July 15, 2019 Feature

Noncustodial Client Suicide: Prevention and Attorney Well-Being

Francesca Flood and Elizabeth Kelley

Suicides in America are reaching epidemic proportions, occurring across a diverse spectrum of individuals. (Ctrs. for Disease Control & Prevention, Suicide Rates Rising across the U.S., cdc.gov (June 2018).) Within these statistics are the suicides of both attorneys and their clients. Attorneys are overworked and burdened by a mix of worries unique to their profession and 3.6 times more prone to depression than nonattorney positions. (R. Flores & R. M. Arce, Why Are Lawyers Killing Themselves?, CNN.com (Jan. 20, 2014).) For clients who become embroiled in the criminal justice system, the event may become too traumatic, leading to their suicide, and many suffer from mental illness. (M. A. Ali, J. Teich & R. Mutter, Perceived Unmet Mental Health Treatment Need Among Adults with Criminal Justice System Involvement, 29 J. Health Care for the Poor & Underserved 214 (Feb. 2018).)

Noncustodial Client Suicide

Noncustodial Client Suicide

The American Bar Association has taken the lead on the subject of attorney well-being, and it is increasingly becoming a much-needed topic for research and conversation. (Nat’l Task Force on Law. Well-Being, Am. Bar Ass’n, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change (Aug. 2017).) Yet the phenomenon of noncustodial client suicide and its subsequent impact on the attorney is vastly underexamined, with a paucity of data available on the subject. There are myriad factors that contribute to the stress, challenge, and maladaptive responses used by attorneys. It is fair to say that client suicide is one such factor.

An Unexamined Phenomenon

As seen with the controversial case of Sandra Bland, who committed suicide in a Texas jail, the media have increased coverage of suicides of incarcerated persons, raising a greater awareness across a broader audience. (R. J. Reilly, 3 Years Later, the Federal Government Still Hasn’t Counted Sandra Bland’s Death, Huffington Post (July 13, 2018). In 2013, at age 26, internet activist Aaron Swartz put a face and name to noncustodial (free on bail, bond, or own recognizance) suicide when he hung himself while embroiled with the criminal justice system. (J. Schwartz, Internet Activist, a Creator of RSS, Is Dead at 26, Apparently a Suicide, N.Y. Times (Jan. 12, 2013), Swartz’s death forced people to consider the potentially lethal consequences of a criminal indictment. (J. May, At the Tipping Point, 28 Crim. Just., no. 2, 2013, at 18–24.) However, the subject of noncustodial suicide was not and is still not front-page news.

The impact of a client’s suicide is not limited to the individual. Instead, it creates a wake of far-reaching ramifications. Within the context of the criminal justice system, the suicide of a client prompts a need for examination, with questions such as: What evoked a suicidal response? What can be done to prevent a client’s suicide? Are there ethical responsibilities attorneys owe to their clients? How does the defense attorney respond psychologically?

At first glance, some may wonder why a distinction should be made between noncustodial suicide and suicide of those in custody. The answer may rest in who is psychologically impacted and who feels responsibility for the person. When incarcerated, the individual becomes the ward of the government, which is charged with protecting and accounting for the person. (Mortality in Local Jails and State Prisons, 2000–2013—Statistical Tables, Bureau of Justice Statistics (2015). Conversely, the noncustodial client, free on bail, bond, or own recognizance, does not fall under this purview. If the individual completes his or her suicide, the government does not account for it. However, the defense attorney who has been working with the person may very well feel accountable if the person ends his or her life on the lawyer’s watch.

When a client commits suicide, his or her attorney(s) may fall within the category of a loss survivor, having to navigate a host of emotions from perhaps the client’s family, office staff, and internal processing. If a client commits suicide, how does defense counsel cope? Compared to other professional populations, attorneys are prone to mental health distress, have a higher rate of alcohol and/or substance abuse, and experience more anxiety and depression. (P. R. Krill, R. Johnson & L. Albert, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 Am. Soc’y Addiction Med. 46 (2016).) Moreover, lawyers have one of highest suicide rates of all professions. (S. Achimalbe, Back in the Race: Some Reflections on Suicide Among Lawyers. Sometimes the Victims of Suicide Are Not Who We Would Suspect, Abovethelaw.com (Aug. 2016).

