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The Impaired Lawyer

Once a drunk, always a drunk.  How many times have we heard colleagues say this about another lawyer after his or her latest escapade, brush with the law, or embarrassing scene at an office party?  Unfortunately, in many segments of society, including the law, this belief is stated as a fact, despite evidence compiled over the past seven decades that recovery from alcoholism and drug addiction, as well as psychological disorders, is possible.

This article will provide a detailed description of the ABA Commission on Lawyer Assistance programs (CoLap).  First, however, we should review some of the attitudes, behaviors, and preconceptions of addiction held by lawyers and judges.  To begin with, the legal profession clearly qualifies as a high-stress occupation.  Beginning in law school, the lawyer is taught that he or she is a problem solver whose opinion is sought and valued not only by clients but also by the greater public as well.  Lawyers are regarded as learned individuals who possess knowledge in nonlegal as well as legal matters.  Lawyers have historically comprised the majority of federal and state legislators, and are consistently elected by the general public as individuals well qualified to analyze and decide the important political, economic, and financial problems of the day.

The medical field has long recognized that the use of drugs, including alcohol, increases proportionally with the degree of stress and pressure in one’s life.  One study in particular, Drug-Impaired Professionals by R. H. Coombs (Harvard University Press, 1997), supports this conclusion.  Lawyers tend to take their role as problem solvers seriously and believe there is little they cannot handle by using effort and concentration.  Unfortunately, the use of alcohol and other drugs often becomes a primary relief mechanism to deal with the strain of constantly having to come up with the right answer to other people’s problems.  In many other instances, having a few drinks with one’s colleagues at the other bar’s is the acceptable and expected means of celebrating a victory or dulling the pain of a defeat that day.  Lawyers training leads them to believe that no problem is insurmountable, that no challenge cannot be overcome by the use of one’s keen legal intellect and training: taking a few drinks, doing a little cocaine, or taking a few pills only enhances this belief.

Unfortunately, this intellectual thought process represents the greatest impediment to a lawyer’s recovery from chemical dependency.  Trying to think one’s way out of addiction is an ineffective and unrealistic method for coping with the illness.  The disease model of alcoholism was first proposed by Alcoholics Anonymous in 1939 and has been accepted by the American medical Association since 1953.  This model of addiction recognizes that the compulsive use of mood-altering chemicals is not a question of morality, weakness of character, or lack of willpower.  In recent years, medical studies have confirmed that the prevailing characteristic of addiction is biochemical, that is, that measurable differences in the action of neurotransmitters can be found in the brains of addicts as opposed to nonaddicts.  (See Review of Neurotransmitters and Their Role in Alcoholism Treatments by C. K. Erickson in Alcohol & Alcoholism 31 [Suppl.1], 1996, at 5-11.)  These biochemical differences appear to be genetic, although the onset and progression of the disease can be affected, positively or negatively, by environmental and psychological factors.  Addiction is characterized as chronic (an addict is never cured), progressive (the illness always gets worse if ignored), and invariably fatal if left untreated.  The symptoms and effects of the illness are well documented and recognizable to the trained professional, but the progression of the illness can be arrested at any point with proper treatment and institution of a daily recovery program.

Faced with his or her own or another’s alcoholism or addiction, a lawyer’s initial reaction is almost always, “can handle it myself.”  Such an attitude is akin to saying, “can self-treat these pains I’m having in my chest.”  By training, lawyers become to a greater or lesser degree the creatures of their own image or persona.  How can they ask for help when they have been taught they are society’s problem solvers?  They tell themselves that they are the experts at everything, that no one could provide better counsel than they can themselves.  If unchecked, the end results of such impaired thinking and denial are medical, legal, and disciplinary problems, eventually leading to loss of one’s license, career, and life.

Looking at the psychological side, advances in psychiatry have determine that many psychological conditions, including schizophrenia, depression, and bipolar disorder (manic depression), are not solely psychosocial manifestations or the result of childhood experience.  Instead, they are indications of imbalances in brain chemistry that can often be successfully treated with medication and therapy.  Other psychiatric conditions know as personality disorders (which include narcissistic, borderline, avoidant, and antisocial personality disorders) may not respond as well to medication, but may respond to therapy and behavior modification techniques.

