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Recently Blogged about the American Bar Association (ABA) Hours of Delegates voting to approve model rules requiring that attorneys complete one hour of substance abuse and mental health education every 3 years.  Many attorneys work to a large extent by themselves and unlike many other professions can have very little support group to help them with the daily stresses of life.

When Lawyers are having problems with Stress & Substance Abuse, not only are they getting hurt, so are their clients.  In some cases, not being able to perform the duties owed their clients can cost their clients more than just money.  It may cost the client their freedom.

An example of what can go wrong is Akron Bar Assn. v. Bednarski

Attorney Bednarski’s problems also became her client’s problems.  From the decision of Akron Bar Assn v Benarkski here are a couple of actual examples:

1.       When David Jones Jr. retained Bednarski to represent him in an appeal of a criminal conviction and paid her a flat fee of $1,500. Bednarski did not maintain a client trust account, did not enter a written fee agreement with Jones, and did not notify him in writing that if she did not complete the representation he may be entitled to a refund of all or part of the fee. She also failed to have Jones sign an acknowledgment that she did not carry professional liability insurance. After entering an appearance in the appeal and requesting an extension of time for filing the brief, Bednarski did not respond to Jones’s numerous attempts to contact her. She also failed to file a brief on Jones’s behalf, and the appeal was dismissed for lack of prosecution. Consequently, the stay of Jones’s sentence pending appeal was lifted and he was ordered to report to the adult parole authority to commence his sentence. 

2.       Kacee Rae Moser retained Bednarski to defend her against a felony charge and a subsequent misdemeanor charge for conduct that allegedly occurred while she was released on bond to house arrest. Moser paid Bednarski $1,360 for the representation, but there was no written fee agreement. Bednarski did not have a client trust account and did not carry professional liability insurance. Nor did she have Moser sign a notice that she may be entitled to a refund of all or part of the fee if Bednarski failed to complete the representation. Bednarski successfully defended the misdemeanor charge, but due to a breakdown in communication before a jury trial on the felony charge, she informed Moser that she was preparing a motion to withdraw from the case. Although Moser’s new counsel entered an appearance in the case, Bednarski never moved the court to permit her to withdraw from the representation. 

Attorney Bednarski’s downward spiral began after her divorce from her husband who was also her law partner.  Her bank closed her trust account.  Because she was no longer making enough money to support herself, her utilities in her house which was also her office were shut off.   She began to live in her car and/or with friends and did not always receive her mail.  Bednaski also admitted that she had begun drinking heavily prior to her divorce,  drinking at 4 or 5 drinks a day.  She continued her heaving drinking up until 2015 when she was hospitalized for pancreatitis. 

Even after all of this she has failed to get professional help for the drinking problem.  Attorney Benaski was suspended for 2 years by the Ohio Supreme court.

In Ohio, an attorney is not required to carry Attorney Malpractice Insurance.  But at the initial engagement the attorney is required to inform the client whether the attorney does have Lawyers Professional Liability Insurance.   Not properly disclosing this will likely result in a suspension of the attorney for a period of time.  

Many attorney malpractice claims stem in one way or another from stress or substance abuse.  Some of the most serious problems morph into multiple claims with disciplinary actions, suspensions and/or disbarment.  So if you or you know of an attorney that has a depression problem make sure that you or they get the help needed.

www.L2Ins.com

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