GPSOLO October/November 2009
Discipline and Disability When Is Disease a Defense?
Stan Andrews is a partner in a two-man firm with a small business clientele. When a client complains that Andrews has been stonewalling demands to release escrow proceeds, bar counsel conducts an audit of the firm’s trust account and finds that the balance has fallen far below the amount the firm should be holding and that there are a number of unexplained disbursements to Andrews’ personal account. Andrews’ first response is to blame the secretary. As the investigation produces evidence that the secretary could not be the culprit, Andrews breaks down and admits he has been pulling money from the trust account to pay personal debts, and he tells a heart-wrenching story of a son with extraordinary medical needs. Further investigation reveals that Andrews has been paying some medical bills, but his son’s expenses were largely covered by insurance; Andrews has drawn much more money as cash and is unable to account for how it was spent. Formal charges are filed. Andrews is defending himself and begs continuance after continuance. The day before the final date set for a disciplinary hearing, bar counsel gets a message from Andrews’ wife that he has checked himself into an alcoholism treatment program.
Janice Dowling is a solo in a family law practice. Within the space of a few weeks, three of Dowling’s clients file grievances complaining that Dowling will not return their calls and that they cannot find out what is going on in their cases. One complains that his wife is warning him he is about to be served with a bench warrant for failure to appear on a contempt petition he did not even know was pending. Bar counsel sends Dowling the usual letters demanding that she respond, but hears nothing. As a few new complaints roll in, bar counsel sends repeated warnings that if Dowling does not respond, formal charges will be filed alleging that she has failed to communicate with clients and that she has obstructed the disciplinary proceeding. Still, there is no response from Dowling. After public charges are filed, a friend of Dowling calls bar counsel and says that Janice is not well and that the friend is trying to get her to a doctor. Eventually, Dowling is diagnosed as suffering from depression. Her doctor prescribes anti-depressant medication and counseling, and after several months of treatment, Dowling’s condition improves significantly.
Should Andrews or Dowling (both fictional examples) be able to assert alcoholism or depression as a defense to disciplinary charges? Can they plead protection under the Americans with Disabilities Act? Should they be sorry that bar counsel found out about their afflictions, or will the revelation of their conditions result in better outcomes for them?
The Nature of Alcoholism and Depression
Finding fair answers to these questions requires an understanding of what alcoholism and depression are. Both have physiological attributes, but both are also listed as Axis I mental disorders as defined in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, published by the American Psychiatric Association (1994).
Alcoholism is often associated with a disruption of brain chemistry. Alcohol and other drugs target the brain’s reward system by flooding circuits with dopamine, a neuro-transmitter present in regions of the brain that regulate movement, emotion, cognition, motivation, and feelings of pleasure. The brain has inhibitory systems that can mute the stimulation of the dopamine flood, but for someone addicted to alcohol or another drug, the natural damping circuit appears to be faulty. Over-stimulation by the flood of dopamine produces euphoric effects, which the addict seeks to repeat again and again, setting up a cycle of uncontrollable craving. Over time, the flooding causes the brain to produce less dopamine or to reduce the number of receptors that can receive and transmit signals, thereby reducing the person’s natural ability to experience pleasure. Then the person has to use drugs just to bring dopamine function back up to normal, and as the disease progresses, it takes larger and larger amounts of the drug to create a dopamine high. It is believed that some people have a genetic predisposition to addiction, but anyone can become an addict if sufficiently exposed to drugs or alcohol.
Brain scans of individuals addicted to alcohol or other drugs show significantly reduced activity in the areas of the brain that control reasoning and judgment, leaving the person impulsive and often unable to follow a rational course. Although there are pockets of disagreement in the field, most professionals accept that treatment for alcohol or drug dependence requires total abstinence from all intoxicants, and most prescribe long-term participation in Alcoholics Anonymous (AA), Narcotics Anonymous (NA), or some other 12-step program. Research shows that after a period of abstinence, some areas of brain activity can return to pre-drug states. For many drugs, including alcohol, the brain resets itself and shakes off the immediate influence of the drug within 90 days, and a gradual re-engaging of proper decision-making and analytical functions in the brain’s prefrontal cortex will be seen after at least 90 days of abstinence. Nevertheless, it takes considerably longer than 90 days for sobriety to be considered stable.
Depression has been linked to a shortage of neuro-transmitters (serotonin, norepinephrine, and/or dopamine) in the brain. The shortage can be caused by a combination of factors. Some of those who suffer from depression may have a genetic predisposition. Some have endured trauma that has caused permanent functional and structural damage to the brain. Others have experienced difficulties, such as financial hard times or marital problems, that trigger a depressive episode lasting more than several weeks.
