Character and Fitness: How to Handle Substance Abuse or Mental Illness

Vol. 39 No. 9

By

G.M. Filisko is a lawyer and freelance writer in Chicago

Law students and lawyers reveal how they overcame substance abuse and mental illness and offer advice on answering bar application questions on these personal issues.

Christopher Gutschenritter knew he had a drinking problem. But he worried that if he sought treatment, it might jeopardize the work he had already completed at Vermont Law School in South Royalton. And how would he answer character and fitness questions when he applied for admission to the bar?

“Part of what got me thinking I should take action was the fact I was drinking or drunk when I was counseling students on drinking issues,” says Gutschenritter. “There were several occasions where friends or family attempted to address the issue with me—to no avail. What sealed the deal was that I was starting to act like a person I had never seen before. I got into bar fights, crashed a vehicle into a snow bank, and the very next day showed up to act as an ambassador on the school’s alcohol awareness program.”

In February 2010, Gutschenritter hit bottom. “I walked into [Associate] Dean [for Student Affairs Shirley] Jefferson’s office, sat down, and started crying,” he recalls. “I told her, ‘I can’t stop drinking.’ She asked me, ‘Is this a temporary problem or something you want to get help for? I said, ‘I need to go get help.’ Her next questions were, ‘What can I do to help? What do I need to do to get you there?’” Sober since then, Gutschenritter is on track to graduate in December 2011, and his grades, networking skills, and personal relationships have improved dramatically.

Gutschenritter is not the first law student or lawyer to struggle with a substance abuse or mental health problem, and he will certainly not be the last. Studies have consistently estimated lawyers’ substance abuse and mental health issues—commonly depression—at double that of the general population.

Yet recovering law students and lawyers universally say life is better after treatment. They also say that failing to seek treatment to avoid making damaging admissions in response to character and fitness questions is shortsighted. “That kind of inquiry suggests to me that students are justifying their use of substances and rationalizing their behavior, thinking it will continue at a rational level—and it may not,” says a central Florida lawyer who sought treatment for depression and alcohol use during law school and is now a licensed mental health counselor who works with lawyers on substance abuse. “Substance abuse problems are usually progressive. Use will progress to abuse. Do you want to deal with the problem now or later? Do you want to be the subject of a bar grievance? If you truly have an addiction problem, there is a good likelihood you will end up in that position.”

Moreover, completing treatment will actually improve your position before any bar admission committee. “In most jurisdictions, the overall philosophy is to look at who the candidate is today,” says Erica Moeser, president of the National Conference of Bar Examiners in Madison, Wisconsin. “If individuals have had a substance abuse or mental health problem and a record of overcoming or coping with it, they will not have any difficulty getting through the bar.”

 

 A Dangerous Path to Sobriety

Jim Heiting’s road to sobriety was harrowing. When he had been practicing law for about seven years, he sensed he had a drinking problem. It was only when he crashed his motorcycle while drunk and landed in intensive care for five days that he sought help.

Heiting attended about 40 Alcoholics Anonymous meetings. Then he got cocky. “The obsession lifted for me,” recalls the partner at Heiting & Irwin in Riverside, California. “I did not have to stop at the liquor store on the way home and drink every day. I felt like I could drink like a gentleman again.”

There was no such thing for Heiting, and he still remembers the date he accepted that once and for all: July 17, 1986. “I crossed the median strip while driving and hit a lady head on,” he recalls. “She has permanent, lifelong injuries, but at least medical professionals saved her life. I went to jail for about six months for felony drunk driving.” Heiting got sober for good and now speaks about his recovery to lawyers, judges, and law students.

Mental health issues are just as debilitating as substance abuse. Just ask Taylor Denslow, a third-year student at the University of South Carolina School of Law in Columbia. “As an undergraduate freshman, I was diagnosed with a panic disorder,” Denslow recalls. “The physical symptoms vary, but for me, I did not feel like myself. I felt like I had butterflies in my stomach all the time. I could not eat. One day, I was sitting there taking notes and I started to hyperventilate. I could not feel my hands and thought I was having a heart attack. A friend took me to the health clinic, and the doctor said I was having a panic attack. I had never had panic attacks, but I have struggled with anxiety. I ended up going through counseling and taking medication for a time.”

Denslow began taking the medication again in her second year of law school and has not had panic attacks since. She learned that panic attacks are common in some families, especially among people who are predisposed to anxiety disorders. “The condition can lay dormant until you are in a position of stress,” she explains. “It is common among law students because that is often the most stress they have encountered.”

Denslow now serves as the national project director for the ABA Law Student Division Mental Health Initiative. “I serve as an advocate for students with mental health issues, facilitate educational experiences, and maintain the website’s listing of resources,” she explains. “It is important for law students to be aware of mental health issues and the resources available and to decrease the stigma associated with mental health issues.”

 

Applying for the Bar: Be Honest

Will you have to disclose every detail of an addiction or mental health condition to be admitted to the bar? Probably not. “Much depends on the jurisdiction to which you apply to be admitted,” says James Grogan, Chicago-based deputy administrator and chief counsel at the Illinois Attorney Registration and Disciplinary Commission (ARDC). “Most jurisdictions do not ask for any information about whether applicants have been treated for, sought counseling for, or had addiction issues.”

