Official Magazine of the Denver Bar Association

Ethics are There to Protect Attorneys, Too: A Look at How Rule 254 Can Help Us All

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We always discuss ethical obligations as a protection to our clients. We owe a duty to our clients to follow the rules, to protect their confidentiality, and to represent them within the standards set by our state judiciary and bar associations. These are the most basic tenets of our practice.

Day-to-day stresses and struggles impinge on our ability to effectively proceed with our obligations. The associate who stays up all night working on a real estate closing may forget an all-important comma that is the difference between his client winning or losing an argument in court years after he drafted the document. Of course it is the attorney’s fault—that is why we carry malpractice insurance. What about those times when our lives are being accosted on different fronts? There are many stresses in our everyday life that can cloud our judgment or reduce our effectiveness. They include:

  • Depression
  • Divorce or Marriage
  • Buying or Selling a Home
  • Caring for Elderly Relatives or Sick Children
  • Personal Health Issues
  • Substance Abuse
  • Declining Mental Capacity
  • Job Dissatisfaction

Stress is increased when dealing with these and other major life events—even the happy ones. The above list may not sound like you today, but sooner or later, one or more of these stresses may affect your daily work life.

Because we face deep responsibilities to our clients and our peers, we are often not the first ones to see or admit to our own diminished capacities.

But we need to reflect and self-analyze. Take this time to consider how deep and persistent is your current stress? Are you taking anti-depressants or anti-anxiety medications to control that stress? Are you considering asking for help? Should you?

Larger law firms may have peer review programs to monitor the emotional well being of both staff and attorneys. Small to mid-sized firms may not. If your firm does not have such a program, it may be time to consider it. Other issues may prevent attorneys from asking for help. They may not feel comfortable reporting the need for help to internal human resources or employee assistance programs. We need to recognize when one of our peers needs help and not turn away in the hope that it will resolve itself.

Any internal program should include:

  • A procedure to confidentially recognize an attorney (or staff member) facing more than normal stress;
  • A standard procedure with the flexibility to include a variety of resources to assist the attorney;
  • Ability to modify the attorney’s work-load as necessary;
  • A report from qualified medical personnel detailing when the attorney is ready to either return to work or manage a full work-load;
  • A file on any disciplinary procedures (which may not even be necessary if a firm identifies stressors early).

Attorneys, and even law students, are not alone if help is needed.(1) In 2011, the Colorado Supreme Court adopted Rule 254 to the Colorado Rules of Civil Procedure. This established a Colorado Lawyer Assistance Program (COLAP), which is supported by annual attorney registration fees.(2) As one of 44 states around the country to institute this type of rule, COLAP’s mission is:

  • (a) To protect the interests of clients, litigants and the general public from harm caused by impaired attorneys or judges;
  • (b) To assist impaired members of the legal profession to begin and continue recovery; and
  • (c) To educate the bench, bar and law schools to the causes of and remedies for impairments affecting members of the legal profession.(3)

If an attorney contacts COLAP for assistance, the attorney can be confident that those communications are held in confidence.(4) COLAP deals with a broad range of issues, including “stress management, addiction, mental health issues, law practice issues, investigating and planning interventions, assistance with entry into treatment facilities, aftercare programs, professional peer support meetings, [and] obtaining sponsors and mentors.”5 In sum, this vital organization deals with both physical and mental health issues that could cause, or are causing, difficulties with an attorney’s, judge’s or law student’s, career.

Barbara Ezyk, the Executive Director of COLAP, graciously spoke with me about the program.

I was surprised to learn that attorneys face depression in rates that are higher than in any other profession.

Rates of depression among attorneys are just under 4% higher than rates of depression among the general public. This should be a concern to us all.

COLAP offers a broad range of confidential assistance to attorneys, judges and law students. Not only will COLAP provide referrals to mental health practitioners, but the program has approximately 125 volunteers throughout Colorado who act as peer advisors and mentors.

We are living one life. While previous incarnations described the ideal work/life balance, Ezyk sagely described that blend as a work/life integration. “To describe work and life as a balance infers that we have to give something up.”(6) In reality, we need to better integrate our work and home lives.

Ezyk is well versed in both clinical and alternative stress-reduction methods. She spoke with me about simple steps attorneys can take to temporarily step away from the stress we have at work. They include:

  • Change position (from sitting to standing)
  • Take a walk—encouraging others to walk with you
  • Learn to meditate
  • When you work, work; when you aren’t working, close the door, physically and mentally, on work
  • Calendar time for yourself
  • It is a fallacy that we are able to multi-task. We can complete one task at a time. Disabuse yourself of your ability to tackle 10 chores at once.
  • If you need help, ask for it.(7)

In addition to these services, attorneys (including judges), paralegals, law students or staff members who work with attorneys, can—and should—communicate concerns about themselves or others in their firm with appropriate supervisors. If your firm does not have a procedure in place to handle these issues, encourage a change.

If we don’t support ourselves and each other, it is our clients and our practices that will suffer.

The American Bar Association (ABA) provides an annual report on Lawyer Assistance Programs (LAP) around the country. Recently, the ABA’s commission on lawyer assistance program conducted a survey of all attorneys. That report should be published by next summer. The ABA’s 2012 report(8), published in 2013, indicates some interesting, and troubling, facts:

  1. The second most common referral source to LAP agencies was from disciplinary committees ;(9)
  2. Substance abuse (with the highest percentages being alcohol and prescription drug abuse) and mental health issues (with the highest percentages being depression and anxiety) made up most of the reasons for contacting LAP agencies.

Ezyk informed me that COLAP receives calls on a variety of mental and physical health conditions, many involving more than one issue, including depression and addiction issues.

If you have concerns about your own stress, health issues or drug or alcohol dependency, please do not ignore it. Talk with someone. Get help. Ask another attorney skilled in your area of practice to assist you in reviewing your work. Don’t wait until you are faced with a malpractice complaint to deal with these issues. Asking for help does not mean you are weak—not asking will ensure that you are.

“Asking for help should be seen as a sign of strength and growth.” (10)

 

JRosenblum pictureBy Judith Rosenblum. who has practiced law in the intellectual property arena for more than 27 years. As Senior Counsel with HolzerIPLaw, P.C., her practice emphasizes the development and protection of each client’s unique intellectual property portfolio. She may be reached at 720-684-5375 or jrosenblum@holzeriplaw.com.

 

1 For a complete list of resources throughout the U.S., see americanbar.org/groups/lawyer_assistance.html.
2 coloradolap.org/index.htm.
3 citing coloradolap.org/Mission.htm.
4 C.R.C.P. 254(6)(a).
5 coloradolaw.org
6 Barbara Ezyk, Executive Director of COLAP, interviewed March 30, 2015.
7 Colorado Lawyers Helping Lawyers, Inc. (CLHL) is a nonprofit, court-approved peer assistance organization. clhl.org.
8 coloradolap.org/index.htm. americanbar.org/content/dam/aba/administrative/delivery_legal_services/ls_del_2012_lap_comprehensivesurvey.authcheckdam.pdf.
9 The first most common resource was self-referrals according to the ABA’s 2012 survey published in 2013. See, americanbar.org/content/dam/aba/administrative/delivery_legal_services/ls_del_2012_lap_comprehensivesurvey.authcheckdam.pdf.
10 Barbara Ezyk, Executive Director of COLAP, interviewed March 30, 2015.

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