Getting It Right: Bar Counsel’s Ethical Helpline Helps Lawyers Resolve Ethical Dilemmas and Avoid Sleepless NightsPosted: August 17, 2020
It was a situation that would fray the nerves of any lawyer, even one inured by three decades of experience in handling criminal cases and the ethical issues that can go along with such a practice. The lawyer’s client was on trial for first-degree murder; he had allegedly attended a party hosted by the family of his ex-girlfriend and, while there, robbed and shot her new boyfriend. The Commonwealth rested its case after presenting evidence that included eyewitness testimony, surveillance video, and ballistics. The client, rather than exercise his Fifth Amendment right not to testify, and against the lawyer’s advice, told the lawyer that he planned to take the stand in his own defense. The lawyer understood that some specific aspects of the testimony the client planned to give would be false, which meant that the lawyer was now faced with a serious ethical problem if the client insisted on being called to the stand. Rule 3.3(e) of the Massachusetts Rules of Professional Responsibility prohibits attorneys from knowingly eliciting false testimony from a witness or referring to such evidence in closing arguments. The lawyer therefore needed to negotiate a path between two potentially conflicting ethical duties. As counsel for a criminally accused defendant, he needed to safeguard his client’s rights to a fair trial while zealously advocating for his acquittal. But as an officer of the court, he was forbidden from participating in the presentation or use of perjurious testimony. Failing to find the appropriate middle ground between these competing requirements could lead to dire consequences.
The solution to the lawyer’s dilemma came as a result of a telephone call to the “Ethical Helpline,” a service of the Office of Bar Counsel (OBC). The evening before the trial was set to resume, the lawyer called the Ethical Helpline and was put in touch with an experienced assistant bar counsel (ABC) to whom he explained the situation. She listened, directed the lawyer to the relevant rules, comments, and case law, and helped him outline the steps he would need to take during the trial to avoid assisting in the presentation of false testimony. As a result, the client offered his testimony in the form of a narrative rather than through the usual process of question and answer.
The procedure used by this lawyer, and the results of the case, are recounted by the Supreme Judicial Court in its recent decision, Commonwealth v. Leiva, 484 Mass. 766 (2020). Rejecting the client’s argument that having to testify by narrative was prejudicial to his defense, the justices noted the probity the lawyer had displayed, not only in the way he had handled the Rule 3.3 issue when it was time for his client to testify, but also in his decision the evening before to call OBC for guidance on how to proceed. Because of his “prudent advance consultation with bar counsel,” the lawyer had, in the Court’s words, “exemplified conduct befitting a member of our profession.” Id. at 784-85.
The Leiva case may be the first time a call to the Ethical Helpline has figured into a decision of the Supreme Judicial Court, but Leiva by no means represents the first time the Ethical Helpline has assisted an attorney in working through a difficult and stressful ethical problem. A staff of approximately a dozen ABCs collectively field about 2,000 calls every year through the Ethical Helpline as an adjunct to their usual duties investigating and prosecuting cases of alleged misconduct.
Unsurprisingly, the range of topics presented to the OBC through the Ethical Helpline is immense, covering nearly every aspect of the practice of law. On any given afternoon’s session, the Ethical Helpline may hear from a caller who is uncertain about how to deal with a client who has disappeared, a lawyer needing help applying the rules on advertising and solicitation to her marketing idea, or a sole practitioner attempting to untangle a knotty conflict-of-interest question that arises because of a promising job opportunity. Many of the calls, like the one in Leiva, supra, raise serious and urgent questions that go to the heart of the lawyer’s duties to a client. For example, the Ethical Helpline has assisted numerous lawyers in deciding whether a client’s menacing words or declining cognitive state justify taking actions that might require disclosure of otherwise confidential information. The Ethical Helpline provides an opportunity to get immediate, practical guidance on these and many other situations that arise in a lawyer’s practice.
Both the evolving, technology-driven nature of the practice of law as well as the intrusion of outside events can shape the kinds of questions presented to OBC on the Ethical Helpline. Callers increasingly inquire about emerging issues such as the ethical implications of storing case files in the cloud, or whether a firm can post a rebuttal to a negative online review. In connection with the coronavirus pandemic, helpline staff have fielded a variety of calls from lawyers who were attempting to cope with their inability to meet or appear in court with clients, comply with discovery deadlines, or otherwise attend to the needs of a case as they would have in the absence of Covid-19-related restrictions. The Ethical Helpline assists callers in dealing with these novel ethical problems while providing the added benefit of keeping ABCs abreast of real-world issues that are transforming the practice landscape.
Not all calls or questions are appropriate for the Ethical Helpline and there are limitations on how the information a caller receives should be used. The service is only offered to attorneys admitted in Massachusetts, rather than out-of-state lawyers, non-lawyer staff, or members of the general public. Moreover, the service is expressly offered for the purpose of assisting lawyers in resolving their own ethical dilemmas, not complaining about another attorney’s conduct. (Such complaints, which may be mandatory under Mass. R. Prof. C. 8.3 depending on the seriousness of the misconduct, should be directed to the Attorney and Consumer Assistance Program which performs the intake and screening functions for OBC.)
