Abstract
When forensic mental health professionals find themselves working with seemingly impaired attorneys, a substantial dilemma is presented. The forensic professional must consider how, if at all, to respond to legal performance deficits that may reflect dementia, a substance use disorder, a mood disorder, or some other identifiable psychiatric condition. Two de-identified cases are presented that highlight the difficulty of providing expert witness and consultation services under such circumstances. Codified ethics guidance for attorneys, psychiatrists, and psychologists offers relevant, albeit rather limited, direction. Several overlapping options are proposed, including discreet inquiry, frank discussion, treatment referral, and withdrawal from participation.
A recent article about trauma-informed assessment1 posited a number of interactive responsibilities for the forensic mental health professional (FMHP), including, but not limited to, those involving examinees, attorneys, courts, the legal and mental health professions, and the wider society. Such obligations have often been addressed from a therapeutic jurisprudence perspective, which offers an approach to legal matters that aims to maximize well being without sacrificing other aims of the legal process.2 Discussion of these responsibilities in various forms has appeared regularly in the law and mental health literature.3,–,6 One notion that has been addressed only minimally is the related problem posed for the FMHP by an attorney (usually retaining counsel) who is apparently impaired by a substance use disorder, serious mental illness, cognitive decline, or other functional difficulties. This raises consideration of whether the FMHP has a responsibility to act in these situations and, if so, to whom that responsibility is owed.
One can begin by addressing the worst-case scenario, in which retaining counsel is unequivocally impaired. To our knowledge, no empirical study or professional commentary has examined the topic of how often FMHPs encounter this particular phenomenon. In our own forensic practices, these occurrences have been relatively uncommon, although conversations with colleagues suggest that others, too, have interacted with attorneys who display at least some degree of impairment.
The legal literature sheds some light on rates of impairment among practicing attorneys, although it remains essentially silent on the question of how FMHPs or other parties should (or could) respond in such situations. In a study commissioned by the American Bar Association, Krill et al.7 found that, in a sample of over 12,000 attorneys, about one in five reported problematic alcohol and substance use. Over half reported some form of mental health concerns, including a small percentage that acknowledged bouts of severe mental illness, such as bipolar disorder and suicidality. The mere presence of mental illness does not, of course, indicate deficient legal practice, although such problems can and often do result in at least some degree of occupational impairment. Additionally, professional commentaries note that the prevalence of cognitive impairment or dementia among attorneys may be rising, in part because the number of older attorneys continues to grow.8,9
The key concern we address in this article is what FMHPs should do in such clearly problematic situations. We raise the question of whether FMHPs are obliged to do or say something when counsel is manifestly cognitively challenged, intoxicated, or experiencing a severe and intrusive mental illness. If such an obligation exists, then fundamental questions arise concerning what degree of seeming impairment would call for action and, if so, toward whom such actions should be directed. The options open to FMHPs in these contexts are largely unexplored and undefined. Through the vehicle of de-identified case examples, we discuss the ways in which these impairments can manifest themselves, and how FMHPs might conceptualize the problem. Finally, we explore possible remedies as well as options that may be available to FMHPs when faced with such ethics conundrums.
At the outset, it is essential to define the concept of attorney impairment and to differentiate this concept from a host of other constructs. Generally, we consider impairment to encompass any dysfunctions affecting cognitive, emotional, or behavioral capacities that compromise legal practice. These may include difficulties with alcohol, mind-altering substances, fatigue, stress, or severe mental health conditions. Impairment may be transient or lasting; transient impairment might include mild to moderate intoxication, hangovers, or situational distress, whereas chronic impairment can come from active hallucinations, delusions, mania, persistent and severe depression, burnout, or dementia. This definition deliberately excludes incompetent practice that stems solely from inadequate education and training or poor preparation for a specific case. Similarly, we do not focus upon situations in which a FMHP merely disagrees with retaining counsel’s chosen course of action or method of presenting information, unless such attorney decisions are demonstrably influenced by a condition that impairs judgment.
