Download Mental Illness in the Legal Profession

 Mental Illness in the Legal Profession (MCLE specialty Credit for Prevention, Detection and Treatment of Substance Abuse/Mental Illness that Impairs Professional Competence in the Workplace)
Friday, May 9, 2014 General Session; 8:45 – 10:15 a.m. Melanie M. Poturica, Liebert Cassidy Whitmore DISCLAIMER: This paper is not offered as or intended to be legal advice. Readers and conference attendees should seek the advice of an attorney when confronted with legal issues. Attorneys should perform an independent evaluation of the issues raised in these materials. Copyright © 2014, League of California Cities®. All rights reserved. This paper, or parts thereof, may not be reproduced in any form without express written permission from the League of California Cities®. For further information, contact the League of California Cities at 1400 K Street, 4th Floor, Sacramento, CA 95814. Telephone: (916) 658‐8200. League of California Cities® 2014 Spring Conference Renaissance Esmeralda, Indian Wells Notes:______________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
League of California Cities®
2014 Spring Conference
Renaissance Esmeralda, Indian Wells
6033 West Century Boulevard,
5th Floor
Los Angeles, California 90045
T: (310) 981-2000
F: (310) 337-0837
153 Townsend Street,
Suite 520
San Francisco, California 94107
T: (415) 512-3000
F: (415) 856-0306
5250 North Palm Avenue
Suite 310
Fresno, California 93704
T: (559) 256-7800
F: (559) 449-4535
550 West "C" Street,
Suite 620
San Diego, California 92101
T: (619) 481-5900
F: (619) 446-0015
League of California Cities
City Attorneys’ Spring Conference
Mental Illness in the Legal
Profession
Friday, May 9, 2014
Prepared by:
Melanie Poturica
Partner, Liebert Cassidy Whitmore
Stephanie Lowe
Associate, Liebert Cassidy Whitmore
Mental Illness in the Legal Profession
One in four American adults suffers from a diagnosable mental disorder. 1 Lawyers are
among these Americans and suffer from mental illness at alarmingly higher rates than the general
population. Despite the commonality and significance of mental illness in the legal profession,
lawyers do not often discuss mental illness and mental well-being. Even with programs like the
California Lawyer Assistance Program (“LAP”), many practicing lawyers remain undiagnosed
and are unwilling to receive help.
Mental illness encompasses a variety of mental impairments that may affect an
individual’s thought, mood, or behavior and his/her ability to function psychologically, socially,
occupationally, or interpersonally. Mental illness ranges from attention deficit hyperactivity
disorder (“ADHD”) to depression to schizophrenia. A lawyer’s role is to advocate for his/her
clients. And lawyers have the duty to act competently, maintain client confidentiality, avoid
clients’ adverse interests, and communicate with clients to keep them reasonably informed,
among other duties. Mental illness can affect a lawyer’s ability to abide by these duties and
provide professional and competent representation. Thus, mental illness can lead to decreased
work performance, questions and interventions by colleagues, burning out, the inability to
maintain ethical responsibilities and in some cases, discipline by the State Bar.
Part I of this paper focuses on mental illness in the legal profession. This section
discusses the prevalence of lawyers with mental health issues, reasons why lawyers suffer from
mental illness, examples of different types of mental illnesses and how they affect an
individual’s ability to practice law, the connection between mental health and drug abuse issues,
and the stigma surrounding mental illness. Part II discusses how supervisors, managers, and
employers should deal with lawyers/employees with mental illnesses. It explains the Americans
with Disabilities Act (“ADA”) and the Fair Employment and Housing Act (“FEHA”),
specifically in the context of mental illness. It also provides examples of reasonable
accommodations and discusses the Lawyer Assistance Program and discipline.
PART I.
A.
MENTAL ILLNESS IN THE LEGAL PROFESSION
The Prevalence of Mental Illness in the Legal Profession
Mental illness in the legal profession is an important and relevant topic that has garnered
an increasing amount of media attention in recent years. A 1990 John Hopkins University study
found that out of over 100 occupations, lawyers lead the nation with the highest incidence of
depression. 2 Lawyers are 3.6 times more likely to suffer from depression than non-lawyers. 3
1
Nat. Inst. of Mental Health, The Numbers Count: Mental Disorders in America (undated),
http://www.nimh.nih.gov/health/publications/the-numbers-count-mental-disorders-inamerica/index.shtml#KesslerPrevalence (last visited Mar. 6, 2014).
2
Eaton, Occupations and the Prevalence of Major Depressive Disorder (1990) 32(11) Journal of Occupation
Medicine 1079-1087.
3
Flores & Arce, Why are lawyers killing themselves? CNN (Jan. 20, 2014),
http://www.cnn.com/2014/01/19/us/lawyer-suicides/index.html.
Error! Unknown document property name.
Lawyers also experience feelings of inadequacy, inferiority, anxiety, and/or social alienation at
higher rates than the public at large. 4
When lawyers suffering from mental illness do not find help to treat their disease, greater
consequences may result. According to the Centers for Disease Control and Prevention, lawyers
ranked fourth in the proportion of suicides in the profession compared to suicides in all other
occupations. 5 The only professions whose members commit suicide at higher rates than lawyers
are dentists, pharmacists, and physicians. In 2004, there was an average of one lawyer suicide
per month in Oklahoma. 6 In South Carolina, six lawyers took their own lives within eighteen
months between 2007 and 2008. Kentucky has reported fifteen known lawyer suicides since
2010. Between December 2008 and May 2009, three lawyers working for three major law firms
reportedly committed suicide after job or trial losses. 7 As recently as March 7, 2014, a
Manhattan lawyer committed suicide by jumping out of his 12th floor office. 8 His neighbors
said he had been depressed over the death of both of his parents and marital troubles with his
wife. Realizing the prevalence of mental illness in the legal profession, seven states, including
California, have added a “mental health” component to their mandatory continuing legal
education.
B.
Reasons for a High Incidence of Mental Illness in the Legal Profession
There are many reasons why individuals in the legal profession may be prone to mental
illness. Being a lawyer is a high stress profession. Lawyers are expected to take on heavy
workloads and be problem solvers. By its nature, the legal profession is full of multiple sources
of conflict and adversity is part of the profession. Lawyers have to deal with conflict and
“uncontrollable uncertainty” from clients, opposing counsel, other lawyers, insurance companies,
judges, and jurors. Lawyers feel stress and the body’s stress response can contribute to the
developmental roots of mental illness. 9 To some, the legal profession gives little in return for the
years of hard labor and stress. 10 Various studies on lawyer job satisfaction have turned out
different results. Some studies find lawyers are among the unhappiest professionals, while
others say they are equally satisfied or dissatisfied as other workers. 11 An ABA study found that
forty percent of lawyers were dissatisfied with their jobs. 12 In 2006, Tom Smith, the director of
the General Social Survey for the National Opinion Research Center at the University of Chicago
4
Mounteer, Depression Among Lawyers (Jan. 2004) 33 The Colorado Lawyer 35, 36.
Flores & Arce, Why are lawyers killing themselves? CNN (Jan. 20, 2014),
http://www.cnn.com/2014/01/19/us/lawyer-suicides/index.html.
6
Id.
7
Weiss, Disappointments Preceded Suicides by Lawyers at Three Major Law Firms, ABA Journal (May, 11, 2009),
http://www.abajournal.com/news/article/disappointments_preceded_suicides_by_lawyers_at_three_major_law_firm
s/.