Brain scans for individuals who suffer from depression show significantly reduced activity in areas of the brain important for analysis, personality expression, decision making, and moderating correct social behavior. Mental concentration is impaired. Depression can usually be treated by a combination of medication and therapy.
Behavioral Impacts for Lawyers
Alcoholism and depression impair the ability to effectively and ethically practice law.
Lawyers who are addicted to alcohol or other drugs eventually become so focused on drinking or using that nothing else matters. They spend more and more time and resources obtaining, using, and recovering from using alcohol or some other drug of choice. Addicts reduce or give up entirely what they once considered important social, occupational, or recreational activities in order to drink or use. They may try time and again to cut down or control consumption, but once that first drink or hit is taken, they are incapable of not moving on to the next and the next. Yet, no matter how many times they fail, they maintain a belief that the next time, they will be able to do it. In the throes of impaired reasoning and judgment and uncontrollable cravings, addicts do things inconsistent with their own long-held values, ethics, and beliefs.
Lawyers who are alcoholics or drug addicts neglect cases because they are not thinking clearly. They come to the office in a hangover and cannot ignore the craving for a drink or a fix to get through the day. They take retainers they will never earn, convincing themselves that they will be able to get it together with one more valiant try, or they dip into funds they are holding for clients to stave off collectors and to feed their habits. They lie to cover omissions or missed due dates. They come to court late and unprepared and insult judges and opponents. They sometimes commit crimes. Some do each and every one of those things many times over.
Lawyers who suffer from depression can become overwhelmed by seemingly routine legal or administrative tasks; sometimes they literally are unable to bring themselves to look at files, to return phone calls, or to open mail (including letters from the discipline agency). Eventually clients become frustrated and start making complaints because they cannot get information or action. Once discipline agencies start requiring explanations, they often find cases where statutes of limitation have passed or where clients have been defaulted because of the lawyer’s inability to act. In some of those cases, they will find that the lawyers misled the clients about what they had or had not done in the case.
These behavioral impacts are a significant challenge for discipline. Lawyers are almost three times more likely than the general population to suffer from depression and twice as likely to suffer from alcoholism; more than 25 percent of all lawyers disciplined suffer from either or both. (For more, see Debra Cassens Weiss, “Lawyer Depression Comes Out of the Closet,” ABA Journal, Law News Now, December 13, 2007, www.abajournal.com/weekly/lawyer_depression_comes_out_of_the_closet; 2003 Annual Report of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois, Section IV, http://iardc.org/AnnualReport03/2003annual_report.html; and 2005 Annual Report of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois, Charts 20–22, http://iardc.org/2005AnnualReport.pdf.)
Legal Impact for Discipline
Although there were early efforts after the 1990 adoption of the Americans with Disabilities Act (ADA) to require discipline agencies to provide accommodations for lawyers who suffer from mental disabilities, courts uniformly found those efforts unavailing. The courts agree that the ADA governs lawyer discipline under Subchapter II, which regulates “public entities,” but they have noted that the ADA protects only qualified individuals, and to be qualified, the person must be one who, with or without accommodation, meets the essential eligibility requirements for receiving and retaining a license to practice ( State ex rel. Oklahoma Bar Association v. Busch, 919 P.2d 1114, 1118-1119 (Okla. 1996); Florida Bar v. Clement, 662 So. 2d 690, 699-700 (Fla. 1995); People v. Reynolds , 933 P.2d 1295, 1304-1305 (Colo. 1997)). If a disability causes a lawyer to engage in misconduct, the lawyer does not meet essential requirements.
Independent of, and indeed long before the ADA, lawyer discipline acknowledged disability as a factor of importance. Exact legal formulations vary, but in general, alcoholism and depression are not accepted as defenses but may be considered mitigation for purposes of the sanction that will be imposed.
The dual purposes of discipline—to protect the public and to preserve the integrity of the profession—dictate the appropriate response to evidence of disability. Both purposes would be undermined by treating disability that leads to misconduct as a defense to a disciplinary case. If a lawyer’s judgment and focus are impaired by alcoholism to the extent that the lawyer is leaving clients in the lurch and even taking their money, allowing the lawyer to continue to practice without consequences is not an option. If a lawyer is paralyzed by depression, leaving his or her license intact puts both clients and the profession at obvious risk.
