Jack Delay has practiced law for 15 years in central Ohio. He spent his first 14 years at a large firm in the real estate department. Recently, he has decided to go out on his own as a solo practitioner. To get his practice to grow, he holds himself out as a "general practitioner." He is bright, has developed a solid reputation and has great legal research skills. He believes he can pull off being a generalist.
Delay's marketing plan works but he grossly underestimates what it takes to run a practice on his own. Within months, he receives a large influx of new business ranging from transactions for small business clients to litigation matters for domestic, criminal and personal injury clients. Delay is working 14-hour days. His desk is stacked high with files. He gets so busy that he really needs to hire help, but he decides to put off hiring an associate attorney because he wants to keep more money for himself to support his growing family.
At the worst possible time, Delay's legal assistant takes off and leaves town for several months to take care of her ailing mother. His office becomes an administrative nightmare, as conflicts of interest are not monitored, engagement letters are not completed, deadlines are not calendared, and the malpractice insurance policy is allowed to lapse.
Delay continues to open new matters and receive fees; yet he is not able to complete the work. He does not inform new clients or existing clients that his malpractice insurance has lapsed. Delay spends client retainer fees on office expenses, and to pay the lease on his luxury vehicle, instead of depositing them in the client trust account, as promised. His unanswered voicemail messages are so numerous that frustrated clients receive the recording "mailbox full."
Clients have no way to immediately reach him. Delay misses deadlines, appointments and court hearings on seven client matters, resulting in the filing of bar complaints by the aggrieved clients. Delay ignores the seven bar complaints and does not answer them, thinking the problems will somehow go away.
For months, Delay has not been feeling himself. He cannot focus and get the work done. Suddenly, he cannot make himself go into the office for days at a time. He thinks he has "the blues," as his father died two years ago. Delay's wife convinces him to go to the doctor and he is diagnosed with major depression. Yet, he is too proud to take the prescribed anti-depressant and attend psychotherapy. He also stubbornly decides not to sign a contract with the Lawyers Assistance Program, as suggested by the grievance committee chairperson.
Untreated Impaired Lawyers Often Encounter Discipline Problems
The local bar association files a formal complaint against Delay with the Supreme Court's Disciplinary Board, alleging that Delay received fees, but failed to perform work on the seven matters. He owes over $30,000 in restitution on the seven matters for misusing the retainers. He is also charged with failing to notify clients that his insurance lapsed, lying to clients about the status of their matters, and failing to cooperate with the grievance committee's investigation. After he receives the complaint, Delay feels like he has hit rock bottom. Delay finally relents and hires a lawyer to help him with his problems. He also decides to seek the help of the Lawyers Assistance Program.
Fortunately, for Delay, disciplinary authorities and courts have been somewhat more understanding and flexible when addressing lawyer conduct involving depression or other mental conditions. While misuse of client funds and lying to clients are two of the more serious ethical violations committed by lawyers, against the backdrop of depression such conduct can often be viewed differently. A diagnosis of depression complicates the analysis of what disciplinary sanction to impose and requires disciplinary authorities and courts to fully examine the impact of the depression. Disciplinary authorities and courts must determine whether the depression serves to mitigate the misconduct.
The consideration given to depression by disciplinary authorities and courts as a mitigating factor in attorney discipline cases is not automatic1. In order for an emotional or psychological condition to serve to change manner in which the actor's ethical culpability is viewed, there must be a diagnosis of a mental condition by a qualified mental health professional, a determination that the mental condition contributed to cause the misconduct, a period of sustained and successful treatment, and a prognosis from a qualified mental health professional that under specified conditions, the lawyer can return to the competent, ethical professional practice of law2.
A mentally impaired lawyer must seek professional help immediately upon noticing that a period of sustained treatment, his or her mood and behavior prevents the lawyer from serving their clients. If the clinically depressed lawyer does not act soon enough to prevent damage to clients, the lawyer must, nonetheless, face the problem and undergo treatment3. The manner in which disciplinary authorities and courts handle and decide discipline cases involving clinically depressed lawyers is a reminder that the system's purpose is not to punish, but to inquire into a lawyer's continued fitness to practice law, with a view toward protecting the public, and safeguarding the courts and the interests of the profession4.