8
Cusma, Perez, & Velez, Lawyer jumps to his death amid marital woes, New York Post (Mar. 7, 2014),
http://nypost.com/2014/03/07/lawyer-falls-to-death-from-12th-floor-office/.
9
Weir, The beginning s of mental illness (2012) 43(2) American Psychological Assn. 36.
10
Wehrenberg, The Suicide of A Lawyer With Depression: Ken’s Story, Lawyers with Depression (Sep. 3, 2011),
http://www.lawyerswithdepression.com/articles/the-suicide-of-a-lawyer-with-depression-kens-story/.
11
Curtis, Looking for a happier legal career, or something different, CA Bar Journal (Jan. 2010),
http://www.calbarjournal.com/January2010/TopHeadlines/TH1.aspx (last visited Apr. 4, 2014).
12
Carlton, Getting Help When You Need it, California Bar Journal (Aug. 2006), http://www.calbarlap.com/CBJ2006-MCLE-Article-doc.pdf.
5
Error! Unknown document property name.
found that 56 percent of lawyers surveyed were “very satisfied” with their jobs. 13 Individuals
struggle to balance the demands of being a lawyer with the need for downtime, which is essential
to maintaining one’s mental and physical health. A 1990 study by the National Survey found the
most common reasons for lawyers’ negative job experiences were “not much time for self” and
“not much time for family.” 14 Lanny Berman, the executive director of the American
Association of Suicidology, says that personality characteristics often associated with lawyers,
such as perfectionism and competitiveness, when combined with depression may contribute to
higher suicide rates in the legal profession. 15 Suicide risk factors include depression, anxiety,
substance abuse, suicidal ideation, divorce, and stress. According to Berman, lawyers
experience many of these risk factors at higher rates than the general population. 16
C.
Types of Mental Illness
Mental illness encompasses a variety of mental impairments that may affect an
individual’s thought, mood, or behavior. Mental illness can affect an individual’s ability to
function psychologically, socially, occupationally, or interpersonally. Each of type of mental
illness has the ability to affect a lawyer’s work in the legal profession.
1.
Depression
Depression is a common but serious mood disorder characterized by sadness that
interferes with an individual’s daily life. There are several forms of depression. Major
depression includes severe symptoms that interfere with an individual’s ability to work, sleep,
study, eat, and enjoy life. 17 Persistent depressive disorder occurs when a depressed mood lasts
for at least two years. 18 Other types of depression include psychotic depression, postpartum
depression, seasonal affective disorder, and bipolar disorder.
Unless an individual’s symptoms are overtly expressed, depression is inherently difficult
to identify. Many symptoms are kept hidden and are kept so personal that a colleague, friend, or
family member may not immediately recognize the signs of depression. Psychiatrists have
identified nine symptoms of major depression: depressed mood, problems experiencing pleasure,
low energy, disrupted sleep, diminished or increased appetite, mental and physical agitation or
slowing, feelings of worthlessness and guilt, difficulty concentrating, and thoughts of suicide. 19
These symptoms are easily concealed and many lawyers suffering from depression prefer to stay
silent about them.
13
Curtis, Looking for a happier legal career, or something different, CA Bar Journal (Jan. 2010),
http://www.calbarjournal.com/January2010/TopHeadlines/TH1.aspx (last visited Apr. 4, 2014).
14
Griffith, Job Satisfaction in the Legal Industry, LawCrossing, http://www.lawcrossing.com/article/112/JobSatisfaction-in-the-Legal-Industry/# (last visited Apr. 4, 2014).
15
Weiss, Lawyer Personalities May Contribute to Increased Suicide Risk, ABA Journal (April 30, 2009),
http://www.abajournal.com/news/article/lawyer_personalities_may_contribute_to_increased_suicide_risk.
16
Wehrenberg, The Suicide of A Lawyer With Depression: Ken’s Story, Lawyers with Depression (Sep. 3, 2011),
http://www.lawyerswithdepression.com/articles/the-suicide-of-a-lawyer-with-depression-kens-story/.
17
Nat. Inst. of Mental Health, Depression (undated),
http://www.nimh.nih.gov/health/publications/depression/index.shtml (last visited Mar. 7, 2014).
18
Id.
19
Pulliam, Lawyer Depression: Taking A Closer Look at First-Time Ethics Offenders, 32 J. Legal Prof. 289, 299300 (2008).
Error! Unknown document property name.
There are several ways in which depression can affect members of the legal profession.
One of the defining features of depression is that it impairs day-to-day social and professional
functioning. 20 Many people who suffer from depression have a difficult time being productive.
Depressed lawyers may leave assignments incomplete because they cannot concentrate on them
or may procrastinate as it becomes more difficult to be productive. During a depressed period,
paperwork piles up, deadlines pass, and emails go unanswered. 21 When a lawyer feels too
depressed to get out of bed in the morning due to a depressed mood, low energy, or lack of sleep,
the lawyer is unable to communicate with clients, attend meetings, appear in court, and work on
client matters.
2.
Bipolar Disorder
Bipolar disorder is a form of depression. The National Institute of Mental Health defines
bipolar disorder as:
[A] brain disorder that causes unusual shifts in mood, energy, activity levels, and the
ability to carry out day-to-day tasks. Symptoms of bipolar disorder are severe. They are
different from the normal ups and downs that everyone goes through from time to time.
Bipolar disorder symptoms can result in damaged relationships, poor job or school
performance, and even suicide. But bipolar disorder can be treated, and people with this
illness can lead full and productive lives. 22
One of the main issues with bipolar disorder is the lack of stability. Lawyers with bipolar
disorder can be happy and appear to be fine one day and then may not show up for work the next
day because they are feeling depressed. 23 During periods of high energy, they can be full of
enthusiasm and may be able to take on heavy workloads. But during periods of depression,
lawyers suffering from bipolar disorder may be unable to get out of bed. 24
One example of how a lawyer’s bipolar disorder affected him is the following: a trial
lawyer hid his bipolar disorder from his personal injury defense law firm because he believed if
his employers found out, he would be perceived as weak and as a liability. 25 He thought that the
insurance companies that paid the bills for his firm would want him fired if they found out he
20
Honos-Webb, How Lawyers Can Transform Depression From a Break-Down to a Break-Through, Lawyers with
Depression (undated), http://www.lawyerswithdepression.com/articles/how-lawyers-can-transform-depression-froma-break-down-to-a-break-through/ (last visited Mar. 6, 2014).
21
Lukasik, How Lawyers Can Get Things Done When Depressed, Lawyers with Depression (undated),
http://www.lawyerswithdepression.com/articles/how-lawyers-can-get-things-done-when-depressed/ (last visited
Mar. 6, 2014).
22
Nat. Inst. of Mental Health, Bipolar Disorder (2009), http://www.nimh.nih.gov/health/publications/bipolardisorder/nimh-bipolar-adults.pdf .
23
Arkansas Judges & Lawyers Assistance Program, Story 4: A Lawyer with Bipolar Disorder Tells A Success Story
(undated), http://www.arjlap.org/page/story-4-lawyer-bipolar-disorder-tells-success-story (last visited Mar. 6, 2014).
24
NPR, Lawyer Chronicles Struggle with Bipolar Disorder (Feb. 4, 2008),
http://www.npr.org/templates/story/story.php?storyId=18659107.