Case Example 1
Initially, the expert only had uneventful telephone contact with an attorney who retained him to conduct competency and prior mental state evaluations in a capital murder case. Retaining counsel’s paperwork to confirm retention glided through the system without difficulty. During the evaluation itself, the defendant continuously implored the expert to have retaining counsel pay a visit. “It has been 18 months since my attorney was here in the jail,” the examinee reported. Subsequent meetings with counsel raised additional concerns. Counsel appeared to be seriously depressed. Episodically tearful, visibly sad, and displaying long latencies when speaking, this attorney was clearly having trouble remembering information from the examinee’s case, as well as difficulty processing content the expert had just conveyed in person.
Retaining counsel kept claiming not to be a very good lawyer and sometimes asked the expert for advice on what to do next. During their one meeting, this attorney unexpectedly sat at a grand piano in the law office and played various passages from Broadway show tunes. The expert once met with counsel and the examinee together and expressed pointed concern for the defendant and case alike but did not act further. The expert eventually testified during a two-day trial. Direct examination was scattered, unfocused, and disorganized. As a result, the expert's findings seemed to offer no probative help during the guilt phase. The defendant was eventually found guilty and sentenced to death.
A few months after the case concluded, the expert was told by mutual acquaintances that retaining counsel had been admitted to a private psychiatric hospital, which resulted in a mandatory law license suspension by the Ethics Division of the State Bar. The expert was never contacted by the defendant’s postconviction and appellate lawyers, did not know who they were, and did not seek out information that would enable the expert to contact them. It did not occur to the expert that FMHPs might act on their own to find these attorneys and offer to share what was known about counsel’s conduct and condition during trial.
Case Example 2
An expert was hired to testify in the matter of a doctor charged by an ethics board with poor documentation and record-keeping as well as other administrative problems. During the trial, counsel appeared unable to generate a coherent question, either to the expert or to the respondent. It was unclear whether this reflected a thought disorder or instead some primarily cognitive problem. The court granted almost all of the other side’s objections and became increasingly exasperated, eventually to the point of querying the expert directly on some basic matters. On direct examination, only rarely was the expert able to use the rephrasing locution, “I understand you to be asking me x and the answer to that is y” to salvage an unfocused question. Most of the seemingly relevant findings were never elicited.
What to Do
The question of what to do in the two situations described is not easy to answer. In such cases, it is reasonable to question first whether the FMHP has any responsibility to act upon initially identifying possible impairment, what if any action should then be taken, and to whom any duty would be owed. There is an essential tension for FMHPs when concerns about attorney impairment arise. On the one hand, we must remain sensitive to the fact that legal proceedings are conducted on the basis of rules that we may or may not fully understand and that lawyers are expected, as discussed below, to follow codified ethics guidelines that may differ significantly from our own. On the other hand, our backgrounds in the helping professions may inspire us to intervene as a means of promoting justice, equality, and the alleviation of human suffering. Finding a balance between these seemingly disparate obligations is a key task for FMHPs.
In framing this discussion, we consider key differences between FMHPs’ professional duties and their available options for acting. In practice, professional duties arise from laws, contractual terms agreed upon between the retaining party and the expert, and relevant ethics codes. Duties are obligations to act (or not) under applicable circumstances. Laws and ethics guidelines are often written broadly so that they may apply to many different professional situations. In contrast, we conceptualize options as the variety of actions available to an expert to remedy a specific, potentially problematic professional situation. Of course, these options should be informed by one’s understanding of the law and relevant ethics guidelines, but they do not seem to be mandated by any formal legal or ethics guidelines. Rather, they are possibilities for what an expert may choose to do in a given context.
In the following section, we review professional ethics guidelines published by the American Psychological Association, American Bar Association, American Medical Association, and the American Academy of Psychiatry and the Law. We note that these guidelines are relatively silent regarding what an expert must do when encountering an attorney who shows signs of impairment. Still, it is necessary for FMHPs to understand the general ethics principles and enforceable standards to generate options for what they may or may not choose to do to respond to attorney impairment in informed, responsible, and defensible ways.
