Lawyers carry an ethical duty of competent representation for clients, an obligation that in some states requires colleagues to report professional lapses they observe to the bar.

Many of these competency issues arise from issues of mental health, substance abuse or cognitive decline, with nearly 20% of lawyers struggling with mental health or chemical dependency issues, said Michelle Galloway, a Cooley attorney who discussed the topic at a continuing legal education seminar.

As many as 70% of legal disciplinary proceedings and malpractice claims involve substance use or mental health issues, according to Cooley’s materials.

“Who is in trouble and what are our obligations around that because we have to protect clients and make sure they’re getting competent representation,” Galloway said Thursday at the virtual event.

The American Bar Association’s Model Rules of Professional Conduct says that competent representation “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary.”

However, in California, the rules of professional conduct go further in defining competence for legal service as having the “mental, emotional, and physical ability reasonably necessary” to perform the service, Galloway said.

These same issues can come into play as lawyers age, with many practicing beyond a traditional retirement age of 60 or 65, said Galloway, a patent litigation specialist who also lectures at Stanford Law School.

Is there a point where lawyers who notice a cognitive impairment in an older colleague are compelled to report the decline in fitness? In many cases, the answer is yes.

“The state bars are really worried about this,” Galloway said. “The average age in the profession continues to increase and many lawyers are starting to practice longer.”

Legal operations staff and general counsel should also rely on their human resources colleagues, she said, as they are trained to support these difficult conversations and to know details of benefits that are available to help that attorney.

Lawyers’ well-being is slowly becoming more open to discussions in the profession, but there remain profound gaps between identifying the problems of mental health and substance abuse and concrete, widespread strategies to mitigate them.

More than half of lawyers said they suffered from disrupted sleep and anxiety, 56% and 55%, respectively, according to the 2024 Attorney Well-Being Survey by Bloomberg Law. These signs of professional burnout are often accompanied by feelings of loneliness and poor mental health.

For colleagues hoping to help, there are often warning signs that emerge signaling that a lawyer is suffering from a mental health problem, Galloway said. Among them:

• A sense of inefficacy, as the person begins to frequently use the words “always” and “never” in their statements, denoting the lack of agency or futility.
• Cynicism
• Analysis paralysis, with the lawyer unable to make the frequent decisions usually required in legal service.

Among the efforts one can take to assess the positive aspects of their career, Galloway suggested making a quick daily list based on these questions:

• Who did I help today?
• What impact did I have on others today?
• What did I make progress on today?
• What am I grateful for?