed on conditional diversion in accordance with a Conditional Diversion Agreement. Rule 19-706 – Sanctions and Remedies, Md. R. Att'y 19-706.
A Conditional Diversion Agreement, issued per Md. Rule 19-716 is almost always a desirable outcome from a disciplinary charge. In contrast, being placed on inactive status comes with a requirement that the lawyer prove by a preponderance of the evidence that the attorney has regained the ability to render adequate legal services to be reinstated to active practice.
Inevitably, the requirement to establish fitness to practice law again creates significant hurdles for lawyers seeking to return to practice.
I would be remiss not to acknowledge significant improvements in how the ethics system handles mental health issues. For example, 20 years ago, in Attorney Grievance Commission v. Vanderlinde, 364 Md. 376, 773 A.2d 463 (2001), the Court of Appeals announced the bright line test that disbarment is the proper sanction for acts of intentional dishonesty absent compelling circumstances.
Speaking specifically to mental health issues, the court placed a heavy burden of proof on the lawyer, requiring the lawyer to show the mental impairment is "the root cause" of the misconduct to avoid disbarment. Id. The lawyer must not only prove a serious and debilitating mental condition, but must also prove the mental condition, in a sustained fashion prevented the lawyer's ability to engage in the day-to-day activities necessary to practice law.
Since 2001, many respondents have challenged the Vanderlinde standard with some success. Recently, in Attorney Grievance Commission v. Collins, 477 Md. 482, 270 A.3d 917 (2022), the court formally eschewed the bright line Vanderlinde test. This significant shift was because the court recognized there were cases involving dishonesty in which the court neither disbarred the lawyer nor found the existence of compelling extenuating circumstances to be the "root cause" of the misconduct.
While the court's shift away from Vanderlinde did not eliminate the "root cause" test, the cases that led the court to reconsider its application reflect a better understanding of mental health issues. This, combined with the initiatives shown by the legal industry, will hopefully keep moving our profession forward.
Craig Brodsky is a partner with Goodell, DeVries, Leech & Dann LLP in Baltimore. For over 25 years, he has represented attorneys in disciplinary cases and legal malpractice cases, and he has served as ethics counsel to numerous clients. His column in The Daily Record appears on the first Thursday of every month. He can be reached at csb@gdldlaw.com.
This article originally appeared in The Daily Record on November 30, 2022.
Goodell DeVries defends various professionals in Maryland, the District of Columbia, and Virginia, including lawyers and law firms. Many of these cases are ethics matters involving Bar Counsel. If you have questions about the above or are a Maryland lawyer facing discipline, please contact us at EthicsHelp@gdldlaw.com.