Professional and Ethics Guidelines
FMHPs adhere to ethics codes that emphasize objectivity, professional boundaries, and responsibilities to the legal system. A clearly identified series of boundaries and duties to various parties and principles has been published in forensic mental health practice guidelines and standards.10,11 For example, a typical informed consent form is likely to convey that no medical advice or psychological treatment will be given to forensic examinees. Still, one can envision (and some codes and guidelines anticipate) emergent situations where such assistance could become necessary. For example, although the evaluator does not provide treatment, one set of guidelines for FMHPs states that a “limited physician-patient relationship may still be present, even in forensic assessments, placing some continued obligation on the forensic examiner” (Ref. 11, p S6), suggesting that an expert evaluator may be obligated to intervene if an imminent need to protect the examinee or the public arises in an evaluation context.
Ethics guidelines focus for the most part on the FMHP’s interactions with the examinee, not with the attorney. There may be occasions for reconsidering the existing contract with retaining counsel and related commitments. Experienced FMHPs may find themselves thinking in terms of the work they perform in disability or fitness for duty evaluations. That is, some evaluators have specific knowledge concerning how to assess the impact of mental health and situational factors on occupational functioning, and that knowledge may inform how to best conceptualize attorney impairment and proactively mitigate any effect such impairment may have on the gathering and weighing of clinical data or the communication of the evaluation’s findings. At the same time, it is worth bearing in mind that FMHPs have not been retained to assess the attorneys with whom they work, a job mandate that once again would raise important boundary and responsibility concerns.
Guidance can be derived from examining the various ethics and professional guidelines that pertain to how attorneys, psychiatrists, and psychologists may respond when they witness impairment among colleagues within, as opposed to between, their own respective fields. Although lawyers and FMHPs follow different ethics guidelines, such sources almost invariably emphasize a collective responsibility to address impairment among colleagues. Overall, these professions share a commitment to maintaining professional standards and to safeguarding the well being of those they serve.
Rule 1.1 of the American Bar Association (ABA) Model Rules of Professional Conduct compel attorneys to provide competent representation, reflecting the “knowledge, skill, thoroughness, and preparation reasonably necessary for the representation” (Ref. 12, p 6). Note that these are technical and competency matters regarding legal practice and do not explicitly address mental fitness or impairment. The ABA Model Rules (Rule 5.1 and Rule 5.2) further underscore the duty of supervisory attorneys to ensure the maintenance of ethics standards, which may compel intervention if a colleague is impaired.12
A 2003 formal opinion by the ABA Standing Committee on Ethics and Professional Responsibility stated that law firm partners and others with supervisory authority who become aware of an attorney’s mental impairment must take steps to provide reasonable assurance that the impairment will not result in breaches of ethics rules.13 This opinion further clarified that violations must be reported when severe enough to “raise substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer” (Ref. 13, p 1).
These documents do not directly inform options available for FMHPs to pursue when they observe characteristics or behaviors of impairment in the attorney, because such options pertain only to obligations attorneys have toward one another. Still, it is worth noting that forensic experts are often retained because they possess specialized knowledge regarding impairing conditions and how such impairments affect psycholegal abilities. Given that the legal profession seeks to identify and assist those attorneys who would likely benefit from intervention, we can consider whether FMHPs have a responsibility, or perhaps at least an implicit opportunity, to help in this regard, even if no explicit responsibility or duty exists. To that end, we contend that evaluating experts should become and remain aware of the sorts of resources available to attorneys who are struggling with various psychiatric and substance use problems. As described below, our reading of the American Psychological Association’s Ethical Principles of Psychologists and Code of Conduct10 and the American Academy of Psychiatry and the Law’s AAPL Practice Guideline for the Forensic Assessment11 leads us to conclude that consulting with mental health colleagues about concerns regarding ostensibly impaired attorneys is sometimes both permissible and warranted.