Importantly, the Ethical Helpline cannot offer legal opinions or legal advice, and lawyers who avail themselves of the service remain responsible for their own ethical conduct at all times. Because of the informal nature of the consultation and the limited facts presented on the call, the purpose and focus of the call is to assist lawyers in identifying the ethical rules and principles that apply to their situation and clarifying any particular points the caller needs to consider in order to address the situation appropriately. Depending on the nature of the problem, the Ethical Helpline may refer the caller to any of dozens of existing OBC web articles addressing topics that are relevant to the caller’s predicament. When a question is not clearly addressed by the rules or the comments thereto, and especially where the answer to a question depends on a question of substantive or procedural law outside the area of legal ethics, callers are advised to conduct their own further legal research in deciding how to proceed. In some instances, the ABC handling the call may suggest seeking a formal ethics opinion from the Massachusetts Bar Association or the Boston Bar Association.
Although callers to the Ethical Helpline do not identify the client or case that prompted the call, they do have to identify themselves; the Ethical Helpline does not take anonymous calls. However, bar counsel will not disclose the content of a call to third parties and generally will not act on any information provided by a caller except to offer guidance in construing the caller’s ethical responsibilities. The calls are not recorded, but the Office of Bar Counsel keeps a record indicating the date a call took place and the name of the ABC with whom the caller spoke. As in Leiva, the fact that a lawyer sought guidance from the Ethical Helpline on an issue may prove relevant in a subsequent ethical or court proceeding, whether as an indication of the lawyer’s good faith desire to resolve a problem appropriately, to show that, subsequent to the call, the lawyer acted in manner inconsistent with the guidance he or she had received, or for some other purpose. For the most part, however, lawyers contact the Ethical Helpline not with a view to create a record of having consulted OBC, but out of a sincere desire to make the right decision in addressing a complicated or unfamiliar ethical problem, and to get the peace of mind that comes when the right decision comes into focus.
The telephone number for the Ethical Helpline is (617) 728-8750. The service operates from 2:00 to 4:00 p.m. on Mondays, Wednesdays, and Fridays, although inquiries outside those days and hours can usually be accommodated for lawyers in need of emergency assistance. Lawyers who find themselves in an ethical quandary with no obvious solution, or who think they have arrived at the correct answer to an ethical dilemma on their own but simply want to talk it through before taking final action, should call the Ethical Helpline for assistance.
Robert Daniszewski is an Assistant Bar Counsel with the Massachusetts Board of Bar Overseers since 2014. In his prior civil practice, he concentrated on matters involving attorney professional responsibility, representing both lawyers and clients in such cases. He is a 1990 graduate of Boston College Law School.
Dave Kluft is an Assistant Bar Counsel with the Massachusetts Board of Bar Overseers. He graduated from Boston University Law School in 2003 and clerked for the Supreme Judicial Court. He is a former partner at Foley Hoag, and previously served on the Boston Bar Journal board of editors.
by Jeffrey Fortgang, Ph.D.
When I joined the clinical staff of Lawyers Concerned for Lawyers over 20 years ago, I expected that the focal problem among our clients would be alcoholism and other addictions. After all, the genesis of LCL, before any funding or staff, was a group of lawyers in recovery who sought to help save the careers and lives of their alcoholic peers. And, make no mistake, problems with alcohol (and to a lesser extent, drugs) continue to abound.But the number one presenting complaint at LCL for years has been either anxiety, stress or depression, which often go together. Similar findings appeared in a large-scale survey of lawyers published in 2016, which also found that alcohol problems and depression often co-occur in the same lawyers. In this article I seek to provide an overview of depression as it appears in lawyers, some of the obstacles that can stand in the way of their getting appropriate help, and how these obstacles can be surmounted – drawing upon my clinical experience and a recent survey that I conducted.
Nature of Depression
Depression is among the more treatable mental health conditions. It develops as the result of multiple converging factors, including biological (affected by neurochemical phenomena), hereditary (particularly for bipolar depression), individual psychology and resiliency (e.g., self-esteem, degree of characteristic optimism, experience of healthy loving and supportive relationships), and environmental (both past, such as upbringing and trauma, and present, such as home and work environment). A depressed person may find temporary relief in alcohol or addictive drugs, but over time heavy or frequent use of such substances actually tends to worsen the depression.
More lasting improvement in mood may be derived from psychotherapy/counseling, antidepressant medication, or a combination of the two. Antidepressant medication does not lend itself to abuse, since its action is cumulative rather than immediate, but some trial and error may be involved in finding the most beneficial medication for the individual. Novel treatments—like the use of ketamine and procedures like transcranial magnetic stimulation—have not yet been fully examined.
There are also a number of lifestyle factors that can ameliorate and prevent depressions. These include exercise, meditation and relaxation, a balance between work and personal life, connections with community, and more. Unfortunately, the benefits of these factors are more difficult for a person in the midst of a depressive episode to grasp or pursue.