Little is known about the state of mind of the individual who is facing prison. (K. Strutin, Clients and Suicide: The Lawyer’s Dilemma, Law & Tech. Res. for Legal Prof’ls (Oct. 11, 2014). For many, being criminally prosecuted causes a high degree of anxiety, hopelessness, loss of reputation, shame, or isolation. (J. Brophy, Suicide Outside of Prison Settings Among Males Under Investigation for Sex Offenses in Ireland During 1990 to 1999, 24 Crisis: J. Crisis Intervention & Suicide Prevention 155 (2003).) Similarly, failures within the criminal justice system may contribute to suicide and mental illness that exacerbates an already fragile state of mind. (M. Kwong, Kalief Browder Suicide a Call to Action Against U.S. Justice System, CBC.ca (June 11, 2015). Other contributing factors might include overcriminalization (B. Goodlatte, House Judiciary Committee Reauthorizes Bipartisan Over-Criminalization Task Force, Judiciary.House.gov (Feb. 2014), dehumanization (B. Bastian, T. F. Denson & N. Haslam, The Roles of Dehumanization and Moral Outrage in Retributive Justice, 8 Plos One, no. 4, 2013, at 1), and prosecutorial zealousness (S. Bibas, Rewarding Prosecutors for Performance, 6 Ohio St. J. Crim. L. 441 (2009); S. Powell, Licensed to Lie: Exposing Corruption in the Department of Justice (2014)). Our legal system and the actors within it are at risk of taking a very simplistic view by reducing the person as either good or bad. Moreover, over time those involved in the criminal justice system can experience compassion fatigue, becoming callous, apathetic, and immune even to the death of an accused. (T. A. Hoffer, J. L. E. Shelton, S. Behnke & P. Erdberg, Exploring the Impact of Child Sex Offender Suicide, 25 J. Fam. Violence 777–786 (2010).)

In their role, criminal defense attorneys represent more than legal counselor to clients. (Public Defenders, publicdefender.us (Mar. 2017).) Often, they are the individual’s hope for justice, freedom, lesser sentencing, and, perhaps, recognition as a human in a dehumanizing system. For many, the role of the attorney extends far beyond zealous advocacy in a strictly legal sense. In these instances, he or she stands in the gap playing an expanded role as social worker, support system, and potential lifeline. In an already highly stressed position, a client’s suicide may exacerbate mental health concerns for the attorney.

The stress associated with job proficiency, caseloads, client freedom/sentencing, and navigating personal life challenges can manifest as anxiety and depression. (S. Achimalbe, Back in the Race: Some Reflections on Suicide Among Lawyers. Sometimes the Victims of Suicide Are Not Who We Would Suspect, Abovethelaw.com (Aug. 2016).) There is an increasing sense that our law is becoming a win or lose game. (M. Seligman, Why Are Lawyers So Unhappy?, Lawyerswithdepression.com (Sept. 20, 2016). Add to this an increased fear of client suicide. For attorneys, “[t]here also is evidence of suicide, work addiction, sleep deprivation, job dissatisfaction, a ‘diversity crisis’ at the top of firms, work-life conflict, incivility, a narrowing of values so that profit predominates, and chronic loneliness.” (A. M. Brafford, Am. Bar Ass’n, Well-Being Toolkit: For Lawyers and Legal Employers 2 (Aug. 2018).) As one participant in this study stated, “This is not a happy profession.” Of the nearly 13,000 attorneys who participated in a 2016 study on the prevalence of substance abuse and mental health concerns, between 21 and 36 percent qualify as problem drinkers, approximately 28 percent experienced some level of depressive symptoms, and 18 percent experienced elevated anxiety. (Krill, Johnson & Albert, The Prevalence of Substance Use, supra.)

Although we do not have the statistics on pretrial suicide, we do know that an incarcerated person is six times more likely to commit suicide than the general population and the pretrial detainee is seven and one-half times more likely. (World Health Org. & Int’l Ass’n for Suicide Prevention, Preventing Suicides in Jails and Prisons (2017). Without statistical accounting, by virtue of their role, defense attorneys may be the best source, albeit anecdotally, to gain insight into the death of a client, its personal impact, and their perspective of how such tragedy might be prevented. The literature examining the suicide of a noncustodial client is nearly silent. Even less is known about the impact of a client’s suicide on his or her defense counsel.

Purpose of the Study

The purpose of this exploratory and descriptive study is to examine pre-trial suicide of people charged with any crime, to understand the psychological impact on defense attorneys by examining their lived experience, and to discuss potential solutions.

Methodology

The survey data and narratives from 69 criminal defense attorneys who either feared a noncustodial client’s suicide or experienced their client’s attempt or completion were examined. Participating attorneys were a mixture of public defenders and private practitioners. Of those in private practice, there was a blend of those who did court-appointed work and those who had privately retained clients. Of the 69 participants who completed an online survey, 25 participated in a follow-on telephone interview to elaborate or clarify survey responses.

