GPSolo Magazine - October/November 2006

From Disciplinary Action to Recovery: ADPs and LAPs

Admitting to an addiction such as alcoholism or a psychiatric condition such as depression is the worst nightmare of many lawyers: What will people think? Will anyone ever hire me again if word gets out? It may be difficult to picture or appreciate the steps an attorney must go through to face such an admission. In all too many cases, lawyers face the truth only when also faced with a disciplinary action. But help is available now that was not there in the past. The founding and evolution of lawyer assistance programs (LAPs) and alternative discipline programs (ADPs) have been instrumental in expanding recovery and support opportunities so that lawyers can help themselves, or their colleagues, when addictions or health conditions result in unprofessional performance and client complaints.

In my law practice I represent lawyers facing recovery issues and their fallout—specifically, the almost inevitable collisions with the disciplinary system. I am fortunate to practice in California, which is home to a highly evolved LAP and ADP. California is the only state in the nation with a state bar court, made up of independent professional judges dedicated to ruling on attorney discipline cases. If the bar investigation of a complaint determines that an attorney’s actions involve probable misconduct, the office files formal charges with the state bar court. The court hears the charges and has the power to recommend that the California Supreme Court suspend or disbar attorneys found to have committed acts of professional misconduct or to have been convicted of serious crimes. The ADP is a program initiated in the state bar court for lawyers whose involvement in the discipline system may have been a result of substance abuse and/or mental health problems. The ADP offers the possibility of reduced disciplinary sentences for lawyers who make a binding commitment to participate in a treatment program overseen by the LAP.

LAPs: A Path to Recovery

The mission statement of the California LAP, founded in 2002, is to “support recovering attorneys in their rehabilitation and competent practice of law, enhance public protection, and maintain the integrity of the profession.” We are extremely proud of the success rate the LAP has achieved despite its infancy.

Many lawyers enter a LAP as a result of a disciplinary proceeding; others voluntarily self-refer—a very important provision that allows lawyers to take advantage of program benefits before they become involved with disciplinary processes. All participation in the LAP is voluntary, and all records are strictly confidential.

Figures for the California bar’s LAP clients in 2005 indicate that 37 percent suffered from substance abuse, 35 percent from mental health conditions, and 28 percent from dual or multiple diagnoses. A total of 693 lawyers used the program’s services,of whom 19 were terminated for failing to comply with the recovery terms of the participation agreement. Some of these lawyers, however, did return to the program.

The 2005 report noted an increase in the number of self-referred lawyers, a trend in evidence since the program’s inception. The increase in self-referrals bodes well for decreasing the impact that later—or no—intervention has on the state bar’sdisciplinary system. During the first two years of operation (2002 and 2003), nearly two-thirds of participants faced some type of disciplinary proceeding. In 2004 only half the new participants were involved with disciplinary proceedings, and during 2005 this percentage dropped to just over one-quarter.

The Disciplinary System

The prosecutor’s office and the state bar court maintain closely coordinated interaction. The state bar court refers attorneys with pending disciplinary proceedings and investigations to the LAP; an attorney cannot be accepted into the ADP (which offers the possibility of a mitigated disciplinary sentence) without firstbeing accepted into the LAP and complying with all of its requirements. ADP cases now make up 44 percent of the caseload of the state bar court. As a precondition to admission into the ADP, each participant must establish a connection (“nexus”) between the admitted misconduct and substance abuse and/or mental health problems, then must make monthly court appearances to report the status and progress of program involvement. Because of the three- to five-year commitment required by the LAP/ADP, the decision to enter the program is a highly personal one for lawyers. Some choose not to take this avenue, especially in low-level discipline cases.

The disciplinary benefits of participation in the LAP/ADP program are not limited to the possibility of a reduced sentence. In 2005 the statute creating the LAP was amended to provide assigned judges from the state bar court greater flexibility in allowing LAP/ADP participants to serve recommended periods of actual suspension at the start of their ADP participation, instead of at the end. Currently, an actual suspension of six months or more is generally served “up front,” and a suspension of six months or less is served after completion of the program.

Some prosecutors have questioned the structure of the LAP and its interrelationship with the discipline system; they wonder whether lawyers’ disciplinary sentences should be reduced simply because they have substance abuse issues (unless there are traditional mitigating factors recognized by the California Supreme Court, of course). Implementers of the programs, however, firmly believe in their ability to assist participating lawyers in recovery and rehabilitation and at the same time to protect the public and the integrity of the profession.

Solos and the ADP

Lawyers involved in the ADP are primarily solos or small firm practitioners. In fact, practicing alone or in a small firm is often a contributing factor in these lawyers’ disciplinary problems. Large firms frequently have specific committees or other checks that protect affected lawyers—and the firm—from the complications of client complaints and disciplinary proceedings. If an attorney falters, others can look after that lawyer’s clients and cases during the affected attorney’s recovery (assuming the lawyer is not simply fired).

This safety net is usually not available to the sole practitioner, who must continue to bring in business, administer the office and finances, and service all clients’ legal needs. Most of our clients are able to continue to practice while enrolled in the LAP/ADP program. Some are not so fortunate. They must temporarily give up their practices in order to meet the immediate demands of their recoveries (e.g., inpatient treatment). Some may arrange for other lawyers to tend to their practices. Because this is a significant development in the client’s case, however, it must be divulged to the client, thereby compromising confidentiality.

Institutional Involvement

An attorney who contacts the LAP is assigned a case manager licensed to treat substance abuse and mental health problems, who initially addresses any exigent or life-threatening issues, handles medical needs, and—very importantly—provides emotional support. The lawyer immediately begins participation in professionally facilitated LAP support groups and other self-help programs as needed and may be referred to medical and psychiatric professionals for evaluation if necessary. The case manager and group facilitator stay with the lawyer throughout the program of structured recovery. An evaluation committee consisting of medical doctors, psychiatrists, psychologists, and other licensed health care professionals determines the extent of the lawyer’s participation and at what point the lawyer has successfully completed the program. This structure avoids some of the challenges faced by solo clinicians who might have to provide assessment, monitoring, and treatment. Of course, in some instances, this latter approach may be preferable.

Personal Challenges

What does the program require of its participants? The criteria for formal completion of the program are (1) maintaining three years of continuous sobriety or, in cases of mental health, stability; (2) making lifestyle changes necessary to maintain ongoing recovery or stability; (3) satisfying the terms of the participation agreement (a contract between the lawyer and the LAP); and (4) participating in the prescribed program for three to five years or a period established by the evaluation committee. This is a huge challenge, albeit necessary to recovery.

One of the most rigorous requirements of the program is that each individual must take full responsibility for his or her transgressions—whether they involve criminal activities or family relationships. Some participants find it particularly difficult to stop blaming others for the choices they themselves made; many others, however, easily accept this responsibility as part of their individual programs of rehabilitation. Yes, some are motivated solely by the desire to save their licenses, but much more than a license is at stake if they do not begin to help themselves.

Conclusion

It is clear that our LAP and ADP are working for participants. These attorneys have faced the entire range of problems: alcohol and drug abuse, manic depression and bipolar disorder, sexual and gambling addictions, and other serious personal challenges. But the success stories are numerous. The attorneys are honoring the obligations to their clients, making restitution, repaying unearned fees, and attending classes in topics such as ethics and client trust-account sessions sponsored by the bar. They are rebuilding their lives and their practices.

 

Paul J. Virgo is of counsel to the Century Law Group in Los Angeles, California, and for 25 years was a prosecutor for the State Bar of California. He is a professor of law of professional responsibility at Concord Law School. He can be reached at virgoethics@sbcglobal.net.

 

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