Obstacles to Getting Help
The legal profession, unfortunately but understandably, is imbued with a culture that tends both to contribute to the development of depression (under the “environment” category mentioned above) and to stand in the way of recognizing the problem and getting help for it. Much of the work of lawyers is inherently adversarial; in lawsuits or criminal trials, for example, there will be winners and losers, in about equal proportions. (Prominent psychologist Martin Seligman has discussed this issue in detail.) What’s more, attorneys may view other professional peers more as competitors than as comrades.
A skilled attorney possesses the ability to scan a document, argument, etc., for any errors or weaknesses – but this work mode, when transferred to life in general, is almost a prescription for how to lower one’s mood. Those who maintain better moods may be more likely to “see the glass as half-full,” and yet also recognize and accept their vulnerabilities. They allow themselves to express feelings in an authentic way to trusted others, and to ask for and accept help when needed. Lawyers, however, are acculturated to a role of problem-solver, in control; too many of them lose the distinction between professional role and true self. Having developed a professionally useful veneer of toughness, they may ignore their actual feelings and needs, in a counterproductive reach for self-sufficiency. And by design or practice, those practicing law are often less able to pursue the positive lifestyle choices that could serve as protective factors, often sacrificing the time necessary to pursue self-care, healthy relationships, or work-life balance to meet intense timing and workload demands while needing to appear both calm and competent.
These are generalization, of course, that certainly don’t apply to all lawyers and law students, and I have been encouraged by seemingly greater openness to these topics in new lawyers. But all too frequently clinicians at LCL are accustomed to encountering lawyers whose problems have been building for years, and who never sought any kind of assistance until they reached a point of major crisis.
Perspectives Gleaned from Survey
My LCL colleague Shawn Healy and I wrote a book about depression in lawyers, and I also conducted an anonymous survey of over 250 lawyers who identified themselves as having experienced clinical depression. The response rate seemed indicative of a pent-up wish to communicate about a problem that is widely prevalent among lawyers (at a rate that appears to be at least 3 times that of the general population) yet not often acknowledged. The anonymous nature of the survey seemed to provide a welcome means of sharing the experience of vulnerability in a profession in which that kind of openness might often be considered a liability.
Although most survey responders were over the age of thirty, the greatest number reported onset of depression during their twenties, an age that typically coincides with law school and the start of their careers. Other authors, in fact, have noted a surge in both depression and problem drinking during law school as the student is immersed in a demanding academic system and inducted into “lawyer culture.”
Among the depressive symptoms that those surveyed had first noticed were intense emotion (e.g., crying, despair), diminished energy and motivation, and a downcast perspective ranging from pessimism to hopelessness. In many cases, a sense of self-doubt and paralysis characterized the experience of depression. While a common phenomenon, it can lead to devastating consequences when important deadlines and correspondence are ignored (such as leaving mail from the Board of Bar Overseers unopened).
The lawyers represented in my survey tended not to confide in colleagues. Many of them pointed to shame, stigma, image, and fear of being viewed as “weak” as barriers to reaching out. Imbued in lawyer culture, a number of responders expressed the sense that slogging through a stressful work life, keeping much of their authentic selves very private, and viewing peers more as competitors than as supports were inherent aspects of professional life.
Surmounting Obstacles to Getting Help
Not all those who took the survey reported they were able to access effective treatment or experience improvement. Of those who did, many first turned to family members before finding and receiving the greatest benefit from professional mental health providers. In describing what helped them get past obstacles to acknowledging their depression and getting help, many pointed to getting a push from professional peers who, in some cases, were willing to share their own similar struggles and how they had gotten back on track. But such attempts to help can admittedly be awkward and perhaps especially complicated among lawyers. One survey respondent wrote, “Our system is one of confrontation rather than truth finding, which tends to make weakness a tool for winning rather than a cause for alarm for the health of a colleague.” On the other hand, I’ve received numerous calls over the years from lawyers and judges who are sincerely concerned about other attorneys. When they can find a way to persuade a colleague to come in, talk with me or one of the other clinicians, and put together a constructive plan, the long-term impact of their action can be invaluable.
Once an attorney recognizes he or she may have a problem, it is still challenging to ask for help. Delay and avoidance are very understandable, but often allow problems to mushroom to crisis proportions. Finding a provider who accepts the right health insurance plan is another obstacle. Lawyers Concerned for Lawyers can be one very useful resource.
LCL, funded through a small portion of your annual professional license fee, offers a range of services too varied to catalog here (see our website, www.LCLMA.org), provided by both law practice advisers and clinical staff. Clinicians meet with lawyers (and their family members) upon request to assess problems, offer brief counseling when indicated, and make referrals to outside clinical professionals for longer-duration services as needed. Referrals are made mindful of both individual needs and health insurance plan acceptance. As with any licensed mental health practitioner, our relationship with clients is confidential, and LCL is exempt from any requirement to report lapses in professional conduct. LCL also coordinates discussion and support groups, either in person or online, for those dealing with particular stresses.
Whether through LCL or another avenue toward appropriate treatment of depression, as one of the responders to my survey wrote, “There is no down side to treating this illness; you will feel better and you will be a better family member, friend and lawyer.”
Dr. Fortgang, licensed in psychology and alcohol/drug counseling, has been on Lawyers Concerned for Lawyers staff for 20 years and in private practice (Newton, Boston).