In this qualitative study, the authors used a constant comparative method to catalog the experiences of these attorneys using their own words to identify consistent categories that developed into overarching themes. The constant comparative method is an iterative process using open coding, enabling researchers to compare, categorize, and develop themes emerging from the data. (B. G. Glaser & A. L. Strauss, The Discovery of Grounded Theory: Strategies for Qualitative Research (2009).) Using qualitative data, an analytic procedure of constant comparison is conducted to first elicit codes and, secondly, identify emerging theory. (B. G. Glaser, The Constant Comparative Method of Qualitative Analysis, 12 Soc. Probs. 436 (1965).) As a qualitative research, this method enables a portrait of the studied phenomenon to emerge, not quantitatively, but by understanding the perceptions, experiences, impact, and meaning participants assign to their experience. (N. Rose, Unstructured and Semi Structured Interviewing, 1 Nurse Researcher, no. 3, 1994, at 23.) Codes are generated from the data rather than to prove a preconceived theory. (A. Strauss & J. Corbin, Basics of Qualitative Research: Grounded Theory Procedures and Techniques (1990).)

Data Coding and Analysis

The principal investigator read each survey and subsequent transcript line by line, attributing a code to a word, sentence, or phrase, with codes representing a concept or idea as prescribed by the constant comparative method. Each survey comment and transcript was coded, adding new codes as necessary until all were completed and no further codes were forthcoming. All survey comments and interview codes with similar characteristics were grouped into broader categories. These categories were continuously compared for similarities and differences, eventually being grouped into overarching themes. A second rater also coded all data. Once the two independent code structures were finished, the investigators conducted a validation process by comparing notes and reconciling any rater differences in coding.

Participant Characteristics and Experience Level with Client Suicide

Demographic characteristics of the 69 attorney participants are shown in Table 1 on page 11. The majority (95.7 percent) were white/Caucasian and male (58 percent), with an equally distributed spectrum of ages , and (50 percent) have practiced criminal law for over 20 years. Variables capturing attorney experience and views on client suicides are listed in Table 2 on page 12. For the majority (65 percent), attorney-client privilege was a concern as it relates to client disclosure about suicide ideation (individual is thinking about suicide). Most attorneys (86 percent) expressed concern about client suicide ideation with nearly 81 percent referring the person to a mental health professional even if ideation was not expressed.

Most participants (65 percent) had a client commit suicide without communicating ideation, and the majority (71 percent) had at least one client attempt or complete suicide. Many (36 percent) did not feel skilled at recognizing psychological distress/suicide ideation and 29 percent were unsure if they are qualified to recognize it. Many attorneys (42 percent) had experienced more than one client’s suicide attempt or completion. When asked if recognizing suicide ideation should become a continuing legal education topic, 97 percent responded affirmatively.

Results

The researchers identified four overarching themes: how involvement in the criminal justice system affects clients, factors contributing to the suicide phenomenon and overarching challenges, the psychological impact of a client’s death on the attorney, and solution considerations including education, addressing systemic issues such as mass incarceration, and codifying attorney-client privilege as it relates to clients’ suicidal ideation.

Criminal Justice System and Client Impact

When queried whether they had ever experienced concern about a noncustodial client’s suicide ideation, the majority (86 percent) responded they had and believed that more clients contemplated suicide than most would think. As one attorney expressed, “It is a problem, and no one is looking at it.” Almost all attorneys had consensus regarding suicide ideation, “. . . every person that came through that door in my office had that thought (suicide) go through their head.” Suicide ideation is the initial step in the trajectory towards making concrete plans about suicide and ultimately death by suicide. (L. Firestone, Am. Psychol. Ass’n, Suicide: What Therapists Need to Know (2010).

Attorneys shared their thoughts on how involvement in the criminal justice system adversely affected and impaired their clients with fear, stigma, being dehumanized, hopelessness, ruin, and loss of identity. “I think that whole dehumanization, I think it occurs not just with prosecutors, but I think it occurs across our political spectrum and our social spectrum. I think that contributes to it.” Most attorneys agreed that clients experience fear: “They don’t know they’re going to be okay. They are terrified.” Such fear is traumatic and can lead to hopelessness, where the clients thinks, “I need to take my own life.”

