The case for lawyer well-being

Justice Biran began his recent opinion Attorney Grievance Commission of Maryland v. Sara Mohamed Samy El-Shall with a reference to the studies that identified the widespread mental health issues facing lawyers. In his words, the case “highlights the need for lawyers struggling with mental health and substance issues to seek assistance promptly.”

I wholeheartedly endorse his view.

For my purposes, however, there is more to learn from Ms. El-Shall’s matter. Her defense was doomed from the start. She did not actively participate or cooperate. She failed to file a timely response to the Petition for Disciplinary or Remedial Action, so the Attorney Grievance Commission moved for an Order of Default, Ms. El-Shall did file an Opposition to the Motion for Default identifying acute mental health challenges as the reason for her delay. The court set a virtual hearing, but unfortunately, she did not appear. The court thus entered an Order of Default.

Sadly, Ms. El-Shall never moved to vacate the default. Thereafter, the commission filed both a Motion for Default Judgment and a Motion for Sanctions for failure to respond to discovery. The court granted both motions. All averments were deemed true. Ms. El-Shall did not appear for her evidentiary hearing, and as expected, the Court found multiple rule violations.

Here is where my interest in the case peaked. Despite her failure to participate in the trial court, Ms. El-Shall retained counsel and participated in the proceedings before the Maryland Supreme Court. Most interesting to me was her position on the aggravating factor of “likelihood of repetition of the misconduct.”

Ms. El-Shall obtained the opinion of a well-respected psychiatrist with extensive experience in attorney grievance cases. She produced a report from Dr. Tellefsen who diagnosed Ms. El-Shall with several mental health disorders including substance abuse. According to the opinion, Dr. Tellefsen also opined that the misconduct would not be repeated because of Ms. El-Shall ongoing treatment and sobriety. Unfortunately for Ms. El-Shall, the court did not consider these opinions because they needed to be presented at trial. The court thus entered a sanction of an indefinite suspension and conditioned her return to practice on proof of fitness to practice law.

My takeaways from the case are many. There are several which are obvious. Failing to respond to client emails and telephone calls is a recipe for disaster. Ignoring letters from bar counsel compounds the problem, and not participating after the filing of a Petition for Disciplinary and Remedial Action makes matters worse.

On a more complex level, when dealing with health issues, mental health issues and substance abuse issues, a respondent attorney must proactively work to develop that evidence early in a case. The legal standard applicable to this type of mitigation evidence is that it must be “the root cause” of the violation.

Unfortunately, the root cause standard is hard to meet. I have found it difficult for medical experts to go so far as to say the health issue was the root cause. I have also found that hearing judges rarely find the health issue was the root case. So, it does not surprise me that the best evidence available for Ms. El-Shall was to argue the misconduct would not be repeated.

That said, I also do not see the Supreme Court loosening the “root cause” standard, so I believe it is here to stay. The Maryland Supreme Court has had several opportunities to revisit the standard and has chosen not to.

I do not mean to paint a grim picture. My experience is that AGC and Bar Counsel do not wish to punish lawyers with mental health issues. But that requires lawyers to be responsive to inquiries and open about mental health issues when the initial inquiry letter arrives. And, if you get a letter and have health issues, be sure to advise your own counsel in case you need to develop mitigation evidence to try to meet the root cause standard.

Craig Brodsky is a partner with Goodell, DeVries, Leech & Dann LLP in Baltimore. His legal ethics column appears monthly. He can be reached at [email protected].