25
Anonymous, A Trial Attorney’s Dirty Little Secret: Depression, Lawyers with Depression (undated),
http://www.lawyerswithdepression.com/articles/a-trial-attorneys-dirty-little-secret-depression/ (last visited Mar. 6,
2014).
Error! Unknown document property name.
was bipolar. The trial lawyer kept his bipolar disorder a secret as he dealt with the usual strains
of the legal profession. However, after a severe episode of depression that led to a period of
disability, his firm eventually learned of his bipolar disorder. The firm had doubts about whether
he could handle his case load and his boss said he would find a way to modify the trial lawyer’s
work. However, no one at the firm ever made any suggestions and the trial lawyer eventually
stopped receiving work, forcing him to find another job.
One prolific lawyer suffering from bipolar disorder is Terri Cheney. On the outside,
Cheney is a successful entertainment lawyer in Los Angeles. 26 However, on the inside, she
suffers from bipolar disorder, which has caused her both happiness and such severe depression
that she even tried to take her own life. She has experienced periods when she was unable to
move and has stayed in bed for days. When she struggled with her bipolar disorder diagnosis in
1994, she felt that she would lose her prestigious law firm job. She did not want anyone at work
to know that she was in therapy or that she had a mental disease. Cheney says that there is less
of a stigma today regarding bipolar disorder than there was in 1994, but being diagnosed with
bipolar disorder is still “a big deal.”
3.
Obsessive Compulsive Disorder
Obsessive Compulsive Disorder (“OCD”) is a brain and behavior disorder. 27 It involves
both obsessions and compulsions that take time and interfere with a person’s daily activities. An
individual with OCD will frequently have upsetting thoughts called obsessions. 28 To try to
control these thoughts, the individual will feel the need to check things repeatedly or perform
routines and rituals over and over. People with OCD cannot control these obsessions and
compulsions, and often, the rituals end up controlling them. A person with OCD may manifest
excessive hand washing, organizing, repetition, and feelings of guilt from the possibility of
hurting another person. 29
OCD can disrupt an individual’s legal career on many different levels. People with OCD
may have a difficult time sleeping at night. One lawyer with OCD stated that he gets about three
hours of sleep per night if he is lucky because he spends all of his time organizing, counting, and
cleaning. 30 He then works twelve hours a day for a nonprofit organization. People who come
across his OCD manifestations perceive him as rude and unable to filter his comments. Another
lawyer views her OCD as occasionally beneficial. While it can slow down her work, she said
she has often caught mistakes people have made due to her tendency to pay extra attention to
detail due to her OCD. She said that the legal profession requires lawyers to be meticulous and
OCD can align with that characteristic. A lawyer with OCD may double-check legal citations,
over-research a case, over-analyze facts, not be able to view the applicable law correctly, write in
26
NPR, Lawyer Chronicles Struggle with Bipolar Disorder (Feb. 4, 2008),
http://www.npr.org/templates/story/story.php?storyId=18659107.
27
International OCD Foundation, What is OCD, or Obsessive Compulsive Disorder? (undated),
http://www.ocfoundation.org/whatisocd.aspx (last visited Mar. 6, 2014).
28
Nat. Inst. of Mental Health, What is Obsessive-Compulsive Disorder (OCD)? (undated),
http://www.nimh.nih.gov/health/topics/obsessive-compulsive-disorder-ocd/index.shtml (last visited Mar. 6, 2014).
29
Jung & Willingham, Obsessive-Compulsive Disorder amongst Attorneys, Law Crossing (undated)
http://www.lawcrossing.com/article/3506/Attorneys-with-OCD/# (last visited Mar. 6, 2014).
30
Id.
Error! Unknown document property name.
a verbose manner, argue irrelevant legal positions, misread sources, misrepresent facts, and
excessively read unimportant things. A lawyer with OCD may find it difficult to do his/her job
because he/she struggles to make decisions and articulate the reasons for those decisions in a
timely manner.
4.
Attention Deficit Hyperactivity Disorder
Attention deficit hyperactivity disorder (“ADHD”), often called attention deficit disorder
(“ADD”), manifests as a chronic pattern that makes it difficult for an individual to focus and
maintain attention. 31 An individual with ADHD may suffer from chronic disorganization,
impulsivity, difficulty perceiving time, and hyperactivity. ADHD affects functions in the brain
such as prioritizing, planning, executing and completing tasks, and paying attention to details.
People with ADHD are more susceptible to developing substance abuse disorders, anxiety,
depression, bipolar disorder, and other conditions.
In 2006, the American Bar Association estimated that there were 44,000 lawyers in the
United States who may have ADHD. 32 Lawyers with ADHD struggle to stay organized. They
may fall behind on writing reports and be fearful that they have missed an important point. They
have a difficult time staying focused on boring tasks, managing their time, and may lose interest
and the desire to finish an assignment. Lawyers with ADHD may develop reputations for being
chronically late, having messy offices, or performing excellently sometimes and poorly at other
times.
5.
Anxiety Disorder
Anxiety disorder is a disorder characterized by excessive anxiety that can become
difficult to control and negatively affect an individual’s day-to-day living. 33 Approximately 40
million American adults suffer from anxiety disorders, making anxiety disorders, as a group, the
most common mental illnesses in America. 34 Lawyers suffer from generalized anxiety disorder
at rates higher than the general population. 35 There are a wide variety of anxiety disorders
including generalized anxiety disorder, post-traumatic stress disorder, OCD, panic disorder, and
social phobia. Anxiety disorders are treated with medication and psychotherapy.
In general, there are many things about practicing law that can lead to anxiety. Since the
legal profession entails heavy responsibility, billable hours, public speaking, court appearances,
negotiations, difficult cases and clients, tight deadlines, and interactions with opposing counsel,
it can make every lawyer feel some anxiety at one time or another. However, unlike brief
anxiety, anxiety disorders last at least six months and can get worse if not treated. 36 Each type of
31
Phillips, Lawyers with ADHD, GP Solo Magazine (Oct./Nov. 2006),
http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/adhd.html.
32
Id.
33
Nat. Inst. of Mental Health, Anxiety Disorders (undated), http://www.nimh.nih.gov/health/topics/anxietydisorders/index.shtml (last visited Mar. 6, 2014).
34
Id.
35
Daley & McMillan, Is There Life After (and During) Law School? 94 Ill. B.J. 256 (2006).
36
Nat. Inst. of Mental Health, Anxiety Disorders (undated), http://www.nimh.nih.gov/health/topics/anxietydisorders/index.shtml (last visited Mar. 6, 2014).
Error! Unknown document property name.
anxiety disorder has different symptoms, but common symptoms include excessive, irrational
fear and dread. It is common for people with anxiety disorders to also suffer from other mental
and physical illnesses, such as alcohol or substance abuse, which can exacerbate anxiety
symptoms. 37
The State Bar of California provides an anxiety assessment as a free resource on its
website and suggests that a lawyer experiencing any of the following symptoms consult the
Lawyer Assistance Program:
•
•
•
•
•
D.