By the same token, if a lawyer committed misconduct while actively abusing substances or while depressed, and that lawyer becomes engaged in effective treatment, he or she does not pose the same risk as someone who committed the same misconduct because he or she is dishonest or incompetent—so long as the lawyer stays engaged in treatment. And that is the basis for treating disability as mitigation.
But the premise is true only if the lawyer is in treatment and has shown a commitment to staying there. For someone who is not committed to treatment, the disability can be (and, in many jurisdictions, is) considered an aggravating factor. A lawyer who is actively alcoholic or depressed is a bad risk for future misconduct, and in many jurisdictions, the lawyer will be suspended or disbarred and not be allowed to return to practice without proof of recovery.
Not every jurisdiction is open-minded about disabilities, but much of the resistance can be traced to how the issue is posed by the respondent lawyer. If the lawyer insists that the condition be accepted as a defense, fully excusing any misconduct, there will be resistance. That resistance may appear hard-hearted and judgmental, but it is also consistent with therapeutic goals. One of the core principles of recovery is that the individual must accept responsibility for any harm done. Some level of discipline is a natural consequence for certain types of behavior, and, in the long run, recovery will depend on individuals learning to face the consequences of their choices, consequences from which friends and family probably protected them during their active illness. This is an easier truth for someone whose recovery has progressed to a more stable stage, but when the person has delayed the dive into treatment until the 11th hour, the discipline authority has little room to be gentle. And that, unfortunately, is another consequence of bad decisions.
Stan Andrews and Janice Dowling
Getting back to our fictional examples, what should happen to these lawyers?
For Janice Dowling, the risk of future misconduct is minimized so long as she follows through with whatever treatment has been recommended. In Illinois, bar counsel would have asked Dowling to submit to an examination. If the doctor confirmed the diagnosis and her progress in treatment, bar counsel would likely agree to a term of probation for at least two years during which her treatment would be monitored. If there was evidence of significant misrepresentations to clients, the sanction would include some period of actual suspension.
For Stan Andrews, what should we make of his 11th-hour entry into treatment? We can recognize that it is consistent with one of the confounding attributes of addiction: the phenomenon of denial. Denial is a fog, a unique mix of honest confusion about why life seems out of control and active refusal to accept reality. Someone with reasoning and judgment intact who was facing Stan’s dilemma would have found his way to treatment long before the 11th hour. But someone in the throes of addiction can hold onto the irrational belief that things will work out without having to address the addiction.
If Stan were still in active denial, he would probably be asking for another continuance or appearing at the hearing and insisting that he has done nothing wrong. By the same token, his commitment to treatment is not secure in just a couple of days. This is a particularly challenging case for bar counsel, but if it is practical to delay the hearing for a couple of months, it will become clear whether Stan is committed. Practicality depends primarily on whether Stan has active client matters and whether he or someone helping him has made arrangements to have those matters covered.
I have a particularly striking recall of a similar case I faced while working at the Illinois Attorney Registration and Disciplinary Commission. Our counsel had recommended that the lawyer pursue treatment several times during the investigation and pretrial stages of the case. Upon learning that the lawyer had checked into a program on the eve of the hearing, we decided not to oppose a continuance. That lawyer completed the inpatient program and followed the treatment plan he was given upon release. We entered into a consent that included a relatively short suspension (he had converted client funds), followed by two years of probation during which he was required to continue in treatment. At the hearing where the consent was presented for a panel’s approval, the lawyer asked for only one thing: the opportunity to thank our counsel for having done the kindest thing anyone had ever done for him. For several years, he sent her Christmas cards reporting milestones in putting his life back together, including that he had reconciled with his wife and children.
As lawyers, we look for logical solutions to problems. Mental disabilities tend to defy logic, and many of us react to them in ways we do not even understand, sometimes because of personal experience we have yet to comprehend. The fact is that these disabilities cause great pain to the persons afflicted and those around them, and cause great harm to clients. Our legal response must take into account the physiology of the conditions and the pain and the harm they can cause, tempered with some compassion and openness to what we do not necessarily understand. These are times laden with opportunities to mold legal solutions that respect the complexity of being human.
Mary Robinson is a partner in RobinsonNiro PC in Chicago, Illinois, and provides representation in attorney discipline cases and consulting, expert witness services, and educational programs on professional responsibility issues. From 1992 to 2007, she served as the administrator of the Illinois Attorney Registration and Disciplinary Commission, having practiced law for the previous 18 years, primarily as a criminal defense attorney. She may be reached at firstname.lastname@example.org.