March 2024 Ethically Speaking - An (Attorney’s) Mind Is a Terrible Thing to Waste: Competency, Mental Health, and Substance Abuse

by Jason Moberly Caruso

The California Rules of Professional Conduct (CRPC or Rules) impose on all attorneys the duty to “perform legal services with competence.” Cal. Rules of Prof’l Conduct R. 1.1(a). When one speaks of attorney competence in any legal service, they often mean Rule 1.1(b)’s requirement that the attorney apply the learning and skill reasonably necessary for the performance of such service. Attorneys are expected to know the legal principles and rules commonly known by well-informed lawyers. Camarillo v. Vaage, 105 Cal. App. 4th 552, 561 (2003). And if attorneys do not have the requisite knowledge or experience, they are required to either gain that knowledge via research, or by consulting or associating with experienced counsel. Cal. Rules of Prof’l Conduct R. 1.1(c); Janik v. Rudy, Exelrod & Zieff, 119 Cal. App. 4th 930, 937 (2004); Lewis v. State Bar, 28 Cal. 3d 683, 685 (1981).


But knowledge alone does not establish competence. Less often considered is Rule 1.1(b)’s further requirement that the attorney also have the “mental, emotional, and physical ability” necessary to accomplish the ends of the representation. Where the requisite mental or physical ability is lacking, affected attorneys are obligated to decline or withdraw from representation.1 Cal. Rules of Prof’l Conduct R. 1.16(a)(3). Serious interference with attorneys’ performance can result in discipline. Smith v. State Bar, 38 Cal. 3d 525, 540 (1985) (psychiatric conditions); Gary v. State Bar, 44 Cal. 3d 820, 824 (1988) (alcohol abuse); Snyder v. State Bar, 18 Cal. 3d 286, 293 (1976) (mental strain). In the most severe cases, the State Bar is empowered to place attorneys on involuntary inactive enrollment if they are incapacitated as a result of physical or mental illnesses or substance abuse, and the courts may assume jurisdiction over affected attorneys’ practices if warranted. See Cal. Bus. & Prof. Code § 6007; Cal. State Bar Rules Proc. R. 5.190-5.199.

Statistically, readers of this column are unlikely to experience conditions so severe as to require discipline or judicial intervention. However, attorneys should bear in mind that safeguarding their mental health is a core component of the duty of competence.

The legal profession is traditionally renowned (accurately or not) for a “work hard, play hard” mentality, with some attorneys “playing” harder than others. All attorneys of a certain age will recall three-martini lunches (and other significantly more negative behaviors), often explained away as lawyers just “blowing off steam” or venting professional stress. While many of these behaviors have faded away due to changing mores and increasingly diverse workplaces, these behaviors (and the mental health issues so often associated with them) remain a problem.

In 2016, a landmark study was conducted and published by the Hazelden Betty Ford Foundation and the American Bar Association. P. Krill, et. al., The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys (Addiction Medicine, Vol. 10, No. 1, January/February 2016). The study included a sample of almost 13,000 attorneys in nineteen states, with a high level of diversity of age, race, and gender.

The results were sobering: approximately a quarter of respondents reported experiencing symptoms of depression, anxiety, and stress. A fifth screened positive for hazardous, harmful, and potentially alcohol-dependent drinking. Perhaps unsurprisingly, men had a higher proportion of positive screens. A statistically significant age difference was found: respondents thirty years of age and younger were more likely to have a higher score than their older peers.

The study concluded that attorneys engaged in problematic drinking at a higher rate than other professional populations. It noted that physicians experienced substance use disorders at a rate similar to the general population, but that potential physician impairment generated significantly less public interest and regulatory scrutiny. The study recommended prioritization and advancement of attorney-specific prevention and treatment interventions.

Subsequent studies have confirmed the pervasiveness of the issue and highlighted the disparate effect of the issue by gender. A 2021 study found that a quarter of female attorney respondents contemplated leaving the profession due to mental health concerns, compared to 17% of men. J. Anker, P. Krill, Stress, drink, leave: An examination of gender-specific risk factors for mental health problems and attrition among licensed attorneys, PLoS ONE 16(5): e0250563 (2021). “Overcommitment and permissiveness toward alcohol at work were associated with the highest likelihood of stress and risky drinking (relative to all other predictors) for both men and women.” Id. The COVID-19 pandemic appeared to magnify existing issues: women who reported an increase in drinking due to the pandemic were seven times more likely to drink riskily, while men were four times more likely.

Another 2021 study noted attorneys experience suicidal thoughts at approximately twice the rate of the general population. M.S. Thiese, et al., Depressive Symptoms and Suicidal Ideation Among Lawyers and Other Law Professionals, J. of Occupational and Environ. Med. 63, No. 5 (2021), at 381-86. The incidence of such thoughts is strongly correlated with anxiety, depression, and substance abuse, creating a synergistic effect. O. Bjerkeset, et al., Gender differences in the association of mixed anxiety and depression with suicide, British J. Psychiatry 192, No. 6 (2008), at 474-75.

