John Barkett, Shook, Hardy & Bacon

Your partner has a heart attack and the first thing you do is inform the attorney discipline committee because you're sure he can't be as strong an advocate with a weakened heart. Absurd. Right?

Then when would it be necessary to turn in a colleague who is depressed? What if she is an alcoholic or a drug abuser and can't be counted on to safeguard client information if she blacked out? What if he is suicidal and you worry that reporting him might prompt him to kill himself?

These were the questions an American Bar Association panel grappled with in a discussion titled “Balancing a Lawyer's Cry for Help from Dependency or Depression with Ethical Obligations of Competence and Reporting.” The panel dealt with the thorny issue of when a lawyer crosses from mental illness to impairment and should withdraw from cases.

Joseph Milowic III, a Quinn Emanuel Urquhart & Sullivan partner who revealed his struggles with depression a year ago, was a member of the panel. He introduced the heart attack analogy to suggest lawyers who are mentally ill should be treated the same as those with physical illnesses.

“I think it's important that we dispel any notion that we have to report any of our colleagues just because he comes to you with a mental health issue,” Milowic said. “That should not be the perception.”

Some of the country's most prominent lawyers at the top of their game struggle with mental illness, said Milowic, founder of the Lawyers Depression Project, a peer-to-peer mental health support group that chats online and by phone twice a week.

From left, moderator Richard Gaal, a partner at McDowell Knight; Diana Uchiyama, executive director, Illinois Lawyers' Assistance Program; John Barkett, a partner at Shook, Hardy & Bacon; LaKeisha Randall, a trial attorney at Bey & Associates; and Joseph Milowic III, a partner at Quinn Emanuel, talk about mental illness at an ABA conference. Photo: David Handschuh

“Lawyers with a well-being impairment may be, under certain circumstances, at greater risk of losing one of these devices or leaving them somewhere where they may not be recovered,” attorney John Barkett said in a report he prepared for the discussion.

Barkett, a Miami partner at Shook, Hardy & Bacon and a member of the ABA standing committee on ethics and professional responsibility, said it's clear a lawyer who commits misconduct has to be reported. What's less clear is when a lawyer's impairment in itself is enough to warrant reporting if the lawyer fails to withdraw from assignments. Barkett said he never faced such a situation in his 45 years of practice.

Richard Gaal, co-chair of the Mental Health and Wellness Task Force for the ABA and a partner at McDowell Knight Roedder & Sledge in Mobile, Alabama, recounted how he realized he was an alcoholic at a lawyers convention in New Orleans.

“As a young lawyer, I very much loved the idea of work hard, play hard,” he said. “And New Orleans was one of my favorite places to play.”

But when he blacked out during the trip, he came to the conclusion he had a problem. He felt he was operating at a “pretty high threshold,” but looking back he realizes he could have been a much better lawyer. Gaal, who moderated the panel Thursday, has been sober since 2010.

Gaal said some of his colleagues didn't even realize he was a problem drinker. Perhaps that's no surprise, considering the prevalence of such behavior in the legal profession. In the 2016 study on lawyer well-being, the Hazelden Betty Ford Foundation and the ABA Commission on Lawyer Assistance found more than 22 percent of the nearly 13,000 working lawyers surveyed had problems with alcohol or drug use.

Gaal didn't do anything in his alcoholic haze that endangered clients. But what would have happened, for instance, if Gaal or any other impaired lawyer lost an electronic device with sensitive client information while blacked out?

 

Diana Uchiyama, executive director of the Illinois Lawyers' Assistance Program in Chicago and a panel member, said she sometimes wonders whether lawyers join the profession with such high rates of mental illness or develop it on the job. Lawyers are often perfectionists and pessimists, two qualities that lead to depression and anxiety, she said.

While she acknowledges everyone makes mistakes, mistakes often are not acceptable in the legal profession.

Barkett described the dilemma this way: “Generally speaking, we're not supposed to be perfect, but we're not supposed to make mistakes.”

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