GPSOLO October/November 2009
Lawyer Seeks Treatment, Boss Seeks Assurance
For one recovering professional, the time to get help and get sober became apparent to his employer when he came to work drunk. Thinking he had enough time between lunch and an evening working late with colleagues, the employee had lost track of his alcohol consumption. It was quite apparent to everyone that he was in no condition to work. The employer already had in place a mandated plan for chemically dependent employees involving treatment, aftercare, and ongoing support programs. If the employee completes the plan, his chances of recovery and remaining sober for at least two years are very high—about 92 percent to 95 percent—because he is an airline pilot.
Unfortunately, for lawyers who are chemically addicted or mentally impaired, the story is often much different. The problem is frequently ignored. Whereas the Federal Aviation Administration (FAA) and employers in the airline industry have created a mandated recovery process—after recognizing that 8 percent of all pilots are likely to develop chemical addiction—there is no such industry-wide standard for getting lawyers into recovery and back with their clients.
It’s not as though help for recovering lawyers is not available. In fact, a lawyer assistance program (LAP) or committee exists today in every state; 25 years ago only 15 states had programs for lawyers who abuse drugs and alcohol. LAPs have an impressive array of resources to provide services and support to lawyers and law students in need, backed by an army of recovering lawyers and counselors sympathetic to the stresses and difficulties of trying to make it in the legal profession.
But as the employer of an addicted or chemically dependent lawyer, what are you to do? Is it your job to help the employee recognize that he or she has a substance abuse problem? How long will it take for the lawyer to successfully recognize and deal with the difficult problem and ultimately graduate through treatment? And most importantly, how do you know when your recovering lawyer is ready to start seeing clients again? The questions are abundant, but in the legal profession, the answers can be murky.
A Uniquely Troubled Group?
Since drug and alcohol counseling centers and the legal profession began recording statistics on chemically addicted and impaired professionals, the data involving lawyers has been off the charts. The American Bar Association Commission on Impaired Attorneys shocked the profession in 1991 when it estimated that 18 percent to 20 percent of the nation’s lawyers abuse alcohol and/or drugs. By comparison, the estimated rate of chemical abuse in the general population, including persons in other highly stressful professions such as physicians and pilots, is much lower: 8 percent to 10 percent.
Illicit drug use is prominent in the legal profession. In 1990 the International Journal of Law and Psychiatry published a study on the prevalence of drug abuse in the legal profession and found that 26 percent of lawyers had used cocaine at least once, a rate more than twice that of the general population.
Depression among lawyers dwarfs that of all other professions. Research shows 33 percent of lawyers suffer from mental health issues, and 19 percent of the lawyers studied suffered from significant levels of depression—more than twice the national average. In all, lawyers are 3.6 times more likely to suffer from depression than all other professions, according to a 1990 Johns Hopkins Medical School study.
Saddest of all, the legal profession claims the highest rate of suicide among all occupations. A study conducted by the National Institute for Occupational Safety and Health found that, compared with men of the same age in other occupations, male lawyers between 20 and 64 years old are more than twice as likely to die from suicide. A Canadian bar study found that suicide was the third leading cause of death among lawyers studied—behind cancer and heart failure—leading to about 69 deaths per 100,000 individuals, nearly six times the suicide rate in the general population. Those most at risk were lawyers and judges aged 48 to 65.
Added to the likelihood that someone you work with in the legal profession is suffering from some sort of debilitating chemical or mental impairment are barriers that uniquely hinder success rates for lawyers in counseling and treatment programs. It may be no surprise that recovery professionals view a lawyer’s tendency toward debate and verbal challenges as a significant obstacle to overcoming addiction.
“Lawyers are treatment resistant,” says William Messinger, a lawyer and the president of Aureus, Inc., a St. Paul, Minnesota, company that assists legal professionals and their employers with recovery and relapse prevention strategies. “Lawyers ask a lot of questions and are not self-revealing,” says Messinger. Such attributes are generally seen by treatment counselors as uncooperative behavior and can delay effective recovery for the lawyer.
Messinger’s views are backed up by a 2004 study commissioned by Cottonwood de Tucson, a behavioral health treatment center in Tucson, Arizona. The study, in which 460 LAP professionals and recovering lawyers from across the nation were interviewed, identified several obstacles for lawyers accessing treatment. Among the findings:
- The primary obstacle preventing legal professionals from accessing care was the belief that they could handle their problem on their own, owing to their strong sense of self-reliance.
- A significant obstacle to seeking treatment was a concern over the potentially negative impact the decision might have on their professional reputation among peers, judges, and potential clients.
- Once in a treatment program, lawyers rely on intellectualization as a defense mechanism and are shut off from emotional life.