Addressing these systemic mental health and substance abuse issues faces a series of barriers. Attorneys may feel practically unable to seek help, in that their admission of a problem may imperil their career. (A similar concern is held by many airline pilots, who may forego necessary mental health treatment so as to avoid being grounded. See M. Baker, “Is this Hell?” The Pilot Accused of Trying to Crash a Plane Tells His Story, The New York Times (Nov. 10, 2023), https://www.nytimes.com/2023/11/10/us/alaska-airlines-pilot-joseph-emerson-mushrooms.html.) Attorneys may also be rightfully concerned that their outreaches will not be kept confidential or may become the basis for liability claims, denials of advancement, or termination.

Aside from the general moral imperative to assist those who appear to be struggling with these issues, the CRPC imposes affirmative ethical obligations on other firm lawyers who know of an impaired lawyer’s conduct to take reasonable steps to protect any affected client and ensure the impaired lawyer complies with the CRPC and applicable law. Cal. State Bar Formal Op. No. 2021-206; see also Amer. Bar Assoc. Formal Op. No. 03-429. Rules 5.1 and 5.3 impose additional responsibilities on managerial and supervisorial lawyers to ensure that subordinate attorneys and staff also perform competently. Failure to discharge those responsibilities can independently result in discipline. See Cal. Rules of Prof’l Conduct R. 5.1, Comment [8].

These obligations are not reduced by the advent of “virtual law offices” and the increased prevalence of remote work. Indeed, practices that rely on such arrangements are required to “take additional steps” to ensure their practices are ethically compliant. Cal. State Bar Formal Op. No. 2012-184, (emphasis added); see also Cal. State Bar Formal Op. Interim No. 2023-208. Practically speaking, this may require special attention and creativity for firms whose lawyers scarcely (or never) physically come into the office.

Substance abuse issues may also result in firm liability. Studies estimate that approximately 60% of malpractice claims involve alcohol abuse. Legal Profession Assistance Conference, Drug and Alcohol Abuse & Addiction in the Legal Profession, available at http://www.benchmarkinstitute.org/t_by_t/mcle/sa.pdf. Serving alcohol at the office holiday party can result in employer liability, even for off-site injuries to third parties. See Childers v. Shasta Livestock Auction Yard, Inc., 190 Cal. App. 3d 792, 810 (1987). And alcohol’s role in cases of sexual harassment and hostile work environment claims is well known to every employment law practitioner.

Firms must also be concerned with mental health and substance abuse issues as it concerns employee retention and burnout. Women are reported to represent 50% of associate attorney positions, and as much as 55% of law school students. The National Association for Law Placement, 2023 Report on Diversity in U.S. Law Firms, available at https://www.nalp.org/reportondiversity; Amer. Bar Assoc., 2023 Profile of the Legal Profession, available at https://www.abalegalprofile.com/women.html. Women lawyers demonstrate significant and unique levels of attrition when compared to their male counterparts. Thomson Reuters, 2022 Law Firms Stay-Go Report, available at https://www.thomsonreuters.com/en-us/posts/legal/law-firms-stay-go-report-2022/. Accordingly, law firms must address mental health or substance abuse factors’ contribution to women lawyer attrition so as to not restrict the talent pool.

A variety of solutions and programs exist to address these issues. At the firm level, solutions can be as simple as fostering positive engagement through events, mentorship programs, and the like. Alcohol need not be banned at firm events, but should also not always be the focus or the primary reason folks come together.

The State Bar also offers the Lawyer Assistance Program (LAP) (also known as the Attorney Diversion and Assistance Program). LAP offers voluntary, confidential mental health and substance abuse assessments and counseling. (LAP also provides a “monitored” program to which participants may be referred as the result of an investigation or disciplinary proceeding.) LAP reported a significant spike in voluntary intakes in 2021, from 141 to 192, representing its largest percentage year over year since its inception in 2002. Cal. State Bar, Lawyer Assistance Program 2021 Annual Report, available at https://www.calbar.ca.gov/Portals/0/documents/reports/2022/2021-Lawyer-Assistance-Program-Annual-Report.pdf. While the increase may be cause for concern, there is a silver lining in that more attorneys are acknowledging the need for help and seeking it out. Reducing the stigma associated with such outreaches will necessarily ensure that affected attorneys obtain the help they need before such issues result in more severe consequences.

Other programs include The Other Bar (https://otherbar.org/), a network of recovering lawyers, law students, and judges throughout California, focused on confidentially assisting others within the legal profession who are suffering from alcohol and substance abuse problems. The Other Bar is a private organization, independent of the State Bar. In addition to facilitating meetings and mentorship, representatives of The Other Bar can also make confidential, compassionate outreaches to colleagues or someone else that may need help.

Prioritizing and advocating for your own mental health and physical health is key. Private therapy and coaching is widely available. Making time for a passion, sport, or hobby outside of the office is not a zero-sum game with the billable hour; in fact, such pursuits can make you a more effective attorney. Last, but not least, take the time to check in with colleagues who might be struggling in one way or another; it could make all the difference.


  1. Standing alone, neurodivergence or mental or physical impairment does not have ethical implications. Rather, competence is only concerned with the effect, if any, of such conditions on attorneys’ ability to effectively practice law. Cal. State Bar Formal Op. No. 2021-206.

Jason Moberly Caruso is a partner with Newmeyer Dillion in Newport Beach, California, where he specializes in complex environmental and land use matters. He has been certified as a specialist in Appellate Law by the California Board of Legal Specialization. Mr. Caruso is a member and the secretary of the OCBA’s Professionalism and Ethics Committee, and can be reached at jason.caruso@ndlf.com. The views expressed herein are his own..