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American Bar Association - Defending Liberty, Pursuing Justice

SPRING 2011

Vol. 7, No. 3

 

PRACTICE MANAGEMENT

 

Lawyer Seeks Treatment, Boss Seeks Assurance

By Todd C. Scott      

Is your recovered employee ready to start seeing legal clients again?

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, he lost track of his alcohol consumption, and to everyone there, he was in no condition to work. His employer already had a plan for chemically dependent employees that involved treatment, aftercare, and ongoing support programs. If he successfully completes his employer’s mandated program, his chances of recovery and remaining sober for at least two years are very high, about 92 to 95 percent—because he is an airline pilot.

For chemically addicted or mentally impaired lawyers, the story is often much different. The problem is frequently ignored. And, whereas in the airline industry, the employer and the Federal Aviation Administration (FAA) have created a mandated recovery process (after recognizing the chances of a pilot slipping into chemical addiction as a statistically probably event for eight percent of their workforce), no such industrywide standard exists for getting lawyers fully recovered and back with their clients.

It’s not as though help for recovering lawyers is not available. In fact, a lawyer assistance program or committee exists in every state, whereas 25 years ago only 15 states had programs for lawyers who abuse drugs and alcohol. Lawyer Assistance Programs (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 an alcohol abuse problem? How long will it take for the lawyer to successfully recognize and deal with their 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’s Commission on Impaired Attorneys shocked the profession in 1991 when it estimated that 18 to 20 percent of the nation’s lawyers abuse alcohol or drugs. By comparison, among the general population, including persons in other highly stressful professions such as physicians and pilots, the estimated rate of chemical abuse is at a much lower eight to ten 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 the general population.

Depression among lawyers dwarfs all other professions. Research shows 33 percent of lawyers suffer from mental health issues, and that 19 percent of the lawyers studied suffered from significant elevated levels of depression—more than twice the national average. In all, lawyers are 3.6 more times 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 other occupations. A study conducted by the National Institute for Safety and Health found that male lawyers between the ages of 20 and 64 are more than twice as likely to die from suicide than men of the same age in other occupations. 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 population, 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 for overcoming addiction.

“Lawyers are treatment resistant,” says William Messinger, a lawyer and president of Aureus, Inc. a St. Paul, Minnesota, company that assists legal professionals and their employers with recovery and relapse preventions 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 study commissioned by Cottonwood de Tucson, a behavioral health treatment center in Tucson, Arizona, where 460 LAP professionals and recovering lawyers from around the nation were interviewed. The 2004 study identified several obstacles for lawyers accessing treatment. Among the findings was:

  • The primary obstacle that prevented legal professionals from accessing care was the belief that they could handle their problem on their own, due to their strong sense of self-reliance.
  • A significant obstacle to making the decision to seek treatment was a concern regarding a potentially negative impact the decision might have on their professional reputation among peers, judges, and potential clients.
  • Treatment professionals find that once in a treatment program, lawyers rely upon intellectualization as an ego defense and are shut off from emotional life.
  • Although those offering services to lawyers for behavioral health problems have some understanding of lawyers’ problems, there can still be some misunderstanding about lawyers among clinic professionals including underestimating or misunderstanding the lawyer’s 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 that firm culture often serves as a barrier for the chemically dependent lawyer to get effective treatment.

“The whole [recovery] process is counterintuitive 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 who is doing everything they can to back to working again.

Successful Recovery and Back to Work Models: Physicians and Pilots

Highly trained professionals are not immune from the perils of addiction. Although the prevalence of substance and use disorders for physicians is similar to that of the general population, they have their own special risk factors that would ordinarily hinder successful treatment. Easy access to controlled substances, along with 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 the risk factors, the documented long-term recovery rates for physicians are very high—between 70 and 96 percent according to three studies between 1987 and 2005. Airline pilots who go through an extensive rehabilitation process have even higher recovery rates of 92 to 95 percent, according to a 1998 published report in the Hazeldon Voice. Returning to work can happen for an airline pilot relatively fast—often within four to six months of finishing primary treatment.

Such high recovery rates for airline pilots weren’t always the case. Before 1975, evidence of alcohol of 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 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 due to the dire consequences.

Recovery experts attribute the success of pilots and physicians returning back to work, free of addiction and depression, to similar factors. After identifying the chemically addicted employee and evaluating them for chemical dependency, the employee undergoes primary treatment for the chemical addiction and participates 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 a company monitor. Relapse prevention education and personal growth counseling further strengthen the likelihood of successful recovery from chemical dependency beyond the normal six-month continuing care program that most professionals in other fields go through.

Even after a returning pilot is 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 upon successful completion of additional treatment, and after demonstrating the factors that led to the relapse were dealt with adequately.

For both physicians and pilots, post-treatment continuing care is a key factor in developing highly successful recovery rates in their professions. 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 alcoholic and drug abuser, 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 in their career is to identify an alcoholic or chemically dependent lawyer in their firm and to confront them with their addictive behavior. It is likely that the troubled attorney 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 the smaller 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 lawyer back to work and free of addiction are: 1) dealing with the issue head-on with the purpose of helping the troubled lawyer to 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 behaviorisms; 3) intense aftercare programming that is 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 the lawyer stay in touch with the systems and tools that got them on the right path—and the lawyer’s 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 legal colleagues and coworkers of the alcoholic or addicted lawyer. Such participation is necessary because, at the point where the legal professional is 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 the lawyer to formally acknowledge 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 upon 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, serves as 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 lawyers assistance program, Minnesota 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 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 that is willing to take the steps necessary to get help for the addicted attorney but would like some assistance, addiction recovery professionals like 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 upon it may come a lot sooner in a small firm environment where it is tougher for lawyers to successfully hide their problems.

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.

Todd C. Scott is VP of Member Services and Risk Management at Minnesota Lawyers Mutual Insurance Company. He blogs at www.attorneysatrisk.com and can be reached at tscott@mlmins.com or on Twitter at RUatRISK. Minnesota Lawyers Mutual Insurance Company is a sponsor of the GPSolo Division of the American Bar Association. 

© Copyright 2011, American Bar Association.