General Practice, Solo & Small Firm DivisionMagazine
Volume 15, Number 3
A Difficult Journey:
Acquiring a Disability After Starting Practice
BY DAVID AROCHO
"I was scared to death," says Judge Paul Egly, recalling the time, 16 years ago, when he learned that he was losing his sight as a result of macular degeneration. At 62, he had just retired from the bench and was looking forward to devoting his energies full-time to what he loved best—teaching law at the school that he had helped to found, La Verne University College of Law, in La Verne, California. Unable to drive or read, he didn’t see how he was going to do it.
"Fear is the greatest enemy," he tells me now.
"How did you manage?" I ask.
"I was stubborn! I didn’t know when to give up. Taking stock of things, I asked myself: what’s your greatest asset? It can’t be my eyes. It’s my brain. I have always had a phenomenal memory. I knew the case law by heart." So he turned his energies to finding ways of accomplishing his job without the eyesight he had enjoyed all his life. He got a driver and a reader/secretary, and went right on with the work he loved so well. Even today, at 78, he goes on teaching and sharing his insights with his students. It was through one of his students, in fact, that I got to interview the judge. That inner strength that he shares so freely with others is what got him through the hump.
"How did your colleagues react to your disability?" I asked.
"At first, they forgot that I knew anything." There was sympathy, of course, but they did not see him as an equal any more. He had to show them that he still was, and he first had to convince himself. Once he got over that hurdle, the others came around.
Judge Egly is a remarkable human being, but his situation is not in the least remarkable. Disability is a fact of life, and the longer you live the more likely you are to acquire a disability. Lawyers are no exception to this rule. If anything, they are more susceptible to some disabilities, such as emotional illness and stress-related physical disorders.
Living with a Disability
According to the 1992 National Health Interview Survey (a project of the Institute for Health and Aging of the University of California, San Francisco), 11.6 percent of the population aged 18 to 69, or 19 million people, report some degree of limitation in working at a job or business due to chronic health conditions. Back disorders rank as the most frequent cause of work disability (16.4 percent), followed by heart disease (13.1 percent), arthritis (8.1 percent), diabetes (4.6 percent), and orthopedic impairments of lower extremities (4.5 percent). According to the Social Security Administration, a working person has a three in ten chance of acquiring a disability during her career.
These facts may be sobering, but for most lawyers, caught up in the day-to-day exigencies of their practices, contemplating serious illness or disability is not on the calendar. When it happens, it comes as a devastating shock. All of a sudden, their competence, their livelihood—their personal as well as their professional identities—are threatened. Perhaps learning that there are lawyers out there who have gone through the same kind of upheaval and yet found the strength to return to practice will help us get a better understanding of what it means to live and work with a disability. In this article, I bring you the stories of men and women who had to cope with the onset of disability after they were settled in their practice.
An Invisible Disability
Unlike Judge Egly, who had to deal with a physical disability with which most of us are familiar, Janice Murray (not her real name) suddenly had to face an invisible enemy. She had experienced some bouts of depression while going through law school. But she had managed, and after passing the bar, went to work for the local public defender’s office. About a year later, things started to fall apart. She did not know what was happening, but she felt like she was on a roller coaster—now frantically euphoric and soon after desperately sad and depressed. Her work started to suffer, and she resented knowing it and being told about it. She did not want to go for help. Then she began to hear voices. Late one night, the voices told her to go see a judge before whom she had argued a case. This incident resulted in her being committed for psychiatric treatment. At last, she was diagnosed with bipolar disorder, a condition caused by chemical imbalances in the brain that is thought to be hereditary.
With medication and counseling, Janice was able to regain a hold on reality. She recovered from her breakdown and started to think about returning to practice. This was no simple matter, however. Her erratic behavior, caused by her disability, had brought about the suspension of her license to practice law. She had to meet rigorous standards to get it back. She was reinstated without restrictions three years after her breakdown. But the town where she had practiced was small, and the lawyers and the judges all knew about Janice’s history of mental illness. They did not want to let her forget about it. So, she relocated and learned a new area of practice. Gradually, she regained her confidence and developed a client base. Even so, she is nagged by the fear that her colleagues and clients will find out about what happened six years ago. She is sure that they would lose confidence in her and that her career would once again be on the slide. Her fears are not groundless.
James W.’s story is a case in point. He was a very successful government lawyer with more than 20 years of experience. He was the first to notice that his work was not up to par. He felt depressed, listless, overworked. So he took a long vacation to see if that would help. It didn’t. Eventually he sought professional help. He was told he was suffering for depression and was put on antidepressant medication. Returning to work, he found little sympathy from his supervisor, who perceived him as suddenly turned lazy, malingering, and uncooperative. Things went from bad to worse in a few months—he was reassigned and then demoted. He went on medical leave, was diagnosed as bipolar, and was placed on a new medical regimen. He had also found a very supportive therapist. Things started to look brighter.
When James went back to work, however, the harassment and isolation set him back in a tailspin. As a result, he suffered a total breakdown. He lost his job and was placed on disability status. The last two years have been a nightmare: the medications have not worked very well, his family support is eroding, and he finds himself trying to prosecute an anti-discrimination case against his government employer. Things could be very different, he says, if his employer had only made some accommodation for his disability. "Once they know you have a mental illness, they want to get rid of you. The employer holds all the cards. Soon you see the unfavorable evaluations and the disciplinary memos. You are isolated from your colleagues and eventually forced out. And all the time you are trying to deal with the effects of your mental illness."
What Are the Options?
Pursuing legal remedies is an expensive and frustrating exercise. Even if you prevail, there is no guarantee that you will recover attorney fees, much less any damages. In fact, your chances of succeeding are only one in ten. According to the ABA Commission on Mental and Physical Disability Law, employers win 90 percent of suits brought against them under the Americans with Disabilities Act. "Legal action is only a last resort," says Janice. "I would be very afraid of retaliation."