Some potentially useful options for FMHPs with regard to consultation and reporting are recommended in the Ethical Principles of Psychologists and Code of Conduct,10 which offers explicit guidance to psychologists regarding proper ways to proceed when a colleague commits an ethics infraction. Standard 1.04 dictates that, when psychologists believe an ethics violation may have occurred, they attempt to resolve the concern by discussing it with that individual if an informal resolution appears appropriate and confidentiality is not violated. Standard 1.05 indicates that psychologists can take further action if the ethics infraction has substantially harmed or is likely to substantially harm another individual. Examples of possible remedies listed in the standard include referral to state or national committees on professional ethics, state licensing boards, physician or attorney health committees, or appropriate institutional authorities. Note that these standards refer to psychological colleagues who are impaired and not to retaining counsel; thus, consultation or referral is not mandated when an examiner interacts with an impaired attorney.10 In a like fashion, the American Medical Association’s AMA Code of Medical Ethics requires doctors to identify and address the status of impaired physicians.14
The AAPL Practice Guideline for the Forensic Assessment states that “physicians have an obligation to assist in the administration of justice” (Ref. 11, p S4). This guideline further articulates that the role of the forensic psychiatrist is to assist the court and that this obligation sometimes requires the clinician to step outside of the doctor-patient relationship and serve the interests or needs of the court, retaining counsel, or another third party.11
Although these ethics codes primarily refer to obligations concerning colleagues within the same field, they provide potentially useful insights for FMHPs. The emphasis on professional competence, intervention when impairment is observed, and the duty to maintain ethics standards offers a framework that FMHPs can consider when faced with attorney impairment. Although no direct obligation exists, the principles outlined in these guidelines suggest that FMHPs should be aware of the impact of impairment on legal proceedings and consider available options responsibly.
Evaluator Options
As we have noted, FMHPs may be subject to an ethics conflict if retaining counsel is severely impaired and consequently unable to represent the examinee adequately. The potential conflict would arise from competing demands stemming from the obligation to assist with the administration of justice and the requirement that FMHPs adhere to professional boundaries. On one hand, it is reasonable to question whether and how an FMHP should respond if an attorney is unequivocally impaired and thus incapable of effective representation, as the administration of justice ostensibly requires competent representation for all parties within a given case. On the other hand, as we have noted, experts are retained to evaluate an attorney’s client, not the attorney, and therefore, offering any semblance of a clinical opinion or guidance pertaining to the attorney’s functioning would seem to go outside the bounds of what they have been retained to do. Early in the evaluation process, the observant and prudent examiner may attend with care to the initial contact with retaining counsel. If major indications of impaired functioning are present, declining the referral makes sense. Of course, that does not resolve the problem for the attorney’s client or for already retained FMHPs who are in the process of undertaking the examination. We have not been able to identify any codified guidance for such situations, and few possibilities are articulated in the ethics guidelines previously discussed.
Attorney impairment can take many forms. Moreover, evaluative contexts and demands are similarly diverse. Thus, there is no universal solution for evaluators who face these situations. We strongly advise that experts adhere to a structured decisional framework for ethical decision-making and problem-solving when encountering situations in which an attorney is exhibiting signs of impairment. One such model for decision-making in a forensic context was discussed by Otto et al.15 Their nine-step model was adapted from the Canadian Code of Ethics for Psychologists16 and includes identifying individuals or groups who may be affected by a course of action, identifying ethics concerns or principles at hand, considering how personal biases or self-interest may influence decision-making, seeking various sources of authority (e.g., laws, ethics codes, or authoritative sources), consulting with colleagues, identifying courses of action and likely outcomes of each, choosing a course of action based on standards and values, evaluating the outcome and remedying any negative occurrences, and taking appropriate action to prevent future occurrences of the dilemma.