At least a six-month period experiencing constant, exaggerated, worrisome
thoughts and tension about everyday routine life events and activities;
Being trapped in a distressful and time-consuming pattern of unwanted thoughts
or compulsive behaviors;
Experiencing or witnessing a traumatic event, such as a criminal assault, child
abuse, natural or human-caused disasters; and having persistent nightmares,
flashbacks, and/or feelings or depression or irritability;
Becoming distractible or easily startled; and
Experiencing repeated episodes of intense fear that strike often and without
warning. Physical symptoms can include chest pain, heart palpitations, shortness
of breath, dizziness, or abdominal distress. 38
The Connection Between Mental Illness and Drug and Alcohol Abuse
People who suffer from severe mental illnesses have a higher risk of substance abuse. 39
The National Institute on Drug Abuse reported that people diagnosed with mood or anxiety
disorders are approximately twice as likely as the general population to suffer from substance
abuse. The 2012 National Survey on Drug Use and Health indicated that nearly 8.4 million
American adults have both a mental illness and substance abuse disorders. However, only 7.9
percent of people receive treatment for both conditions. Lawyers experience significant mental
health issues and substance dependence at higher rates than the general population. 40
Substance abuse greatly affects an individual’s professional life. Studies have shown that
substance-abusing employees function at about 67 percent of their capacity. 41 Employees who
use drugs are 2.2 times more likely to request early dismissal or time off, 2.5 times more likely to
have absences of eight days or more, and 3 times more likely to be late for work. Illicit drug
users are more than twice as likely as those who do not use drugs to have changed employers
three or more times in the past year. Employees with substance abuse problems can also create
higher costs for their employers. Employees who use drugs cost their employers twice as much
37
Nat. Inst. of Mental Health, Anxiety Disorders (undated), http://www.nimh.nih.gov/health/topics/anxietydisorders/index.shtml (last visited Mar. 6, 2014).
38
State Bar of Cal., Lawyer Assistance Program, Anxiety Assessment.
39
Nat. Inst. on Drug Abuse, New NIH study shows that certain protective factors do not exist in those with severe
mental illness (Jan. 3, 2014), http://www.drugabuse.gov/news-events/news-releases/2014/01/severe-mental-illnesstied-to-higher-rates-substance-use.
40
Practicing Law is a High Risk Profession, LAP News to Use (Summer 2005).
41
Substance Abuse and Mental Health Serv. Admin., Drugs in the Workplace: What an employer needs to know
(undated), http://www.safeguardcertify.com/pdf/dt/SAMSA_Drugs_workplace508.pdf (last visited Mar. 6, 2014).
Error! Unknown document property name.
in medical claims than employees who do not use drugs. Drug users who are employed are also
3.6 times more likely to be involved in a workplace accident and five times more likely to file a
workers’ compensation claim. American businesses lose about $81 billion in lost productivity
each year due to problems related to alcohol and drug abuse. Additionally, an estimated 500
million workdays are lost annually due to alcoholism.
E.
Stigma
Despite the prevalence of mental illness in society, there remains a stigma attached to
mental illness. To reiterate, the legal profession is high stress and being a lawyer is a demanding
job especially for those lawyers who have mental illnesses. Lawyers may choose not to seek
treatment out of the fear that they may be diagnosed with a mental illness and the fear of what it
could mean to their ability to practice law. Lawyers who reveal their mental illness risk being
viewed as incompetent, disorganized, unreliable, and unstable. Building a negative reputation
because others cannot accept or educate themselves about mental illness is a fear lawyers
suffering from mental illness face.
From the moment a law student applies for his/her bar license, his/her mental health is
scrutinized. Some law students fear reporting their treatment for a mental illness because of the
risk that they might not meet a state’s character and fitness requirements. 42 One of the admission
factors the State Bar of California may consider in evaluating whether an applicant has the good
moral character required for admission to practice law is “evidence of remission for not less than
two years if the specific act of misconduct was attributable in part to a medically recognized
mental disease, disorder or illness.” 43 The American Bar Association’s 2014 Comprehensive
Guide to Bar Admission Requirements states that the revelation or discovery of evidence of
mental or emotional instability “should be treated as cause for further inquiry before the bar
examining authority decides whether the applicant possesses the character and fitness to practice
law.” 44 To some bar applicants, it may seem easier to not seek treatment and remain
undiagnosed so that they do not have to subject themselves to higher levels of scrutiny to obtain
their licenses to practice law.
Some practicing lawyers choose to remain silent about their diagnosed or undiagnosed
mental illnesses at work. One article posted on the American Bar Association’s website advises
lawyers with ADHD to be careful about who they disclose information to and how much
information they disclose since others’ views of ADHD is unpredictable in the professional
world. 45 The article warns lawyers that they do not want to be seen as a “limitation”. Similarly,
lawyers suffering from depression are prone to deny the harsh reality of depression because they
42
Flores & Arce, Why are lawyers killing themselves? CNN (Jan. 20, 2014),
http://www.cnn.com/2014/01/19/us/lawyer-suicides/index.html.
43
The State Bar of California, Factors Regarding Moral Character Determination,
http://admissions.calbar.ca.gov/MoralCharacter/Factors.aspx (last visited Mar. 6, 2014).
44
Nat. Conf. of Bar Examiners and ABA Section of Legal Education and Admissions to the Bar, Comprehensive
Guide to Bar Admission Requirements (2014), https://www.ncbex.org/assets/media_files/CompGuide/CompGuide.pdf.
45
Phillips, Lawyers with ADHD, GP Solo Magazine (Oct./Nov. 2006),
http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/adhd.html.
Error! Unknown document property name.
fear that admitting to suffering from depression and seeking help will have a negative effect on
their careers and ability to earn a living. 46
The stigma surrounding mental illness may also influence lawyers to refrain from taking
their prescribed medications. A lawyer may choose not to take medications because of the
stigma surrounding a disorder and the methods for treating it. For example, a lawyer with OCD
may choose not to take his pills because of the stigma surrounding the usage of medication that
inhibits one’s behavior. 47
PART II.
A.
SUPERVISING LAWYERS WITH MENTAL ILLNESSES
The Americans with Disabilities Act and Mental Illness
The Americans with Disabilities Act (“ADA”) provides protection from disability
discrimination. The ADA makes it unlawful for an employer to discriminate against a qualified
individual with a disability because of that disability. Under the ADA, an individual is
considered to have a “disability” if he/she:
•
•
•
Has a physical or mental impairment which substantially limits one or more of the
person's major life activities, and/or
Has a record of such an impairment, and/or
Is regarded by the covered entity as having an impairment. 48
Significant among the many challenges the ADA presents is how employers can meet
their obligations to the mentally ill. 49 Since 2009, over fourteen percent of ADA claims filed
with the Equal Employment Opportunity Commission (“EEOC”) and reaching a merit resolution
have been for anxiety disorder, depression, or manic depressive disorder. 50 Employers need to
understand how the ADA requires them to treat individuals who have or claim to have mental
illness. Since the ADA went into effect in 1992, 51 the federal courts have issued an increasing
number of decisions explaining employers’ obligations under the ADA to individuals with
mental illness.
1.
Mental Impairments Under the ADA
Under the ADA, only mental conditions that are considered “impairments” qualify for
protection. The ADA regulations state that a mental impairment means, “Any mental or
psychological disorder, such as an intellectual disability (formerly termed “mental retardation”),
46
Hoeflich, Legal Ethics and Depression (2005) 74-SEP J. Kan. B. Assn. 33.