A study by Johns Hopkins Medical School in 1990 found that of all professions surveyed, lawyers had the highest rate of clinical depression, a statistic that has probably not improved in the intervening years.  Suicide currently ranks as one of the leading causes of premature death in the legal profession.  It has been estimated that more than 190,000 ABA members have had or will have a substance abuse or psychiatric disorder sometime during their lifetime.  Of these, more than 40,000 will battle either situational or clinical depression during the next year.  Of those individuals diagnosed with the illness of chemical dependence, 50 percent may also have a problem with compulsive gambling, 30 percent with depression, and up to 60 percent with a compulsive sexual disorder.

Historical Perspective of the ABA Commission

Recognizing the problem of chemical dependency within the profession, and in order to provide a model for assisting lawyers whose practices had been impaired by addictions, the ABA created the Commission on Impaired Attorneys in 1988.  At the time of its creation, the ABA Board of Governors established these priorities for the commission:

1.      Education concerning lawyer addiction, depression, and mental health problems, and means of treatment.

2.      Development and maintenance of a national clearinghouse on lawyer assistance programs and the case law about addiction, depression, and mental health problems.

3.      Collection of state rules and opinions on confidentiality and immunity.

4.      Development of a national network of lawyer assistance programs.

5.      Development of models and guidelines for state and local lawyer assistance programs.

In August 1996, the commission changed its name to the Commission on Lawyer Assistance programs (CoLap) in order to better describe its expansion of services to include stress, depression, and other mental health problems and to avoid any stigma that its former name may have implied.  CoLap’s primary goal is to advance the legal community’s knowledge of impairments facing lawyers and its response to those issues.  The commission consists of 10 members, many of whom are themselves recovering from chemical dependency. Since its inception, the commission has been quite successful in aiding the introduction and support of programs at both the state and local bar level.  Whereas only four state bar programs existed in 1980, today all 50 states (as well as Canada and Great Britain) have developed lawyers assistance programs (LAPs) or committees focused on quality-of-life issues.  The LAPs employ the use of intervention, peer counseling, and referral to 12-Step programs to assist in the lawyer’s recovery process.

In 1999, the Commission implemented an initiative to educate and extend its services internally throughout the ABA, as well as its traditional external role of assisting state programs.  Such educational activities have included presentation to various ABA entities, including the Standing Committee on Substance Abuse, the Judicial Educators Conference, the Family Law, General Practice, and antitrust Sections, the Judicial Division, and the Commission on Women in the Profession.  GPSolo magazine has initiated a regular column, In the Solution, which is written by volunteer commission members.  Members of the Commission continue to receive invitations to speak to sections and divisions, most recently the Young Lawyers Division during the recent meeting in San Diego, the Senior Lawyers Division, and the Individual Rights and Responsibility Section.

In the fall of each year, the Commission holds a workshop where representatives meet to exchange information concerning their respective programs.  The workshop consistently includes representatives from the state programs, as well as LAPs from Canada, Great Britain, Mexico, and other countries.  The meeting is followed by the three-day annual meeting of International lawyers in AA (ILAA), which is attended by recovering lawyers from all over the world.  CoLAP has an extensive Internet presence (www.abanet.org/legalservices/colap), providing a listing of lawyer assistance programs around the country, recovery-related resources, news articles, and annual workshop information.

A Solution to the Problem:  Lawyer Assistance Programs

Estimates of the number of lawyers affected by substance abuse, psychological disorders, or other impairments vary greatly, from a low of 15 percent to a high of 50 percent (in a 1996 Washington Lawyer Assistance program study).  One of the primary purposes of any peer assistance program is the early identification of impaired individuals.  Unfortunately, very often in the practice of law the first signs of trouble come through the disciplinary system.  At early stages of the illness, typical complaints include allegations that a lawyer has failed to respond to calls from clients, has not kept his or her clients properly informed about the status of the file or case, or has been arrested for DUI.  Due to the impaired lawyer’s denial regarding the root of such complains, often combined with a disciplinary committee’s lack of understanding about chemical dependency or mental health disorders (together with some skillful, although perhaps misguided, advocacy on behalf of the respondent), the majority of such minor grievances result in a “no probable cause” finding.  If the disease is not caught at this point, it is almost certain that the lawyer will be back before the disciplinary committee on increasingly graver charges, such as appearing at client meetings or court hearings under the influence, failing to appear at all, missing deadlines and statute of limitations dates, acting in a bizarre manner, abandoning his or her practice, further DUI or controlled substance arrests, or trust account violations. A 1992 Illinois Lawyers Concerned for Lawyers study documented that between 50 percent and 80 percent of all cases appearing before disciplinary committees, including minor matters, have as their cause some form of chemical or psychological impairment.

