The Ethics of Working with an Attorney with Health Challenges Affecting the Job

Ellen Lockwood, ACP, RP

Ellen Lockwood, ACP, RP

Each of us wants to believe we always do a good job. Certainly, everyone has bad days, but we tend to chalk those up to not getting enough sleep, being too busy, being distracted by something else in our lives, stress, or similar reasons. We view the occasional bad day as something everyone has now and then, and assume we will soon be back to our usual level of performance.

But what if the person affected is an attorney? And what is a paralegal’s responsibility if an attorney is not doing her job at the usual level because of a health issue?

Health issues which may affect job performance include undiagnosed or improperly managed conditions such as diabetes and high blood pressure, medications for various illnesses that may have side effects such as dizziness, nausea, and sleepiness, and uncontrolled pain. Attorneys are as likely as anyone to put off going to the doctor for a diagnosis, or an adjustment to medication.

Other health issues that may affect job performance may be related to mental health such as ongoing high levels of stress, depression, and bipolar disorder. Most people do not want to admit to themselves, much less others, that their mental health is an issue. Unfortunately, our society still stigmatizes mental health making it difficult to broach the subject with someone, and to seek the help that is needed. Our society tends to view mental health issues as either a character flaw, something that an individual just needs to “get over,” or that the person should just decide to be happy instead of sad.

Substance abuse and addiction are now understood as an illness, not a lack of will- power or a personality deficiency. Whether the substance is abused is alcohol, prescription medications, or illicit drugs, job performance will be affected. The vast majority of people will need professional assistance to work to overcome substance abuse and addiction.

As we age, another condition that can affect job performance is cognitive decline. While the affected person, and those closest to them, may try to justify or explain away evidence of mental deterioration, it is a common problem, and will definitely affect job performance.

Although it may be difficult, and it may not be clear exactly what health issue is causing the problem, it is imperative the paralegal act. If the paralegal thinks the attorney would be receptive, it may be appropriate to discuss the issue with the attorney directly. Another option is to have another attorney, either within the office or a close friend of the attorney, discuss the matter with the affected attorney.

In many situations, the best course of action may be to contact the Texas Lawyers’ Assistance Program (tlaphelps.org). TLAP is completely confidential and is staffed with Texas attorneys, most of whom have been helped by the program. These attorneys will approach the attorney directly and work with the attorney to hopefully get the necessary help and treatment. The attorneys who work with TLAP will also be able to determine if an attorney needs to step away from the practice of law in order to focus on themselves and to protect the attorney’s clients.

People often do not want to get involved in a coworker’s personal life, especially something as personal as whatever is affecting an attorney’s job performance. However, Canon 10 of the Paralegal Division Code of Ethics and Professional Responsibility states as follows:

A paralegal shall do all other things incidental, necessary, or expedient to enhance professional responsibility and the participation of paralegals in the administration of justice and public service in cooperation with the legal profession.

The administration of justice and public service cannot be accomplished by an attorney whose performance is compromised. Therefore, paralegals who are aware of an issue have an ethical requirement and responsibility to do what they can to help address the issue.

Ellen Lockwood, ACP, RP, is the Chair of the Professional Ethics Committee of the Paralegal Division and a past president of the Division. She is a frequent speaker on paralegal ethics and intellectual property and the lead author of the Division’s Paralegal Ethics Handbook published by Thomson Reuters.