Jung & Willingham, Obsessive-Compulsive Disorder amongst Attorneys, Law Crossing (undated)
http://www.lawcrossing.com/article/3506/Attorneys-with-OCD/# (last visited Mar. 6, 2014).
48
29 C.F.R. § 1630.2 (g).
49
42 U.S.C. § 12101-12117 [amendment signed into law on July 26, 2010, Title I of the ADA prohibits an employer
from discriminating against a qualified individual based on an individual’s mental of physical disability].
50
The U.S. Equal Employment Opportunity Commission, ADA Charge Data by Impairments/Bases – Merit Factor
Resolutions FY 1997 – FY 2013.
51
The ADA went into effect on July 26, 1992 for employers with twenty-five (25) or more employees and on July
26, 1994 for employers with fifteen (15) or more employees.
47
Error! Unknown document property name.
organic brain syndrome, emotional or mental illness, and specific learning disabilities.” 52
Additionally, the EEOC explains that “stress” and “depression” are conditions that may or may
not be considered impairments, depending on whether these conditions result from a documented
physiological or mental disorder. 53 The EEOC Enforcement Guidance does not identify an
exhaustive list of mental impairments covered by the ADA. Instead, it describes the types of
conditions that constitute impairments. The EEOC released guidelines specifically discussing
when a mental impairment substantially limits an individual’s ability to perform the major life
activities of interacting with others, concentrating, sleeping, and caring for oneself.
i.
Interacting with Others 54
According to the EEOC, an impairment substantially limits the major life activity of
interacting with others if, due to the impairment, the individual is significantly restricted in
his/her ability to interact with others as compared to the average person in the general
population. Some unfriendliness with coworkers or a supervisor would not, standing alone, be
sufficient to establish a substantial limitation in interacting with others. An individual would be
substantially limited, however, if his/her relations with others were characterized on a regular
basis by severe problems, for example, consistently high levels of hostility, social withdrawal, or
failure to communicate when necessary.
ii.
Concentrating 55
According to the EEOC, an impairment that substantially limits an individual’s ability to
concentrate would constitute a disability. 56 An impairment would substantially limit an
individual’s ability to concentrate if, due to the impairment, the individual was easily and
frequently distracted, meaning that the individual’s attention was frequently drawn to irrelevant
sights, sounds or intrusive thoughts, or if the individual experienced his/her “mind going blank”
on a frequent basis. 57 Such limitations must be long term or potentially long term, as opposed to
temporary, to justify a finding of ADA disability. 58 The EEOC gives the following examples:
•
An employee who has an anxiety disorder says that his mind wanders frequently
and that he is often distracted by irrelevant thoughts. As a result, he makes
repeated errors at work on detailed or complex tasks, even after being
reprimanded. His doctor says that the errors are caused by his anxiety disorder
and may last indefinitely. This individual has a disability because, as a result of
52
29 C.F.R. § 1630.2 (h).
EEOC Enforcement Guidance: Technical Assistance on Title I of ADA at 2.1(a)(I), 8 FEP Manual (BNA) 405:
6988 (1992).
54
EEOC Enforcement Guidance: The Americans With Disabilities Act and Psychiatric Disabilities at 10 (Mar. 25,
1997).
55
Id.
56
29 C.F.R. § 1630.2 (j)(ii); EEOC Enforcement Guidance: The Americans With Disabilities Act and Psychiatric
Disabilities at 10 (Mar. 25, 1997); EEOC Enforcement Guidance: Definition of the Term “Disability” at 902.3(b), 8
FEP Manual (BNA) 405: 7261 (1995).
57
EEOC Enforcement Guidance: The Americans With Disabilities Act and Psychiatric Disabilities at 10 (Mar. 25,
1997).
58
Id.
53
Error! Unknown document property name.
•
an anxiety disorder, his ability to concentrate is significantly restricted as
compared to the average person in the general population.
An employee states that he has trouble concentrating when he is tired or during
long meetings. He attributes this to his chronic depression. Although his ability
to concentrate may be slightly limited due to depression (a mental impairment), it
is not significantly restricted as compared to the average person in the general
population. Many people in the general population have difficulty concentrating
when they are tired or during long meetings.
iii.
Sleeping 59
According to the EEOC, an impairment substantially limits the major life activity of
sleeping if, due to the impairment, an individual’s sleep is significantly restricted as compared to
the average person in the general population. These limitations must be long-term or potentially
long-term as opposed to temporary to justify a finding of ADA disability. For example, an
individual who sleeps only a negligible amount without medication for many months, due to
post-traumatic stress disorder, would be significantly restricted as compared to the average
person in the general population and therefore would be substantially limited in sleeping.
Similarly, an individual who for several months typically slept about two to three hours per night
due to depression, also would be substantially limited in sleeping. By contrast, an individual
would not be substantially limited in sleeping if the individual had some trouble getting to sleep
or sometimes slept fitfully because of a mental impairment. Although this individual might be
slightly restricted in sleeping, the individual is not significantly restricted as compared to the
average person in the general population. Some psychiatric impairments, e.g., depression, may
result in an individual sleeping too much. In such cases, an individual may be substantially
limited if, as a result of the impairment, he/she sleeps so much that he/she does not effectively
care for him/herself. Alternatively, the individual may be substantially limited in working.
iv.
Caring for Oneself 60
An impairment substantially limits an individual’s ability to care for him/herself if, due to
the impairment, an individual is significantly restricted as compared to the average person in the
general population in performing basic activities such as getting up in the morning, bathing,
dressing, and preparing or obtaining food. These limitations must be long-term or potentially
long-term as opposed to temporary to justify a finding of ADA disability.
B.
Mental Disabilities Covered by FEHA
FEHA prohibits employment discrimination on the basis of physical or mental disability
or medical condition. 61 FEHA provides broader coverage of disabilities than the ADA. 62 The
California legislature determined that the definition of a mental disability requires a “limitation”
59
EEOC Enforcement Guidance: The Americans With Disabilities Act and Psychiatric Disabilities at 10 (Mar. 25,
1997).
60
Id. at 12.
61
Gov. Code, § 12940, subd. (a).
62
Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 257-258.
Error! Unknown document property name.
upon a major life activity, whereas the ADA requires a “substantial limitation.” A mental
disability is defined under the FEHA as:
•
•
•
•
•
C.
Having any mental or psychological disorder or condition, such as mental
retardation, organic brain syndrome, emotional or mental illness, or specific
learning disabilities, that limits a major life activity.
Any other mental or psychological disorder or condition not described above that
requires special education or related services.
Having a record or history of a mental or psychological disorder or condition
described above, which is known to the employer or other covered entity.
Being regarded or treated by the employer as having, or having had, any mental
condition that makes achievement of a major life activity difficult.
Being regarded or treated by the employer as having, or having had, a mental or
psychological disorder or condition that has no present disabling effect, but that
may become a mental disability as described above.
Standards for a Reasonable Accommodation
The ADA, Rehabilitation Act, 63 and FEHA have different reasonable accommodation
standards.
1.
The ADA
Once it is determined that particular functions of the job are essential, it must be
determined whether the employee can perform those essential functions with or without
accommodation. The employee must first show that accommodation is possible. Once it is
determined that the disabled employee or applicant can perform the essential functions of the job
if accommodation is made, the burden is then upon the employer to make a reasonable
accommodation or show that accommodation is unreasonable or would impose a significant risk
of harm to the health and safety of others.
2.