Of particular relevance to our article is the sixth step of Otto and colleagues’ decisional model, which involves identifying evaluator options. Here, we propose some options to consider and perhaps to rule out, which we have derived from our reading of professional ethics codes concerning impairment among colleagues and from resources regarding appropriate professional remedies for addressing colleagues who exhibit impairment in the workplace. Notably, this list of options is not exhaustive, as there are many possible actions a FMHP could conceivably choose when encountering an impaired attorney. Consistent with the model of ethical decision-making and problem-solving, when deciding on a course of action, FMHPs are advised to consider the nature of the observed impairment and its potential impact on the evaluative process, along with the FMHP’s interpretation of professional ethics and guidelines. We encourage FMHPs to regularly reflect on their professional roles and ethics responsibilities to be prepared to navigate these complex situations in a conscientious, effective, and professional manner.
Consult with Colleagues
Seek consultation with colleagues or supervisors to gain different perspectives on the situation and gather insights on ethics considerations. This step allows FMHPs to get feedback about the seriousness of the perceived impairment, to get some protection in terms of potential legal or ethics action taken against the FMHP by the attorney, and to sort out possible options.
Refer Impaired Attorneys
Encourage the attorney to consult with colleagues. This is in line with the Model Rules of Professional Conduct,12 which encourage collaboration when attorneys encounter situations with which they are not familiar or when they are otherwise unsure about how to proceed.
Making a report about retaining counsel to some administrative body or attempting to treat retaining counsel might constitute boundary problems of some sort. Clearly, such actions constitute role changes, and it is often the case that emergent conditions in the attorney and the permissions they may afford are not present. A risk-benefit analysis and consultation may provide some guidance, but fundamental questions of role remain.
In any given situation, it may be helpful to consider what guidance exists for lawyers when they encounter inept or impaired experts. That is, the relative ease with which these circumstances can be addressed through dismissal of the experts could inform the decision to take action.
Suggest Treatment Options or Strategies
Open a respectful and nonconfrontational dialogue with the impaired attorney. Express one’s observations, concerns, and the potential impact on the evaluation process. Provide information and resources for the impaired attorney to seek professional treatment and support services. Highlight the potential benefits of addressing the impairment for both personal well being and professional competence. This option is in line with the Ethical Principles of Psychologists and Code of Conduct principle of “Respect for People’s Rights and Dignity,” which, among other suggestions, encourages psychologists to respect an individual’s right to self-determination when considering whether and how to address that person’s impairment.10
One might reasonably question whether this step might have been fruitful for the visibly depressed attorney described in the first case example. An ongoing movement within the legal community seeks to bring awareness to attorney mental health and substance use problems and increase access to essential treatment services. This movement is especially relevant when attorneys are found to have conditions that impair them from competently fulfilling their obligations to clients.7 All jurisdictions have statewide Lawyer Assistance Programs17 that aim to facilitate awareness, recognition, and treatment of problems that impair attorney competence (see Wexler18 for a brief discussion of these programs). What stands out from the above discussion is that the mental health and legal professions have separately devised means for dealing with their own impaired practitioners. The challenge of our present topic is that it is cross-disciplinary and complex, although we contend that intradisciplinary solutions may well apply to interdisciplinary problems as well.
Speak with the Attorney’s Supervisor
Criminal practice often occurs within public sector settings, whereas civil practice is more commonly carried out in the private sector, frequently within large firms. In both contexts, attorneys typically work within some form of supervisory structure. Consulting with an appropriate supervisor can therefore play an important role in identifying and responding to potential impairment and may offer a practical avenue for addressing concerns, particularly when the concern is not already widely recognized.
Adhere to Role Boundaries and Say Nothing
In these cases, the FMHPs simply do their jobs, conduct the best assessments they can, and proceed without any stated judgment about attorney impairment. One could responsibly and supportably conclude that, like the outcome of the case itself, it is not our business.
Withdraw from the Case
If the impairment significantly compromises the FMHP’s ability to conduct a fair and accurate evaluation, consider withdrawing from the case. Withdrawing from the case is a strong contender among the available solutions. This could occur in many cases after raising problems directly and in a stepwise fashion with counsel, similar to what the American Psychological Association recommends concerning impaired psychologists, as this article has already contemplated.
