INSIDE  


THE MAGAZINE  

   October 2001


The Magazine



Past Issues


Write for Us

Advertise

About the Magazine

Letter from Editor

Order Back Issues

Masthead


Smart Practices

Confronting Alcoholism in the Legal Profession: Why, and How, to Unmask the Coverup
By Michael J. Flaherty and Richard J. Jacobson

A Brief Clinical Case Study

Since the earliest days of their practice together, Tom and Jim have exemplified a law partnership that really works. They directed their energies toward growing their firm, and grow it they did. Today, the firm has nine lawyers, supported by ten non-lawyer employees. Both Tom and Jim worry that growth may threaten the firm’s family culture, but all appears to be well. Unfortunately, everyone in the firm has an unacknowledged problem. Tom is an alcoholic.

Tom holds it as an article of faith that he doesn’t drink more than most of his friends. True, he spends less time at work than he used to, but isn’t that a prerogative of ownership and 20 years of hard work? Tom knows that he is still a good lawyer. He still brings in his share of business, and he has associates do the work he can’t seem to get to. Being a lawyer is tough. If he ties one on, so what. He’s under a lot of stress and deserves to have some fun once in a while.

But recently, a valued associate left the firm. The truth is that before she left, she argued loudly with Jim about Tom’s drinking. She blurted out that she was not going to keep cleaning up Tom’s mistakes. Jim decided she wasn’t a team player and would never be a partner. If anyone else had been present, they would have had a hard time discerning whether she quit or had been fired.

Tom’s secretary is a pro at covering for Tom. After all, she has been doing it for years, and practice makes perfect. Tom tells everyone he wouldn’t be the lawyer he is today without her. Rumor has it that her year-end bonus is enormous.

Tom’s wife doesn’t think that Tom has a problem. Her husband works hard and has always been a good provider. She never mentions his benders, which have become increasingly frequent. She chalks them up to the stress of running a law firm. Besides, whenever she says anything about his drinking, Tom becomes abusive and blames her for his problems. The two appear to have reached a compromise. He drinks and she does not talk about it. She knows Tom needs her, so she doesn’t allow herself to be critical of his increasingly irrational behavior. She would be outraged if anyone said her husband was an alcoholic.

Jim knows that Tom drinks more than any other lawyer in the firm, but he refuses to believe that Tom has a drinking problem. Instead, he believes that Tom is having a midlife crisis.

The closer people are to Tom, the more likely they are to rationalize his conduct. Unwittingly, his friends, relatives and colleagues are enabling his destructive behavior by covering for and ignoring it. It is the nature of the disease of alcoholism to be invisible to those who suffer from it and to the people who share their lives.

However, Jim’s eyes open when a major insurance company pulls all its cases. Jim thinks the client can be replaced, but the event raises serious questions. Is a lawsuit coming? Does Tom really have a drinking problem? If he does, what are Jim’s responsibilities? Do clients need to be told? Is this a disciplinary issue? Is Tom competent to practice? How could Jim have let the associate go? How many people know about this problem? Can the firm keep it quiet? Is it time to get rid of Tom? Will the firm survive? What should Jim do?

What happens next will determine Tom’s fate and the fate of those who are closest to him. If Tom’s wife or Jim, or both, are able to arrange for an intervention, there is a decent chance that Tom can be saved. Without intervention, Tom will continue his downhill slide and, in the process, lives will be destroyed.

Is Tom’s problem rare? No. Lawyers like Tom can be found in firms everywhere.

The Scope of the Problem: Startling Data

Alcoholism and substance abuse afflict lawyers disproportionately when compared with the rest of the population. Data from the National Institute of Alcohol Abuse and Alcoholism (NIAAA) are revealing. One conservative estimate indicates that 10 percent of the general population abuse alcohol or other substances. The percentage of lawyers who are alcoholics or substance abusers is estimated to be twice that. Why this is so is subject to various theories. We do know that work roles with little or no supervision, and those jobs characterized by high mobility, are associated with increased rates of problem drinking. Similarly, numerous studies have shown a significant relationship between work stress and the development of drinking problems. It’s not surprising then that alcohol is such a problem for lawyers.

The impact of impairment on disciplinary and professional liability risk is devastating. And overall economic statistics are equally alarming. A May 1998 release from the NIAAA reported that, in a preceding period of just seven years, the economic costs of alcoholism and alcohol-related problems rose 42 percent to $148 billion annually in the United States. Two-thirds of these costs related to lost productivity, either due to alcohol-related illness (47.7 percent) or premature death (21.2 percent). Most of the remaining costs were in the form of health-care expenditures for treatment of alcohol use disorders and the medical consequences of alcohol consumption (12.7 percent), property and administrative costs of alcohol-related motor vehicle accidents (9.2 percent) and various additional costs associated with alcohol-related crime (8.6 percent).