The Rehabilitation Act
Under the Rehabilitation Act, if the individual cannot perform the essential functions of
the job with or without accommodation, the individual is not “otherwise qualified.” Unlike the
ADA, the Rehabilitation Act only applies to federal employers and governmental agencies that
receive federal financial assistance. Compliance with the ADA generally means compliance
with section 504 of the Rehabilitation Act. The Rehabilitation Act is administered by whichever
federal agency provides financial assistance to the employer.
3.
FEHA
Throughout FEHA, the term “reasonable accommodation” is used to indicate different
employer responsibilities. Employers are required to make reasonable accommodations to assist
63
Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq.
Error! Unknown document property name.
individuals with disabilities in performing the essential functions of their jobs. 64 FEHA makes it
an unlawful practice for an employer or other covered entity to fail to make reasonable
accommodation for the known physical or mental disability of an applicant or employee. 65 The
exception to this requirement is if it would create undue hardship for the operation of the
employer’s business. 66
The requirement of reasonable accommodation focuses on whether an employer has
taken a minimum amount of measures to ensure a disabled individual’s ability to perform his/her
job duties. Some California and federal appellate courts have inferred an active and affirmative
duty out of this requirement. More than one court has interpreted FEHA “reasonable
accommodation” to be flexible and to require “not only that employers remove obstacles that are
in the way of the progress of the disabled, but that they actively re-structure their way of doing
business in order to accommodate the needs of their disabled employees.” 67
In summary, FEHA requires employers to make reasonable accommodations for the
known disabilities of applicants and employees to enable them to perform a position’s essential
job functions, unless doing so would be an undue hardship to the employer. 68 The employer is
required to consider the employee’s preference for accommodation, but a reasonable
accommodation must be effective in allowing the employee to perform his/her essential job
functions. 69
4.
Reasonable Accommodation for Individuals with Mental Disabilities
In the mental disability context, one court interpreted the ADA regulations to require the
employer and employee to make reasonable good faith efforts to help each other determine what
specific accommodations are necessary. 70 The same court considered a claim brought by a
secretary suffering from severe depression who alleged that her university employer failed to
provide her with a reasonable accommodation. 71 The court found that the university had
responded in good faith. The university gave her a less stressful position, assigned her to work
with only one supervisor, and reduced her workload to substantially less than other secretaries.
When the secretary complained that her work load was too low, the university found additional
work for her. In contrast, the secretary failed to provide the university with a signed release that
would have permitted it to access her medical information to accommodate her disability. The
court concluded the secretary had the responsibility to provide the university this information.
Since she failed to do so, the court dismissed her claim.
In a subsequent case, the court held that a school district failed to participate in the
interactive process in good faith and the court cautioned employers that their role in the process
64
Brundage v. Hahn (1997) 57 Cal.App.4th 228, 230.
Gov. Code, § 12940, subd. (m).
66
Id.
67
Sargent v. Litton Systems, Inc. (N.D. Cal. 1994) 841 F.Supp. 956, 961.
68
Gov. Code, § 12940, subd. (m).
69
2 C.C.R. § 11069(c)(8).
70
Bultmeyer v. Ft. Wayne Community Schools (7th Cir. 1996) 100 F.3d 1281; Beck v. University of Wisconsin Board
of Regents (7th Cir. 1996) 75 F.3d 1130.
71
Beck v. University of Wisconsin Board of Regents, Id.
65
Error! Unknown document property name.
of finding a reasonable accommodation may be greater when dealing with mentally ill
individuals than individuals with other disabilities. 72 A janitor suffering from anxiety attacks,
bipolar disorder, and paranoid schizophrenia sued a school district that terminated him rather
than transfer him to a school with a less stressful environment. The employee's psychiatrist had
written a letter to the school district stating that it would be in the janitor's best interest to work at
a school less stressful than the high school to which he was assigned. The school district,
however, unilaterally determined that the janitor was wrong in thinking that the position at the
high school was any more stressful than any other position. The court stated that the burden on
an employer to initiate and participate in the interactive process can be greater when mentally ill
individuals request accommodations. The court observed that mentally ill individuals may be
less capable of articulating either the need for an accommodation or what specific
accommodation would be effective. The court noted that an employer may need to help mentally
ill individuals determine what specific accommodations are necessary. 73
In a California Court of Appeal case, a bank employee suffered from posttraumatic stress
disorder after she experienced an attempted bank robbery. 74 She suffered from severe anxiety
and fear when she had to interact with men who reminded her of the robbers. She brought a
claim against the bank alleging violations of FEHA. She requested the bank accommodate her
mental disability and applied for numerous transfers within the company. The bank informed
her that no jobs were available within her work restrictions or qualifications and sought to
establish that it did everything required to reasonably accommodate the employee. In denying
the bank’s motion for summary judgment, the court held that the bank overlooked that a disabled
employee is entitled to preferential consideration to reassignment of vacant positions for existing
employees. Even though the employee kept adding to her list of restrictions, the court did not
agree that the bank met its burden of establishing the absence of a triable issue of material fact
with respect to reasonable accommodation.
The FEHA provisions related to disability discrimination are based on the ADA.
Therefore, California courts often use federal anti-discrimination laws to interpret FEHA. 75 In a
Ninth Circuit Court of Appeals case, a medical transcriptionist with OCD sued her employer for
disability discrimination under the ADA and FEHA. 76 She struggled to arrive to work on time,
or at all, because her OCD caused her to engage in a series of obsessive rituals, such as washing
her hair for an hour. Her employer agreed to allow her to work a flexible start-time schedule
where should could begin work at any time within a 24-hour period. However, when the
accommodation did not work because she continued to miss work, she suggested she work from
home. The employer denied her request in a letter and provided no alternative accommodation.
The employee was absent twice more and the employer terminated her employment. The Ninth
Circuit held that the employer had an affirmative duty under the ADA and FEHA to explore
further methods of accommodation before terminating employment. 77 The flexible start-time
accommodation was ineffective and the employer had a continuing duty to accommodate, which
72
Beck v. University of Wisconsin Board of Regents, Id. But see, Taylor v. Principal Financial Group (5th Cir.
1996) 93 F.3d 155.
73
Bultmeyer v. Ft. Wayne Community Schools, Id.
74
Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245.
75
Humphrey v. Memorial Hospitals Assn. (9th Cir. 2001) 239 F.3d 1128, FN 6.
76
Id at 1128.
77
Id at 1137.
Error! Unknown document property name.
was not exhausted by one effort. 78 By rejecting the employee’s request to work at home and
offering no alternative accommodations, the Court held the employer failed to engage in the
interactive process. 79
There are various ways for employers to accommodate individuals with disabilities. The
EEOC has listed specific accommodation recommendations for attorneys with disabilities, which
include the following:
•
•
•
•
•
•
•
D.