However, not all jurisdictions have forsaken such invasive questions. Indiana, for example, has been sued because it asks whether since the age of 16, applicants have ever been diagnosed with or treated for mental, emotional, or nervous disorders. “It is one thing if you were arrested,” explains Grogan. “But if you sought treatment for a problem with, say, depression, and the problem has never manifested itself in any way, a lot of people say, ‘Why should character and fitness people be interested in that?’”

Before you fill out the bar application, read the preamble. “The preamble encourages candidates to seek help if needed and explains the things that do not have to be disclosed, such as situational counseling like grief counseling or counseling because of a divorce,” says Moeser. “We use the preamble to allay concerns of candidates who struggle needlessly with a fear that any disclosure will disqualify them.”

Then, answer the questions truthfully. “Answer the questions as framed as forthrightly as possible, and answer them carefully,” says Moeser. “There is no requirement to provide more information than asked. But it is essential that you not lie. In many, many cases, when an individual wants to obscure a fact—whether it is a criminal record or school discipline—it is often not the fact that is the problem but that the candidate was willing to lie to obscure it. Current candor is more important than what happened in the past.”

Admitting a substance abuse or mental health issue does not disqualify you from admission. “Bar examiners look very favorably on those who have recognized and dealt with issues,” adds Moeser. “It is a fallacy that difficulty with a substance or seeking mental health help is going to be fatal. What can be and should be fatal is a candidate’s resistance to dealing with a problem.”

Do not volunteer unasked information. “Answer as you would advise a witness to answer questions in a deposition,” suggests David Redlener, who graduated from law school in 1994, worked for the New York City District Attorney’s Office for three years, and now works in public relations. Redlener entered rehab for alcohol and drug use in 2003 and has been clean since. “Answer only the question asked, and do not go out of your way to answer something not asked.”

Moeser offers an example. “Some jurisdictions ask about arrests, some ask about charges, and some ask about convictions,” she explains. “If you are asked, ‘Have you ever been convicted of a crime?’ you are not being asked if you have been arrested or charged. If you are asked whether you have ever been charged, you do not have to say, ‘I was arrested but not charged.’”

However, do not play word games. “Some jurisdictions ask, ‘Have you ever been disciplined as a lawyer?’” explains Moeser. “A candidate would be found to have been disciplined and would say, ‘I did not know you meant censured.’ That is more of an artful dodge than a candid answer. Do not split hairs to avoid a common reading of what the question would ordinarily elicit.”

Will you still be admitted if your recovery is very recent? “There has been a sea change in this area of lawyer regulation,” says Grogan. “A lot of character and fitness people say you need a year of sobriety or a wider swath of time to be admitted. But Illinois and other states now have conditional admission. If an Illinois candidate appears to be in, but has not had a sufficiently long period of, recovery, the Illinois Supreme Court can grant conditional admission. You will be admitted and monitored by the Illinois ARDC. Afterward, you will be admitted fully.”

In most jurisdictions, adds Moeser, conditional admission is a confidential status, and the admission will appear
to outsiders as any other lawyer’s
admission.

The most critical issue to remember is that successful treatment results in a brighter future. “After 10 years of sobriety, I became the county bar president,” explains Heiting. “Ten years after that, I was the state bar president. Success does not have to be restricted because of a past you are not especially proud of. You just have to move forward.”                    

 

Substance Abuse or Mental Health Problems: Where to Turn

The first step in overcoming a substance abuse or mental health problem is recognizing you need help. “Look at whether you are controlling your intake of any substance in a way that is responsible and not interfering with critical activities,” says Link Christin, a lawyer, recovered alcoholic, and director of the Hazelden Legal Professionals Program in Center City, Minnesota, which treats legal professionals with addiction problems and offers a confidential, free online quiz (www.aboutmydrinking.org) to help determine whether substance use has become abuse.

“Are you showing up for class or finals hung over where your performance is compromised?” asks Christin. “Are you writing papers or studying in an impaired state? Are you using substances so that you are having trouble understanding concepts and learning the material? Is your substance use causing you to miss classes or not participate as fully as you would if you did not have a problem? Are your friends or family saying anything to you about your substance use?”

You can turn to any one of many resources for help. “Find out what groups are available nearby, whether it is Narcotics Anonymous, Alcoholics Anonymous, or a student or lawyer organization, such as your local Lawyers’ Assistance Program (LAP) or The Other Bar,” says Jim Heiting, a partner at Heiting & Irwin in Riverside, California. “Virtually all states invite students into their LAP program and have strict confidentiality. They will also help students organize meetings confidentially and anonymously. Nothing discussed through LAP gets reported to the state bar. If you do not have a formal LAP in your state, the ABA Commission on Lawyer Assistance Programs (http://apps.americanbar.org/legalservices/colap) will connect you to relevant organizations. Finally, there are individuals who will mentor and put their arm around you and say, ‘Come along with me. It is a good life, and it is going to be OK again.’

“Remember that you are not alone,” adds Heiting. “You should make a connection so you will not feel so lonely. Once you do, you will find others who feel exactly the same way. It is a relief to find people in the same situation who are committed to helping themselves and others.”

 

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