Given the catastrophic statistics regarding the prevalence and impact of lawyer impairment, what should the legal community do to prevent such losses?

The Solution: Identification and Quality Control

Law firms must learn that firing the associate who is an alcoholic or covering for the impaired partner are behaviors that negatively affect profits. Costs associated with replacing lawyers have to be weighed against the minimal costs of treatment and the probabilities of successful treatment outcomes. The personal embarrassment and fear involved in confronting a powerful partner have to be weighed against the potential losses arising from disciplinary complaints, malpractice claims and eventual client defections.

We are not suggesting that law firms should be in the business of diagnosing impairment. That is a matter properly handled by other professionals. Nevertheless, there must be a mechanism in the law firm setting that permits identification of potential impairment situations. One such mechanism is quality control.

Peer review and meaningful supervision—any significant institutional effort to monitor quality—will identify failing productivity, qualitatively and quantitatively. While such identification does not necessarily detect impairment, it does focus attention on the group where impairment is likely to be found. Whether the law firm is confronting only the possibility of impairment or its full-blown manifestations, the firm must be in a position to offer, recommend or require appropriate professional resources. If fear of retribution is eliminated from the equation, lawyers will be more willing to accept the professional treatment that the law firm offers, recommends or requires.

The key here is that law firms must be in the business of making resources available to afflicted persons, if not for altruistic reasons, then for financial benefit. This is a better economic alternative than simply casting aside the lawyer whose drinking is out of control, which makes no sense when free treatment is available, successful outcomes are numerous and replacement losses can be avoided by the firm.

A Professional Responsibility: Inducements to Action

Everyone—the individual, the firm, clients and families—suffer when impaired lawyers are ignored, placated or cast aside. The economic incentives for working to help those lawyers are significant and should be heeded.

But if more specific incentives are needed, consider Jim’s predicament. Lawyers have a professional responsibility to protect their clients from lawyers like Tom. By making treatment resources available to those who need them, law firms will be heeding their professional responsibility by taking proactive steps to protect their clients.

Lawyers also have a responsibility to their families and employees to keep the lawyer who is an alcoholic from dragging down the firm. Only through intervention can lawyers like Jim prevent the Toms of the bar from destroying everything that so many have worked so hard to achieve—and, ultimately, from destroying themselves.

Michael J. Flaherty ( mflaherty@fjlaw.com) is the Immediate Past President of the Association of Professional Responsibility Lawyers.

Richard J. Jacobson ( rjacobson@fjlaw.com) is a member of the Advisory Committee of the ABA Commission on Lawyer Assistance Programs. Their firm, Flaherty & Jacobson, P.C., defends malpractice and discipline claims against lawyers and provides risk management services to law firms.

Originally published in The Trial Lawyers’ Guide, Vol. 43, No. 1. (West Group, 1999.)

SIDEBAR 1

How to Get Help

An intervention is a professionally structured and implemented effort to interrupt the progression of the disease of alcoholism. It includes having a group of people close to the alcoholic offer factual descriptions of the alcoholic’s behavior and provides direction to further assistance. Local lawyers’ assistance programs (LAPs) frequently arrange interventions. LAPs can be an invaluable resource for assisting a lawyer who is an alcoholic, chemically dependent or psychologically impaired. Most states’ ethics rules protect the confidential nature of communications with LAP counselors.

If you, a colleague, judge or law student you know is suffering from an addictive or compulsive disorder, stress, depression or other mental health problem, contact the American Bar Association Commission on Lawyer Assistance Programs by phoning the ABA Service Center at (800) 285-2221 and asking for extension 5359. You will be given the number of the LAP or committee in your area from which you can obtain completely confidential assistance. You can also go to www.abanet.org/legalservices/colap/home.html to find a directory of LAPs in your state. If you wish to reach the commission directly, dial (312) 988-5359.

ACTION BOX

  • The July/August 2001 GP Solo magazine focuses on the theme of lawyer impairment and recovery. Read the stories online at www.abanet.org/genpractice/magazine/julyaug2001/gpsolo.pdf. • The ABA Commission on Lawyer Assistance Programs offers publications, activities, and information on local assistance programs and relevant links at www.abanet.org/legalservices/colap/home.html. • The National Council on Alcoholism and Drug Dependence is a volunteer health organization providing education, information and resources to help find long-term sobriety, www.ncadd.org. • The National Institute on Alcohol Abuse and Alcoholism provides a number of excellent articles online at www.niaaa.nih.gov.