Job restructuring;
Establishing part-time or modified work schedules;
Permitting the use of accrued paid leave or providing additional unpaid leave for
necessary treatment;
Allowing telecommuting and/or working from home;
Changing methods of supervision;
Reassignment to a vacant position;
Appropriate adjustment or modification of policies, examinations, and/or training
materials. 80
The Supervisor’s Role
City attorney offices and law firms have obligations to take steps to protect the interests
of their clients. Under the Model Rules, lawyers with direct supervisory authority are
responsible for the impaired lawyer’s violation of the rules if they knew of the conduct at a time
when its consequences could have been avoided or mitigated, but failed to take reasonable
remedial action. 81 While the California Rules of Professional Conduct do not have an identical
rule, Rule 3-110 provides that a member shall not intentionally, recklessly, or repeatedly fail to
perform legal services with competence. 82 The discussion section of Rule 3-110 provides that
the duty of competence includes the duty to supervise the work of subordinate attorneys and nonattorney employees or agents. When a supervising attorney knows or has reason to suspect that a
lawyer is impaired, the supervising attorney should observe the lawyer with close scrutiny
because of the risk that the impairment will result in violations of ethical rules. 83 In a formal
opinion about mentally impaired lawyers, the ABA suggested that “the first step may be to
confront the impaired lawyer with the facts of his impairment and insist upon steps to assure that
clients are represented appropriately notwithstanding the lawyer’s impairment.” 84 Other steps a
supervising attorney can take include forcefully urging the impaired attorney to accept assistance
or limiting the impaired attorney’s ability to handle legal matters and work with clients.
78
Humphrey v. Memorial Hospitals Assn. (9th Cir. 2001) 239 F.3d 1128, 1138.
Id at 1139.
80
EEOC, Reasonable Accommodations for Attorneys with Disabilities (Feb. 2, 2011),
http://www.eeoc.gov/facts/accommodations-attorneys.html.
81
Model Rule 5.1(c); ABA, Obligations with Respect to Mentally Impaired Lawyer in the Firm (Jun. 11, 2003),
Formal Opinion 03-429.
82
Rules Prof. Conduct, rule 3-110.
83
ABA, Obligations with Respect to Mentally Impaired Lawyer in the Firm (Jun. 11, 2003), Formal Opinion 03429.
84
Id.
79
Error! Unknown document property name.
Management and supervision can be modified to meet the needs of lawyers with mental
disabilities. The ABA suggests supervisors implement the following methods to accommodate
lawyers with mental disabilities:
•
•
•
•
•
Create an unpressured work environment free of strict deadlines or other pressure;
Assign the type of work the lawyer can accomplish despite his/her mental
disability;
Provide more supervision for the attorney depending on the nature, severity, and
likelihood of periodic recurrence of the impairment;
Prevent the attorney from rendering legal services to clients directly;
Create internal procedures to ensure compliance with the California Rules of
Professional Responsibility. 85
The Department of Labor suggests the following accommodations for supervisors with
employees with mental disabilities:
•
•
•
Implementation of flexible and supportive supervision style; positive
reinforcement and feedback; adjustment in level of supervision or structure; and
open communication with supervisors regarding performance and work
expectations;
Additional forms of communication and/or written and visual tools; creation and
implementation of daily to-do lists, step-by-step checklists, and written and verbal
instructions;
Regularly scheduled meetings with employees to discuss workplace issues and
productivity;
Development of strategies to deal with problems before they arise;
Written work agreements that include any agreed upon accommodations, longterm and short-term goals, expectations of responsibilities and consequences of
not meeting performance standards;
Education to all employees about their right to accommodations;
Relevant training for all employees. 86
E.
Lawyer Assistance Program (LAP)
•
•
•
•
Established in 2011 by the California Legislature, the Lawyer Assistance Program
(“LAP”) helps attorneys struggling with mental health concerns, stress, burnout, substance
abuse, and other issues impacting their productivity. 87 The purpose of the LAP is “to support
recovering attorneys in their rehabilitation and competent practice of the law, enhance public
85
ABA, Obligations with Respect to Mentally Impaired Lawyer in the Firm (Jun. 11, 2003), Formal Opinion 03429.
86
Dept. of Labor, Office of Disability Employment Policy, Maximizing Productivity: Accommodations for
Employees with Psychiatric Disabilities (undated), http://www.dol.gov/odep/pubs/fact/psychiatric.htm (last visited
Mar. 6, 2014).
87
Bus. & Prof. Code, §§ 6140.9, 6230-6238).
Error! Unknown document property name.
protection, and maintain the integrity of the legal profession.” 88 Thirty-eight percent of the new
LAP participants in 2012 were diagnosed with mental health issues, while twenty-seven percent
were diagnosed with dual diagnoses of mental health and substance abuse issues. 89 Attorneys
may voluntarily enter this program or may be referred as a result of an investigation or
disciplinary proceeding. 90 LAP provides recovery services, requires accountability, promises
confidentiality as mandated by Business and Professions Code section 6234, and is a less
expensive alternative to help attorneys recover than discipline. Attorneys and family members
can contact LAP toll-free at 877-LAP 4 HELP (877-527-4435).
F.
Discipline and Mental Illness
1.
Internal Discipline
When a supervisor or manager determines that a lawyer has not satisfactorily performed
his/her job, has violated a rule or policy, or has engaged in other misconduct, the supervisor or
manager may initiate disciplinary proceedings against the employee. If the attorney is not at-will
and has a property interest (i.e. a vested right to continued employment), the supervisor or
manager may initiate a Skelly notice if applicable. Typically, most attorneys who work in-house
for the City Attorney’s Office have property interests in their employment, but the City Attorney
him/herself does not. Skelly v. State Personnel Board provides that a permanent public
employee’s property rights cannot be taken away by his/her employer without first being
afforded certain procedural safeguards. 91 The minimum “due process” protections that the
employer must provide to the employee are: (1) notice of the proposed disciplinary action; (2) a
statement of the reasons for the proposed disciplinary action; (3) a copy of the charges and
materials on which the proposed discipline is based; and (4) the right to respond, either orally or
in writing, to the authority initially proposing discipline. These safeguards are referred to as
“Skelly rights.”
As discussed above, federal and state laws prohibit discrimination against an employee
based on a known or perceived physical or mental disability. Accordingly, if a supervisor or
manager is considering whether disciplinary action may be appropriate based on an employee’s
inability to perform job duties due to a mental disability, the supervisor or manager must be
certain to comply with federal and state disability laws. If an employer holds a Skelly hearing to
initiate an employee’s discipline and the employee writes a response or orally states that his/her
conduct was due to his or her mental illness or disability, the employer must handle the proposed
discipline delicately to avoid discriminating against the employee. Employers must be careful to
differentiate between conduct resulting from a disability and conduct unrelated to a disability.
To determine whether the conduct was related to a mental disability, the employer must
investigate the incident or conduct and may need to initiate the interactive process for the
employee.
88
State Bar of Cal., Lawyer Assistance Program (LAP),
http://www.calbar.ca.gov/Attorneys/MemberServices/LawyerAssistanceProgram.aspx.
89
2012 Annual Report of the Lawyer Assistance Program of the State Bar of California (Mar. 1, 2013).
90
Carlton, Getting Help When You Need it, California Bar J. (Aug. 2006), http://www.calbarlap.com/CBJ-2006MCLE-Article-doc.pdf.
91
Skelly v. State Personnel Board (1975) 15 Cal.3d 194.
Error! Unknown document property name.
In Gambini v. Total Renal Care, Inc., contracts clerk Stephanie Gambini worked for
Davita, Inc., a private employer. She began to experience depression and anxiety and was
diagnosed with bipolar disorder. 92 She told her coworkers that she was experiencing mood
swings and explained that she was taking medication. Nevertheless, she was increasingly
irritable, easily distracted, and her job performance deteriorated. Gambini's supervisors had a
meeting with her to discuss her performance, during which they gave her a written performance
improvement plan. Gambini began to cry, threw the performance plan across the desk, and used
several profanities.
