Standards on Substance Use Disorders and Mental Health Conditions: Standard XII. Substance use disorders, mental health conditions, and co-occurring disorders among lawyers and judges

Standards adopted by the Supreme Judicial Court, acting on the advice of the Working Group on Substance Use and Mental Health.

Standard XII

A judge who reasonably believes that the performance of a lawyer or another judge is impaired by a substance use disorder, mental health condition, or co-occurring disorder must take appropriate action, which may include speaking directly to that person, notifying an individual with supervisory responsibility over that person, or making a confidential referral to an assistance program.  Further, if the lawyer's performance involves a violation of the Rules of Professional Conduct, or the other judge's performance involves a violation of the Code of Judicial Conduct, then the judge may be required to report the violation or take other appropriate action, depending on the gravity of the violation.  If the issue of professional performance arises in connection with an imminent or pending proceeding, the judge may consider postponing the proceeding, or deferring action, depending on the circumstances.  Clerks should also follow these principles and procedures, as consistent with their professional obligations and applicable codes of conduct, if they reasonably believe that the performance of a lawyer or judge is impaired by a substance use disorder, mental health condition, or co-occurring disorder.

Commentary

“A judge having a reasonable belief that the performance of a lawyer or another judge is impaired by drugs or alcohol, or by a mental, emotional, or physical condition, shall take appropriate action, which may include a confidential referral to a lawyer or judicial assistance program.”  S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.14 (2016).  "Appropriate action means action intended and reasonably likely to help the judge or lawyer in question address the problem and prevent harm to the justice system."  Id., Rule 2.14, Comment 2.  The action that is appropriate in a given set of circumstances depends in part on whether the lawyer's or the other judge's performance involves a violation of the applicable rules of conduct and the gravity of the violation. 

If a judge has actual knowledge that a lawyer's conduct involves a violation of the Rules of Professional Conduct, and the violation raises a substantial question regarding the lawyer's honesty, integrity, trustworthiness, or fitness, then the judge must inform the Office of Bar Counsel.  Id., Rule 2.15 (B); see also id., Terminology (defining "knowledge" as "actual knowledge of the fact in question," which "may be inferred from circumstances").  Similarly, if a judge has actual knowledge that another judge's conduct has violated the Code of Judicial Conduct, and the violation raises a substantial question regarding the judge's honesty, integrity, trustworthiness, or fitness, then the judge must inform the Chief Justice of the Supreme Judicial Court, the Chief Justice of the court on which the other judge sits, and the Chief Justice of the Trial Court in the case of a Trial Court judge.  Id., Rule 2.15 (A); see Committee on Judicial Ethics Opinion No. 2021-01 ("The application of Rule 2.15(A) turns on three inquiries: (1) whether you have actual knowledge of the conduct in question or such knowledge may be inferred from circumstances; (2) whether the conduct in question constitutes a violation of the Code; and (3) whether such violation raises a substantial question regarding the judge's honesty, integrity, trustworthiness, or fitness as a judge"). 

If a judge has actual knowledge of, or has received credible information indicating a substantial likelihood that a lawyer has violated the Rules of Professional Conduct, or that another judge has violated the Code of Judicial Conduct, in a way that does not raise a substantial question regarding the lawyer's or the judge's honesty, integrity, trustworthiness, or fitness, then other, less grave, action may be appropriate.  Id., Rule 2.15 (C), (D),  and Comment 2.  In the case of a lawyer, appropriate action may include communicating directly with the lawyer, reporting to the lawyer's supervisor or employer, or reporting to the Office of Bar Counsel.  Id., Rule 2.15, Comment 2.  If the issue arises in connection with an imminent proceeding, the judge should make inquiries and, if necessary, postpone the proceeding.  "If the lawyer is appearing before the judge, a judge may defer taking action until the matter has been concluded, but action should be taken as soon as practicable thereafter.  Reporting a violation is especially important where the victim is unlikely to discover the offense, and an immediate report is compelled when a person will likely be injured by a delay in reporting."  Id.  In the case of another judge, appropriate action may include communicating directly with the other judge, reporting to the first justice or regional administrative justice of the court where the violation occurred or where the judge often sits, reporting to the Chief Justice of that judge's court, and/or calling the judicial hotline maintained by Lawyers Concerned for Lawyers.  These lists of actions are illustrative and are not meant to be limiting.  Id.

More generally, whenever a judge has a reasonable belief that the performance of a lawyer or another judge is impaired by drugs or alcohol, or by a mental, emotional, or physical condition, the judge must  take appropriate action, which may include a confidential referral to a lawyer or judicial assistance program, communicating directly with the lawyer or the other judge, or notifying a person with supervisory responsibility over the lawyer or the other judge.  Id., Rule 2.14, and Comment 2. 

A list of relevant resources to support lawyer well-being can be found here on the website of the SJC Standing Committee on Lawyer Well-Being.  The most extensive assistance program is Lawyers Concerned for Lawyers | Massachusetts (LCL), which provides free and confidential services, including mental health resources and addiction recovery support, to lawyers, judges, law students, and other legal professionals in accord with Rule 1.6 (d) of the Massachusetts Rules of Professional Conduct (S.J.C. Rule 3:07).  A judge who reasonably believes that the performance of a lawyer or another judge is impaired by a substance use disorder, mental health condition, or co-occurring disorder may confidentially recommend LCL's services to the lawyer or the other judge, and the lawyer or the other judge can contact LCL directly.  The concerned judge may also contact LCL to consult about the nature of the impairment or a strategy for approaching the lawyer or the other judge.  More information about LCL can be found at lclma.org or by calling 617-482-9600. 

These principles and procedures also provide useful guidelines for clerks to follow, as consistent with their professional obligations and applicable codes of conduct, if they reasonably believe that the performance of a judge or lawyer is impaired by a substance use disorder, mental health condition, or co-occurring disorder.   Note that clerks who are lawyers, and other staff counsel within the courts, are also subject to Rule 8.3 of the Massachusetts Rules of Professional Conduct (S.J.C. Rule 3:07), which sets out reporting obligations concerning professional misconduct by other lawyers or judges that are similar to those in Rule 2.15 of the Code of Judicial Conduct.  

6. See Standards for Certain Office Procedures for the Probation Offices of the Superior Court Department, Probate and Family Court Department, District Court Department, Boston Municipal Court Department and the Juvenile Court Department, Commissioner of Probation, Standard 5:05.