Contextual Considerations in Responding
The range of responses to potential attorney impairment available to a forensic mental health professional is not applied in a vacuum. In practice, decisions about how, when, or whether to respond to a potentially impaired attorney are shaped by the surrounding circumstances. These contextual factors do not change the underlying ethics principles, but they often influence how those principles are applied in real time.
Timing Within the Litigation Process
When concerns arise early, during referral or initial retention, the situation is usually easier to manage. The evaluator may have the option to decline the case or pause involvement until there is greater clarity. Matters become more complicated when concerns emerge later, particularly on the eve of trial or after proceedings have begun. At that point, withdrawing or taking corrective action may create its own set of problems, including delays, prejudice to the examinee, or disruption of the court process. In those situations, the evaluator is often weighing imperfect options, balancing the risks associated with the attorney’s functioning against the potential harm caused by intervening too abruptly.
Practice Context and Available Oversight
The setting in which the attorney practices can also matter. Lawyers working within larger organizations, such as firms or public defender offices, are typically embedded in systems that allow for some degree of internal oversight. In those environments, raising a concern discreetly with a supervising attorney may be both feasible and appropriate. That option is often unavailable with solo practitioners, who may not have any built-in checks on their performance. Although this does not create new obligations for the evaluator, it can affect how meaningful or consequential their observations may be in practice.
Nature of the Case and Likely Course
Not all cases carry the same stakes or demands. If the evaluator’s role is limited to producing a report that will likely inform settlement discussions, the potential consequences of impaired counsel may be relatively contained. By contrast, cases that hinge on live testimony, particularly those requiring skilled examination of witnesses, present a different set of risks. The same is true for matters involving significant liberty interests, such as criminal proceedings, where the margin for error is much smaller. Although ethics duties remain constant, the likely impact of impaired representation can reasonably inform how urgently a response is considered.
Severity and Course of the Impairment
Impairment itself is not a fixed condition. It may be temporary and situational, longstanding but stable, or progressively worsening. An attorney who is struggling in the context of acute stress presents a different picture from one who appears to be experiencing cognitive decline or a serious psychiatric condition. In some cases, functioning may fluctuate across time or settings. Approaching the situation as dynamic rather than static helps avoid premature conclusions and allows room for more measured responses, such as monitoring or consultation. At the same time, patterns that suggest deterioration or escalating dysfunction may call for more decisive action.
Impact on the Evaluator’s Work
Perhaps the most practical question is whether the attorney’s functioning is affecting the evaluator’s own work. If the impairment interferes with the ability to gather reliable information, develop opinions, or present findings clearly, the evaluator’s professional responsibilities come into sharper focus. On the other hand, there are situations in which counsel’s behavior, although concerning, does not materially affect the integrity of the evaluation or its use. Framing the concern this way can help distinguish between situations that require action and those that are better addressed within the legal system itself.
Procedural Safeguards in Decision-Making
Although contextual factors may shape the ethics calculus, FMHPs benefit from a structured and disciplined decision-making process when confronted with suspected attorney impairment. A procedural framework helps guard against impulsive action, overreach, and bias.
Upon Identifying the Concern
When an attorney’s behavior raises questions about possible impairment, the FMHP should first articulate the specific observations prompting concern. Descriptions should focus on observable conduct, such as disorganization, memory lapses, incoherence, or emotional lability, rather than on inferred diagnoses.
Alternative explanations should be considered, including situational stress, fatigue, strategic advocacy choices, or misunderstandings. The inclusion of a null hypothesis, that the attorney is not impaired to a degree that compromises functioning, is essential to disciplined reasoning. FMHPs should remain mindful that their observations represent limited data, often drawn from brief professional interactions, and are therefore vulnerable to misinterpretation and bias. Consultation with trusted colleagues may be particularly valuable at this stage, both to test assumptions and to obtain perspective regarding proportionality of response.
