Volume 18, Number 5
July/August 2001

Bumps in the Road

By Myer J. (Michael) Cohen

What a difference a little over a decade makes. In 1988, when the ABA created the Commission on Impaired Attorneys (changed in 1996 to the Commission on Lawyer Assistance Programs, or CoLAP), there were only four states that had formal, statewide lawyer assistance programs (LAPs). Most of the organized state bars and their members were either unaware of or unconcerned about the issue of lawyers impaired by substances, psychological problems, or addictive disorders. Disciplinary response to a lawyer with a chemical dependency or psychological impairment often consisted of suspension or disbarment. Today, all 50 states, the Canadian provinces, and Great Britain have comprehensive lawyer assistance programs (many with a paid director and staff).

The decision by the General Practice, Solo and Small Firm Division to dedicate this issue of GPSolo to the matter of lawyer impairment marks another milestone in the shift of how these conditions are perceived by the legal profession and the American Bar Association. ABA President Martha Barnett has acknowledged the problem of attorney impairment and has made addressing the issue of substance abuse inside and outside the profession one of her presidential initiatives. A number of states now require CLE hours in substance abuse and mental health awareness. Many states have adopted the ABA Model Rules for Imposing Lawyer Sanctions, which regard efforts at rehabilitation as mitigation in lawyer discipline cases. Several months ago, the General Practice, Solo and Small Firm Division began devoting a column in this publication, entitled "In the Solution," to the matter of attorney impairment. Clearly, most, if not all, lawyers now regard the question of impairment as one that may affect them both personally and professionally.

No one disputes that the profession has changed dramatically during the past 20 years. More lawyers are chasing basically the same amount of business, invariably resulting in greater competition and more stress. Both new and established lawyers and law firms find themselves working an ever-increasing amount of hours, often for fewer dollars, at the expense of their personal and family lives. The demands and expectations placed on them by their clients, colleagues, and judges have never been higher and are often unrealistic and unobtainable. This is a guaranteed recipe for stress, burnout, depression, and substance abuse.

What Do We Mean?

Throughout this issue, you will see the words, "chemical dependency," "addiction," "alcoholism," "substance abuse," and "mental health disorders." Before discussing what these conditions are, it is appropriate to review what they are not. Chemical or substance dependence (which is largely synonymous with "addiction" or "alcoholism") is not a moral failing, a result of a lack of willpower, or an indication of "bad character." Since the mid-1950s, the American Medical Association has defined the condition as a progressive, incurable, and fatal disease, having biopsychosocial and genetic components.

The medical community has established a number of guidelines for the identification of substance use, abuse, and addiction. The American Society of Addiction Medicine (ASAM) defines addiction as "a disease process characterized by the continued use of a specific psychoactive substance despite physical, psychological or social harm" ( Principles of Addiction Medicine, 2d ed., 1998). The American Psychiatric Association's Diagnostic and Statistical Manual ( DSM IV) defines "substance dependence" as a pattern of substance use leading to clinically important distress or impairment during a single 12-month period, shown by three or more of the following:

  • Tolerance, shown by either: (1) a markedly increased intake of the substance is needed to achieve the same effect; or (2) with continued use, the same amount of the substance has markedly less effect.
  • Withdrawal, shown by either: (1) the substance's characteristic withdrawal syndrome; or (2) the substance (or one closely related) is used to avoid or relieve withdrawal symptoms.
  • The amount or duration of use is often greater than intended.
  • Repeated attempts without success to control, reduce, or stop using the substance.
  • An increasing or inordinate amount of time is spent using the substance, recovering from its effects, or trying to obtain it.
  • The reduction or abandonment of important social, occupational, or recreational activities because of substance use.
  • Continuing to use the substance, despite the knowledge that it has probably caused physical or psychological problems. The term "substance abuse" is defined in the DSM-IV as a substance use causing clinically important distress or impairment in a single 12-month period as shown by one or more of the following:
  • Failure to carry out major obligations at work or at home due to the repeated use of a substance.
  • The use of substances even when it is physically dangerous.
  • Repeated legal problems from substance use.
  • Continued use of the substance, despite knowing that it has caused or worsened social or interpersonal problems.
  • The patient has not previously been diagnosed as dependent on this class of substance.

Mental Health Disorders

Advances in psychiatry have determined that many psychological conditions, including schizophrenia, depression, and bipolar disorder (manic depression), are not solely psychosocial issues or the result of childhood experiences, but rather are indications of imbalances in one's brain chemistry that often can be successfully treated with medication and therapy. Other psychiatric conditions, known as "personality disorders" (including narcissistic, borderline, avoidance, and antisocial personality disorders), do not respond as well to medication, but may respond to therapy and behavior modification techniques.

Together, chemical dependency, abuse, and mental health disorders affect a substantial portion of the general population. Contrary to the legal profession's self-perception that it is immune to these conditions, several studies indicate that we may actually be especially prone to these disabling illnesses. While generally accepted figures estimate that 10 to 11 percent of the general population in this country suffers from the disease of chemical dependence, surveys in Arizona, Washington, and Maryland indicate that 15 to 18 percent of lawyers are affected by this illness.

A study done by Johns Hopkins Medical School in 1990 found that of all the professions surveyed, lawyers had the highest rate of clinical depression, a statistic that has probably not improved in the intervening years. Suicide currently ranks as one of the leading causes of premature death in the legal profession.

The Good News

That's the bad news. The good news, as will be discussed throughout this issue of GPSolo, is that the problems have been recognized, the organized bar is involved, and measures can be taken to successfully restore lawyers to health, saving their licenses, salvaging their families, and protecting their clients. The ABA Commission on Lawyer Assistance Programs has been instrumental in providing help to already functioning state lawyer assistance programs and to state bars wishing to create such programs.

Bar association programs, including lawyer assistance, law office management, and quality of life committees, have carried a message of recovery, education, and prevention to lawyers in their jurisdictions. These programs include interventions for affected lawyers; assessment and referral to treatment; weekly attorney support meetings; and CLE presentations to state and local bar associations, law firms, and private organizations. Some state LAPs also provide monitoring and reporting services, including random urinalysis, which may mean the difference between a suspension or disbarment and a probationary period during which lawyers are permitted to maintain their licenses and practices. All of these efforts have resulted in a greater recognition and understanding of the problems of impaired lawyers. This recognition has, in turn, allowed for earlier interventions for affected lawyers, thereby reducing harm to the lawyers themselves, their families, their clients, and the public's perception of the bar as a whole.

All in all, this is a hopeful time. Awareness that a public health crisis exists is the first step toward reducing the harm it causes. This issue of GPSolo is itself another indication of that awareness and the fact that our profession is willing to come to grips with a difficult problem and find a solution. After all, isn't that what lawyers are supposed to do?

Myer J. (Michael) Cohen is a member of the Florida and Massachusetts bars, and practiced primarily criminal defense in Boston and Florida. In 1986, he entered Florida Lawyers Assistance (FLA), the program created by the Florida Supreme Court to aid lawyers impaired by alcoholism, drug addiction, or psychological problems, as a client and a volunteer. In 1994, he joined the FLA staff as assistant director, and became its executive director in 1995. He also serves as the Southeast Regional Commissioner for the ABA Commission on Lawyer Assistance Programs.

The author of this article has granted permission for reproduction of the text of this article for classroom use in an institution of higher learning and for use by not-for-profit organizations, provided that such use is for informational, non-commercial purposes only and any reproduction of the article or portion thereof acknowledges original publication in this issue of GPSolo, citing volume, issue, and date, and includes the title of the article, the name of the author, and the legend "Reprinted by permission of the American Bar Association."

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