- Those offering services to lawyers for behavioral health problems frequently underestimate or misunderstand lawyers’ sophisticated level of denial and highly developed sense of being right.
“The lawyer will absolutely swear they are not drinking,” says Messinger. “Meanwhile, their friend in the firm will report back that the lawyer is abusing. The friend knows about it because they are usually right there abusing with them.”
Messinger also points out that firm culture often serves as a barrier preventing the chemically dependent lawyer from getting effective treatment. “The whole [recovery] process is counter-intuitive to the legal profession,” says Messinger. “In a law firm, showing support often means covering up for the lawyer instead of letting him or her fail so the problem can be identified.”
Law firms may hesitate to approach the troubled lawyer about an addiction problem out of a deep understanding of the stresses and anxiety that the practice of law brings, as well as the shame and stigma that their colleagues face when seeking help. Worse yet, some firms with knowledge of a lawyer’s past addictive behavior and sudden relapse may avoid intervening on behalf of the lawyer if they feel the timing of the event would pose economic concerns for the firm, such as the delay of a matter set for trial.
“Law firms are not good at dealing with disruptions,” says Messinger. “That would never happen in the medical profession. It astounds me that a firm would tolerate that behavior.”
For firms that do intervene, the path to healing is often unclear. Even if they succeed in getting the impaired lawyer the professional guidance needed for recovery, law firms struggle with their own questions about doing the right thing for both their colleague and their clients. The duties and ethical obligations a firm owes to its clients are paramount and must be kept in mind when seeking help for the impaired lawyer.
Successful Models: Physicians and Pilots
Although the prevalence of substance and use disorders for physicians is similar to that of the general population, physicians have their own special risk factors that would ordinarily hinder successful treatment. Easy access to controlled substances and spending long hours in a highly stressful working environment create difficult conditions for addicted medical professionals and can be significant obstacles to recovery. Also, physicians entering addiction treatment report high rates of problem complexity such as family histories of addiction, multiple drug choices, and co-occurring medical/psychiatric conditions. Despite these risk factors, the documented long-term recovery rates for physicians are very high—70 percent to 96 percent, according to three studies between 1987 and 2005.
Airline pilots who go through an extensive rehabilitation process have even higher recovery rates-—between 92 percent and 95 percent, according to a 1998 report published in the Hazelden Voice. And airline pilots can return to work relatively soon—often within four to six months of finishing primary treatment.
Such high recovery rates for airline pilots weren’t always the case, however. Before 1975, evidence of alcohol or drug dependence automatically ended a flying career. FAA rules mandated that a diagnosis of alcohol dependence meant a permanent loss of the pilot’s airman certificate. Pilots therefore had an even greater incentive than most to deny they suffered from an addiction, and their peers were equally reluctant to express concerns about coworkers’ alcohol consumption owing to the dire consequences.
Recovery experts attribute to similar factors the success of pilots and physicians returning back to work healthy and in recovery from addiction and depression. After these professionals have been identified and evaluated for chemical dependency, they undergo primary treatment for chemical addiction and also participate in long-term aftercare programming that includes continuing support and monitoring.
For pilots, the process can be rigorous. From the start, the pilot is assigned to an independent medical sponsor who oversees every step of the recovery process, including communicating with the FAA, which has the ultimate responsibility to determine if the pilot can return to flying. By all accounts, intensive aftercare is the key. Aftercare can take several different forms and is ongoing for at least two years. It can include staying at a halfway house, participating in aftercare groups, intensive involvement in Alcoholics Anonymous, and reporting to a peer monitor and company monitor. The likelihood of successful recovery from chemical dependency is further strengthen by relapse prevention education and personal growth counseling that extends beyond the normal six-month continuing care program that most professionals in other fields go through.
Even after returning pilots are certified to fly, they must participate in drug and alcohol screening for a minimum of two years. Ongoing drug and alcohol screening is a condition of their return to work. Pilots who relapse can be certified again on successful completion of additional treatment and after demonstrating that the factors that had led to the relapse have been dealt with adequately.
Post-treatment continuing care is a key factor in developing the high recovery rates seen in both physicians and pilots. But another very important element that leads to their successful treatment and recovery is that physicians and pilots are highly motivated to seek help in order to keep their jobs. For individuals in these careers, loss of license, whether it be by the FAA or a local medical licensing board, means loss of the status related to their profession, as well as the loss of their identity, income, and social standing. Even to the most hardened alcoholics and drug abusers, loss of income means they simply won’t be able to afford their abusive habit any longer and it’s time to get some help.
Help for Lawyers (and Their Employers)
One of the most grueling tasks a managing law partner may undergo is to identify alcoholic or chemically dependent lawyers in the firm and to confront them with their addictive behavior. It is likely that troubled attorneys will deny they have a problem, further compounding the difficulty of the situation and eroding the trust and goodwill of the employer. What’s worse is that, especially in a small firm, there is almost always no precedent in the matter, and without guidelines or resources, the employer is usually left wondering, “What’s the right thing to do?”