When Determining a Course of Action
If concern persists, the FMHP should identify available options and evaluate them in light of the contextual modifiers previously discussed. The anticipated consequences of both action and inaction should be considered, including potential effects on the examinee, the integrity of the evaluation, and the administration of justice.
Timing is often critical. Immediate intervention may not always be prudent, particularly when observations are preliminary or ambiguous. Conversely, patterns suggesting escalating dysfunction may justify more decisive action. FMHPs should strive for proportionality, selecting the least intrusive response consistent with protecting professional integrity and foreseeable interests at stake. FMHPs should also anticipate that even respectful feedback may provoke defensiveness or strain the professional relationship and should prepare accordingly.
After Acting, or Choosing Not to Act
Following any decision, whether to intervene or to refrain, the FMHP should evaluate the outcome and remain attentive to evolving circumstances. Attorney functioning may fluctuate, and reassessment may become necessary.
Documentation warrants careful consideration. If documentation is undertaken, it should occur in the evaluator’s private file rather than in the forensic report, unless directly responsive to the referral question. Observations, the reasoning process, consultation obtained, and the rationale for the chosen course of action should be recorded contemporaneously. Such documentation may be important in the event of later inquiry or ethics review.
Inadvisable Options
Two inadvisable options also warrant a brief discussion here, as they may seem somewhat reasonable at first glance but are likely to cause considerable problems within an evaluative and legal context. First, it is not advisable for experts to say something to examinees concerning their observations of an attorney’s impairment. Although tempting as this option is, to seek to protect the examinee from the fumbling of the impaired attorneys, it is a high risk, boundary-crossing intervention that has strong likelihood of rebounding badly on the FMHP in the form of liability. We advise against even suggesting that examinees obtain a copy of their file or mentioning postconviction relief in the context of discussing the competence of the attorney. However well intentioned, such disclosures would shift the evaluator from neutral expert to de facto advocate, a role the FMHP has neither been retained nor ethically authorized to assume. The recurring notion of some sort of obligation being owed to the attorney’s client that extends beyond FMHPs’ competent performance strains awkwardly against the notion of not being the examinee’s doctor.
Second, one might be tempted to include information about the attorney’s functioning within the evaluation report, particularly in a context in which the attorney’s behaviors may have some distal relevance to the referral question (e.g., in a competence to stand trial evaluation in which the evaluator opines about a defendant’s ability to consult with counsel). We strongly advise against this, even if it is done in a matter-of-fact, non-blaming way, as this would be a reckless and irresponsible action. Rather, as noted previously, such observations belong in the evaluator’s private documentation and reflective process, not in the forensic report, where their inclusion would blur professional roles and undermine the integrity of the evaluation.
Conclusions
FMHPs operate within a complex web of professional responsibilities, balancing obligations to examinees, attorneys, courts, and the legal system. The presence of impaired attorneys in forensic contexts presents ethics and practical dilemmas, and encountering an impaired attorney in the course of one’s work as a FMHP may leave the evaluator uncertain or confused regarding appropriate action (or inaction). Although professional guidelines emphasize maintaining boundaries, they also highlight the importance of justice and competent legal representation. In the absence of formal guidance, FMHPs can utilize structured ethical decision-making to navigate these situations thoughtfully and responsibly. We have identified numerous steps that may be useful starting points for identifying attorney impairment and deciding how to navigate these cases, but additional professional commentary and empirical study regarding evaluator responses to attorney impairment remain sorely needed.
Little is known about how often FMHPs encounter impaired attorneys in the course of practice and how such situations are managed. Given the increasing recognition of mental health and cognitive challenges among attorneys, further empirical research is needed to clarify FMHPs’ roles and best practices. The ultimate goal of such a study would be to inform the development of practical guidelines to aid FMHPs in their decision-making when encountering a situation in which attorney impairment is suspected or observed. Examples of needed data include base rate findings of encounters with impaired attorneys, specific steps taken to address the situation, outcomes of the situation, and reflections on this experience.
Footnotes
Disclosures of financial or other potential conflicts of interest: None.
- © 2026 American Academy of Psychiatry and the Law
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