In cases where a substance abuse or psychological impairment is suspected, state lawyer assistance programs uniformly urge their disciplinary committees to refer the subject lawyer to the LAP for an evaluation, which the committee can facilitate if the rules encompass a procedure for diversion.  (See, for example, Rule 3-5.3, Rules Regulating the Florida Bar.)  If chemical dependency or some other identifiable impairment is found after the assessment and evaluation process, the lawyer is often requested to enter into a written rehabilitation contract with the LAP, which may include such provisions as attendance at 12-Step (AA or NA) or lawyer support meetings, periodic meetings with a lawyer monitor, random urinalysis, or group or individual therapy if warranted.  CoLAP has developed model LAP guidelines for states to use when implementing or expanding these functions.

The lawyer support meetings are vital parts of any LAP, made possible through the efforts and devotion of the LAP volunteers throughout the state.  The groups, which are completely confidential, normally meet on a weekly basis, and place particular emphasis on voicing those concerns arising out of the participants’ practice of law, admissions process, or disciplinary problems, so that other members of the group with experience in such areas can share how they made it through such stressful situations.

The advantage of the LAP to chemically dependent lawyers, in addition to providing a peer support system uniquely designed of for the legal community, is providing highly credible documentary evidence of the lawyer’s ongoing recovery efforts and successes.  Many states have adopted the ABA Standards for Imposing Lawyer Sanctions, which state that ongoing, supervised rehabilitation will be considered as mitigation when determining sanctions to be imposed.  (See, for example, Florida Standards for Imposing Lawyer Sanctions 10 and 11.)

In addition, most LAPs also perform intervention services, provided the circumstances meet certain criteria.  Intervention is a means by which the lawyer can be confronted, with the hope of dismantling the denial system and allowing the impaired lawyer to acknowledge he or she needs help.  (For more on this topic, see also Johnson, V.E., intervention: How to Help Someone Who Doesn’t Want Help, 1986, Johnson Institute Books, Minneapolis, MN.)

A family member, colleague, judge, or close friend who is aware of the addiction usually makes initial contact with the LAP.  A LAP staff member will assemble an intervention group of people who have personal knowledge of the illness effect on the subject lawyer.  The ultimate goal is to have the lawyer agree to go directly from the intervention into an appropriate treatment program.  Interventions, if performed carefully and out of a sense of caring rather than accusation, have an extremely high rate of success.

Conclusion

Although not every judge, lawyer, or law student who takes a drink, uses a drug, or has a depressive episode can be considered to be impaired, continuing the behavior despite increasingly severe consequences can generally be regarded as evidence of an illness.

The good news is that these problems have been recognized, the organized bar is involved, and measures can be taken that are often successful in restoring lawyers to health, saving their license, salvaging their families, and protecting their clients.  The ABA Commission on Lawyer Assistance Programs has been instrumental in providing help to already functioning state lawyer assistance programs, to state bars wishing to create such programs, and to ABA entities wishing to educate and help their members.

Bar association programs, including lawyer assistance, law office management, and quality-of-life committees, have carried a message of recovery, education, and prevention to lawyers in their jurisdictions.  In follow-up studies performed for peer assistance programs, it was determined that over 85 percent of participants who successfully completed their contracts remained chemically free, and most were successfully practicing.  Clearly, the reduction in harm and suffering to the impaired individuals, their families, and the public as a result of these professionals’ participation is immeasurable.  As has been said by one member of the Florida Board of Governors, lawyer assistance programs are the only bar-funded programs that work directly to save lawyers’ lives.

by Myer J. Cohen

Reprinted by permission of the author and the American Bar Association.  This article was originally published in Experience, Volume 12, No. 2, Winter 2002 and copyright © 2002 American Bar Association.

North Carolina is one of the four states cited in this article to have had a lawyer assistance program before the ABA Commission on Lawyer Assistance Programs (CoLAP) was established in 1988.  Since the founding of CoLAP, the North Carolina Lawyer Assistance Program (earlier known as just the PALS Program) has participated in every annual workshop of the ABA Commission on Lawyer Assistance Programs. 

The North Carolina Lawyer Assistance Program is a confidential program of assistance for all North Carolina lawyers.  The Lawyer Assistance Program has two outreaches: PALS and FRIENDS.  PALS addresses alcoholism and other addictions:  FRIENDS depression and other mental health problems.

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