Access to career opportunities in the legal profession for persons with disabilities has been very limited. A number of state and local bar associations have tried to address this concern. In a 1992 California Bar survey, 6 percent of the membership self-identified as having a disability. The vast majority of these were solo practitioners or government attorneys. Among lawyers working for private law firms, only 1 percent identified themselves as having a disability. A Texas Bar survey produced similar findings. "[W]hile the legal community as a whole supported the concept of equal opportunity for minority law students and lawyers, achievement of this goal for students and lawyers with disabilities was seen as fraught with possible insurmountable problems," writes Kathi Pugh in Lawyer Hiring and Training Report (November 1994). "Things haven’t changed any, I’m afraid," she said when I reached her for comment recently. Her advice to lawyers with disabilities—whether recently acquired or otherwise: "Find yourself a special niche, something you can do well and few others can match."
Ronald H. Skubecz, Pennsylvania Senior Attorney General, echoes this advice. "Tailor your ambitions to your abilities," he says. "Scale back that ‘sky is the limit’ mentality with which you left law school. Find something you can do comfortably and you’ll see the benefits." When he was facing the onset of multiple sclerosis in 1985, he seriously doubted whether he would have the stamina to go on with his tax litigation work. He sought, and obtained, a position in the tax litigation department that allowed him greater control over his work hours and a more predictable court schedule. "The department has been wonderfully accommodating," he told me. "The support I get from my colleagues and staff here is phenomenal." Now that he needs a wheelchair to get around, however, he is amazed to see how many facilities are still virtually inaccessible. It’s not just hotels and restaurants that he can’t enter—many courthouses where he must appear still do not meet ADA standards. "When you go to an unfamiliar location, you always have this anxiety about whether you are going to be able to sit at the counsel table, use the rest room, and so on. Also, it rankles to see how many places get away with minimal compliance, which doesn’t make them really accessible."
For some, the option of returning to their previous practice is not really feasible. Kenneth E. North was riding the wave of a successful career as a private litigation attorney. He had left a mid-sized law firm to start his own small six-lawyer firm and it was really flourishing. When he was not spending 16 to 20 hours in the office, he was out running his five miles a day. In the midst of negotiations for a merger with a well-known multistate law firm, he was felled by a defective aortic valve, a legacy of childhood rheumatic fever. One moment he was planning an ambitious merger and the next he was undergoing open heart surgery. It was a devastating shock. All of a sudden he was contemplating a long recovery and an uncertain future.
"For the first two weeks, everyone was very sympathetic, sending flowers and get-well cards." This did not last long, though. "I remember that, three weeks after, a judge was threatening me with discipline for not appearing before him at the very time I was going under the knife." More disconcerting was the distancing that he felt from his colleagues. "Maybe my plight reminded them too much of their own mortality," he reflects, "but I think economic factors played a greater part."
Ken spent several months at a rehabilitation center, where he found a wonderful support network. Then he spent more months recovering much of the functionality he had lost. In these months he had plenty of time to reflect on what was really important. With the help of his wife and children, he pulled through that difficult time. There were a number of complications with the surgery that will require him to remain on medication for the rest of his life. Even so, he suffers from frequent fatigue. Nonetheless, he tried to go back to his old practice. He had to scale back and eventually give it up, though. He did not have the same body, and adjusting to his new limitations was not easy. He found a part-time teaching position and turned his attention to another kind of law that had always fascinated him—canon law. The computer was a real godsend for him, he told me. Without expending a lot of physical energy, he can explore the subject and share his knowledge with the rest of the community. You can see the fruits of his labors at www.canonlaw.org.
Lawyers don’t always choose the high-stress careers we have been discussing. Art Blazer chose to go into university teaching after leaving law school. He was happily toiling at his professorial chores at age 39 when he suffered a stroke. That was in May 1993. It was 1995 before he was able to return to the classroom. He found resistance not only from school administrators but also from students. "I use augmentative communication—a computer with speakers and software that speaks for me the information I want to convey," he explains. Initially, students dropped out of his courses. The enrollment went really down. It required passing a number of resolutions by the faculty, all of which were approved unanimously, to restore him to a full-time position. "Some bothersome things were said to others, but not to me." Some administrators voiced the concern that he would hurt himself. "A series of battles were fought over auxiliary aids and office space—all of which I eventually won. It helped a lot that I was a lawyer and that the law was on my side."
He team-taught one of the courses with a nondisabled faculty member. "It especially bothered me," he says, "that he seemed to be perceived as the ‘real’ faculty member who was letting me join him as an act of charity." Over the next two years, though, this perception gradually changed. Even today, however, some still question whether he can really manage his job. Such irrational skeptics never cease to amaze those of us who work with a disability.
These true stories, I believe, provide a realistic picture of what it means to acquire a disability and how different people cope with the situation. It is a complex picture, not easily summarized. By no means uniformly bleak, as is the popular misconception, neither is it rosy. As Mark C. Weber of DePaul University College of Law states, we must recognize "that disability is a natural state, that the model human being does not exist, and that disability occurs as much because of absence of adaptation as anything else." It is in the interest of lawyers and nonlawyers, with and without disabilities, to facilitate those adaptations that will allow for the fullest degree of participation by every member of society in the life of our community.
David Arocho is currently a senior staff attorney with the ABA Commission on Mental and Physical Disability Law and serves as staff liaison to the Commission’s Subcommittee on Lawyers with Disabilities. He has more than 25 years of experience in the disability rights field. He was formerly director of the New York State Assembly Task Force on People with Disabilities.