The next day, Gambini took Family Medical Leave Act (“FMLA”) leave because her
bipolar condition was worsening. During Gambini's absence, her coworkers expressed concerns
about Gambini's outburst. DaVita called Gambini and told her that her employment was being
terminated. Three days later, Gambini sent DaVita a letter stating that her behavior during the
meeting was a consequence of her bipolar disorder and asked DaVita to reconsider its decision to
terminate her. DaVita refused. Subsequently, Gambini sued DaVita under Washington's antidiscrimination state law and the FMLA. The jury returned a verdict in favor of DaVita on all
claims. Gambini appealed, challenging several of the trial judge's instructions to the jury. The
Ninth Circuit Court of Appeals held that the jury instructions regarding the state discrimination
claim were wrong. Following ADA precedent, the Ninth Circuit stated that under Washington
state law, conduct resulting from a disability is considered part of the disability, rather than a
separate basis for termination. Consequently, where an employee demonstrates a causal link
between the disability-produced conduct and the termination, a jury must be instructed that it
may find that the employee was terminated on the impermissible basis of her disability.
However, in contrast to Gambini, the California Court of Appeal for the Third District
found that conduct stemming from a disability could be considered separate from the disability.
In Gonzalez v. State Personnel Board, an employee for the Department of Education had his
license suspended after an alcohol-induced lapse of consciousness. 93 Nevertheless, the employee
obtained a state vehicle to drive to a meeting. He suffered an “alcoholic hallucinosis episode”
and abandoned the vehicle on the highway. He was placed on administrative leave and then
terminated. Alcoholism is a disability under California law. The Court found that without
considering the employee’s alcoholism, his misconduct warranted termination. The
Rehabilitation Act puts individuals on equal footing with non-disabled people in hiring,
promotion, and discharge decisions, but it does not provide protection to an employee discharged
for misconduct regardless of his status. It did not matter that the employee’s misconduct
stemmed from his alcoholism. The employer must be allowed to terminate an employee for
egregious misconduct, irrespective of whether the employee is handicapped.
The case of Wills v. Superior Court set forth a different standard than Gambini with
respect to misconduct involving threats or violence against coworkers. Linda Wills worked as a
court clerk for the Superior Court, County of Orange (“OC Court”) and suffered from bipolar
disorder. 94 The OC Court terminated her after she angrily swore and yelled at police department
92
Gambini v. Total Renal Care, Inc. d/b/a DaVita Inc. (9th Cir. 2007) 486 F.3d 1087.
Gonzalez v. State Personnel Board (1995) 33 Cal.App.4th 422.
94
Wills v. Superior Court (2011) 195 Cal.App.4th 143.
93
Error! Unknown document property name.
employees for making her wait to enter the secured facility where she worked. She told two
employees that she was adding them to her “Kill Bill” list. The OC Court determined she
violated its written policy against verbal threats, threatening conduct, and violence in the
workplace. Wills sued the OC Court for disability discrimination in violation of FEHA and
argued that all conduct resulting from a disability is considered part of the disability, rather than
a separate basis for termination. The Fourth District Court of Appeal held that Wills’s disability
discrimination claim failed because an employer may reasonably distinguish between
misconduct caused by misconduct and caused by the disability itself when there are threats or
violence against coworkers. 95 The Court found that the OC Court did not terminate Wills for her
inability to perform her job because of her disability but terminated her for her misconduct. This
was a legitimate nondiscriminatory reason to terminate her. 96
2.
State Bar Discipline
All lawyers are subject to discipline when they violate or attempt to violate their state’s
rules for professional conduct. 97 The American Bar Association Committee on Ethics and
Professional Responsibility asserts that “[i]mpaired lawyers have the same obligations under the
Model Rules as other lawyers. Thus, mental impairment does not lessen a lawyer’s obligation to
provide clients with competent representation.” 98
The four Model Rules usually violated by a mentally impaired lawyer83 are rules related
to competence (Rule 1.1); diligence (Rule 1.3); duty to keep client reasonably informed (Rule
1.4); and duty to decline representation (Rule 1.16(a)). 99 There is a high burden of proof that
lawyers must meet to persuade disciplinary committees that their mental impairment qualifies as
a mitigating factor to their conduct. A lawyer must prove a causal nexus under a “but for” test or
a threshold of clear and convincing evidence. The ABA Standards for Imposing Lawyer
Sanctions holds that the requisite intent for wrongful actions is assumed. For the lawyers who
avoid seeking treatment for mental illness prior to being disciplined by a state bar, proving a
causal nexus between a mental illness and misconduct by clear and convincing evidence is
difficult.
California has an Alternative Discipline Program (“ADP”) to address mental health
problems of lawyers against whom formal disciplinary proceedings have been initiated in the
State Bar Court. 100 Enacted by Business and Professions Code section 6230, et seq. with the
Lawyers Assistance Program, ADP addresses the identification, assessment, and treatment of
substance abuse and mental health problems of lawyers. ADP has a close and mutually
95
Wills v. Superior Court (2011) 195 Cal.App.4th 143, 167.
Id at 168.
97
Model Rules of Professional Conduct, Rule 8.4.
98
ABA Comm. on Ethics and Professional Responsibility, Formal Op. 03-429; Bernard & Gibson, Professional
Misconduct by Mentally Impaired Attorneys: Is There A Better Way to Treat an Old Problem? (2004) 17 Geo. J.
Legal Ethics 619, 636.
99
Pulliam, Lawyer Depression: Taking A Closer Look at First-Time Ethics Offenders (2008) 32 J. Legal Prof. 289,
300-301.
100
The State Bar Court, Alternative Discipline Program (undated),
http://www.statebarcourt.ca.gov/ProceduresProgramsandRules/AlternativeDisciplineProgram.aspx (last visited Mar.
6, 2014).
96
Error! Unknown document property name.
beneficial relationship with LAP. ADP identifies and refers lawyers with mental health
problems to LAP, while only lawyers who are eligible for LAP are eligible for ADP.
G.
Conclusion
Lawyers suffer from mental illnesses at higher rates than the general public due to a
combination of factors including the high stress of the profession and the fact that lawyers
experience feelings of inadequacy, inferiority, anxiety, and/or social alienation at higher rates
than the public at large. There are many different types of mental illnesses and each type can
affect a lawyer’s ability to practice law. Lawyers with mental disabilities also have a higher risk
of substance abuse and face stigma in the workplace surrounding any mental illness.
Lawyers who supervise lawyers with mental illnesses need to be aware of how mental
illness affects lawyers and need to be knowledgeable of the ADA, Rehabilitation Act, and FEHA
to prevent discrimination. Supervisors also need to understand how to provide reasonable
accommodations specifically for lawyers with mental illnesses as well as their professional and
ethical duties under the Rules of Professional Responsibility. The State Bar of California has
established LAP and ADP to help treat and support lawyers suffering from mental illnesses and
substance abuse. As the legal profession continues to grow, supervisors play an important role in
educating lawyers about mental illness and supporting those with mental illness by finding ways
to continue their success at work while abiding by ethical and legal responsibilities.
Error! Unknown document property name.
This page left intentionally blank.
League of California Cities®
2014 Spring Conference
Renaissance Esmeralda, Indian Wells