Health / Wellness, Money

Should Lawyers Have Mental Health And Financial Examinations?

Requiring lawyers to undergo mental health and financial examinations would be costly and time consuming.

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The most common reason lawyers are disbarred is for stealing client funds, usually by mismanaging the law firm’s trust account. During the disciplinary proceedings, the accused attorney will usually beg for mercy. He will claim that his actions were to due to lack of organization, sudden financial problems, and mental health issues.

A few of these lawyers are cunning crooks who conveniently make up illnesses to try to save their careers. But many lawyers have had mental health issues that have been ignored for years which will eventually have a negative impact on their personal and professional life. Unfortunately, these people tend to seek treatment only when it’s too late.

Some have suggested that lawyers should have to undergo mental health and financial examinations not only for their own well-being, but to minimize the chances of future client theft. However, these examinations are based on questionable assumptions and present legal and practical difficulties.

Mental Health Examinations

It is common knowledge that law practice is very stressful. The pressures of the job can lead to a variety of mental malaises such as burnout, depression, anxiety, anger issues, and obsessive compulsive disorder to name a few. While many are able to manage, some will need professional help. Perhaps an involuntary examination can result in early detections of potential mental health problems. If detected early, then they can be treated before the lawyer or their clients are harmed.

But when and how often should an attorney have to take a mental health examination? It can be periodic, such as once every 10 years. Or the state bar can order an attorney to undergo an exam if they have reason to question their mental fitness. To prevent abuse, some suggest that the state bar should intervene only if they receive reports from credible people, such as family members, other attorneys from the same firm, or from a judge whom the attorney regularly works with.

But would a mental health examination violate the Americans With Disabilities Act? Maybe. In 2014, the Department of Justice’s Civil Rights Division stated that asking mental health questions on a character and fitness examination violates the ADA.

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Also, the threat of mental health examinations might discourage attorneys from being passionate advocates. One of the goals of the exam is to promote a more cordial, professional atmosphere by putting stricter controls on some of the rowdier members of the tribe. But this may have the effect of punishing attorneys who dare to speak up and look crazy to people who disagree with them. Not only would this hurt clients in the long run, but this sounds like suppression of speech in violation of the First Amendment.

Financial Examinations

It is a common assumption that someone with financial troubles is likely to steal from others if they can get away with it. So it has been suggested that attorneys should have their finances audited. Proponents argue that if minor irregularities are found, the attorney can be advised to get assistance from bookkeepers, accountants, and other finance professionals. This will also help attorneys manage their time and even save money in the long run. In the worst case scenario, the law firm’s bank accounts can be frozen and a third party can manage the accounts to ensure that clients and other creditors are paid.

One common way to review someone’s financial position is to do a credit check. Credit checks are used to review both positive and negative listings and also to determine a person’s debt-to-income ratio. Employers do credit checks on job applications for certain positions, usually involving money management. Employers that use credit checks justify it on the questionable assumption that if a person uses their credit responsibly, then they are responsible with other aspects of their lives.

But it is well known that credit reports can be error prone. An FTC report indicates that one in five Americans has an error on his or her credit report. And five percent of Americans endure errors so serious that they are likely to be overcharged for credit card debts, auto loans, insurance policies, and other financial obligations. Since most people rarely check their credit, they won’t know about a mistake for years. And if a mistake is found, it can take months before the error is fixed. In the meantime, you are presumed to be a deadbeat until proven otherwise.

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Another suggested financial auditing technique is to review a lawyer’s bank account activities. This is to ensure that the lawyers are in sound financial shape. This also ensures that they are properly depositing client funds into a trust account and withdrawing when attorneys’ fees are earned. I think this is overly intrusive as it will practically turn the state bar into the IRS and the financial morality police. Whether a lawyer is in sound financial shape should not be anyone else’s business. Even the best of us get into financial trouble at some point in our lives. The state bar only needs to concern itself with whether the client’s funds are properly managed.

However, I think most state bars would have a difficult time enforcing this. Hiring financial investigators and auditors cost money. How many lawyers would be willing to increase their annual bar dues so that the funds will be used to monitor how they spend their money? I can guess that the number would be very close to zero.

Requiring lawyers to undergo mental health and financial examinations would be costly and time consuming for everyone involved with questionable benefits. While protecting clients are important, lawyers — who have already gone through years of additional schooling as well as a character and fitness exam — should not have to disclose the most intimate details about their personal and financial lives. It should only be required for the most serious situations.

Shannon Achimalbe was a former solo practitioner for five years before deciding to sell out and get back on the corporate ladder. Shannon can be reached by email at sachimalbe@excite.com and via Twitter: @ShanonAchimalbe.

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