The three components to a successful strategy of getting a healthy, recovering lawyer back to work are: (1) dealing with the issue head-on with the purpose of helping troubled lawyers accept that they have a problem they cannot deal with on their own; (2) primary treatment for ridding the lawyer of the alcohol and drugs that are in the body’s system and are the paramount cause of the lawyer’s life-disrupting behaviors; and (3) intense after-care programming designed to identify the underlying issues in the lawyer’s life that led to the addiction and the troubling behavior. There is a direct correlation between the length of time in aftercare programming—with ongoing monitoring and support to help lawyers stay in touch with the systems and tools that got them on the right path—and the lawyers’ chances of a full recovery with no relapses.
Additionally, there are some practical matters that behavioral health professionals point out are necessary to initiate the recovery effort and to keep the healthy lawyer from abusing again. As with physicians and pilots, addicted lawyers are highly motivated to participate in a treatment program if their refusal might mean losing their job. In fact, the majority of successful interventions involving legal professionals occur with participation of the addicted lawyer’s colleagues and coworkers. Such participation is necessary because, at the point where legal professionals are being asked to acknowledge their problem and get help through treatment, they need to know their job is at stake.
Last-chance agreements between the employer and the addicted employee can be a constructive part of recovery by outlining the employee’s recovery responsibilities and providing the return-to-work motivation the lawyer often needs. The treatment and return-to-work agreements typically require lawyers to formally acknowledge that their work performance and/or behavior have provided a basis for termination of employment, and in order to avoid termination, the lawyer voluntarily agrees to seek an immediate evaluation and follow all recommendations of a health care professional. By authorizing within the agreement regular progress reports to be made to the firm during the course of treatment, the employer can talk to treatment counselors to obtain information about treatment compliance and get advice for the lawyer’s return to work.
The agreement also acknowledges that the employer will return the lawyer to work on completion of the recommended treatment program, with an understanding that the return to work is conditioned on the lawyer’s strict compliance with other follow-up aftercare recommendations. Such aftercare recommendations include complete abstention from all alcohol and mood-altering substances, frequent attendance at recommended 12-step programs, and regular testing for the presence or use of drugs or alcohol.
Seeking help for a troubled lawyer on staff may not always be a quiet, easy thing, but it is usually necessary to avoid a looming disaster for both the lawyer and the firm.
Theodore J. (Ted) Collins, of St. Paul, Minnesota, is of counsel to the firm of Collins, Buckley, Sauntry & Haugh, P.L.L.P., a firm he managed for more than 30 years. As a past supervising attorney, and in his role as board member for the nation’s longest continuously operated lawyer assistance program, Lawyers Concerned for Lawyers, Collins has seen a lot of employers making decisions about what to do with their alcoholic employees.
“Taking the person out for coffee and telling them that you’re worried about them is certainly okay,” says Collins. “There are things short of interventions.”
Collins worries about employers who find it hard to take that first step and talk to the lawyer suffering from the problem.
“If you aren’t going to do the right thing,” Collins cautions employers, “you should start thinking about the reasons why you didn’t because you are going to need them.”
Doing the right thing and getting help for the troubled lawyer is one big step toward avoiding malpractice. A 2002 study by the Oregon Attorney Assistance Program, a provider of malpractice insurance for lawyers in the state of Oregon, revealed that the claim frequency rate for lawyers suffering from chemical addiction dropped from 30 percent to 8 percent annually after they received treatment for chemical dependency. Getting help for treatment also means that underwriters who set professional liability policy premium rates will not penalize the lawyer for seeking treatment because statistically the recovered lawyer is seen as an average insurance risk compared to the general lawyer population.
For the employer who is willing to take the steps necessary to get help for the addicted attorney but would like some assistance, addiction recovery professionals such as Messinger are available to usher the firm through the process. Everything from advising firm managers and organizing the intervention to drafting and implementing the treatment and return-to-work agreement can be accomplished with the assistance of addiction recovery specialists.
“A big firm would typically have employee assistance programs in place,” says Collins. “Small firms have a duty to try and encourage healthy behavior and to act on it when they notice the changes.” And as Collins points out, noticing the addictive behavior and acting on it may come a lot sooner in a small firm environment where it is tougher for a lawyer to successfully hide the problem.
The old theory of waiting until the lawyer with the problem hits bottom is not often mentioned anymore as a strategic option.
“It takes tremendous courage,” says Collins. But by forcing the choice to get help, and having some expectations for the lawyer in recovery, the employer can save a life as well as a firm.