Once indicted or arrested, a stigma is affixed. There is little room to see the person through a lens of redemption. A label is affixed during the process: “There is no grace, no forgiveness . . . just the felony label.” Moreover, but for the accused crime, the person may have lived a legitimate, productive life. Such life is now eclipsed and defined by this singular moment: “You really can’t win at trial, and you don’t get credit for the 50 years of good life you lived.” Even if the person is exonerated, “I think he just realized that even if we beat this criminal case, his reputation and all he worked for would be gone.”

Contributing Factors and Overarching Challenges

Attorneys identified a multitude of factors that contribute to this phenomenon. Criminalizing mental illness or disabilities also was mentioned: “We need to look at mental health as the underlying issue and not how we can lock them up.” Jail and prisons have become de facto mental health institutions: “Our criminal justice system is just a huge warehouse for mentally ill” where “fetal alcohol syndrome is prevalent.” Additionally, 65 percent of attorney participants expressed that they lacked skills or were uncertain of their ability to recognize suicide ideation: “I probably did (have clients with suicidal ideation), but I didn’t think they were serious.”

A flawed bail system and prosecutorial zealousnesss and incivility were mentioned as well. “Some prosecutors are exceedingly humane, others exceedingly inhumane.” Racial bias of the system was mentioned several times: “. . . much of mass incarceration and overcriminalization is focused on people of color.” Likewise, several attorneys mentioned an overall indifference in the criminal justice system toward the accused. “Our system of justice is that we really don’t look for justice for our defendants.” The changing landscape of the criminal justice system with overcriminalization was seen as a contributing factor, “I mean hell . . . we have more people in prison in the western world than any other nation.” Lack of funding was cited—“There’s a lack of money to get what these people need”—as well as a perception that prosecutors have a financial advantage. “Public defenders do not receive the same resources as prosecutors.”

Psychological Impact on Attorneys

Attorneys in the instant study experienced a broad range of emotions. Many felt guilt and wondered how or whether they had missed signs. Attorneys frequently experienced sadness, depression, and anger, and acknowledged the experience was traumatic, leaving a lifelong impression. Predominant features expressed were a sense of failure or “[f]eelings of guilt.” Many articulated feelings of inadequacy, wondering what they could have done differently and whether it could have been prevented. Such sense of inadequacy expressed itself as guilt, shame, or failure to recognize signs even when no ideation was expressed: “I didn’t recognize it” and “I didn’t see it coming.” Additionally, some participants wondered if they had somehow played a role that contributed to the suicide: “I was the prosecutor, concerned I had contributed to it,” and “Did I paint too grim a picture?” Questions of prevention were raised: “Could it have been prevented?” Some participants expressed an inability to move past the experience: “I still haven’t forgiven myself,” and “It’s been 20 years ago. I still remember.”

Attorneys who experienced a noncustodial client’s suicide found it traumatizing: “This has scarred me to no end.” For some, the death of a client left a lasting imprint: “Something I’ll carry my whole career, if not for the rest of my life.” Likewise, attorneys felt a sense of sadness, depression, shock, or feeling numb. When we experience trauma, our ability to modulate our emotions may become overwhelmed. Our inability to navigate through the stress or experience may result in maladaptive coping behaviors. Some shared that alcohol was the most accepted coping mechanism: “. . . drinking, drugs, other addictive behaviors, dangerous behaviors are not that uncommon. In the prosecutor’s office as well. Our slow suicide.”

Some participants discussed the need and/or ability to compartmentalize the experience: “You have to build walls to survive this, but sometimes they come crashing down” and “I compartmentalize a lot. Otherwise, I would perpetually be on antidepressants and probably an alcoholic.” There is an inability to ask for help in navigating the stress: “We need to learn how to reach out for help ourselves.” The culture of the profession, however, may create a stigma associating such help as a weakness, and attorneys hesitate.

Potential Solutions Offered by Attorneys

While most of the contributing factors articulated were systemic issues that exceeded the scope of the research and this article, attorneys mentioned some specific individual behaviors and organizational initiatives as possible prevention mechanisms and contribution to attorney wellness. These recommendations target the client, attorney well-being, and the organizations that assist attorneys. There was clear consensus that solving the phenomenon of client suicide would be an onerous task and that finding solutions to this complex issue would be challenging. As one attorney articulated, “It’s really a brutal process . . . our criminal justice system.”

Systemic problems include addressing mandatory sentencing (“Sentencing is so horrible sometimes.”), the need for more specialty courts (“Specialty courts like drug courts, humanize the person”), and fixing the bail system (“Clients sit in county jails for one, two, and three years . . . no bail money”). Attorneys emphasized the need to acknowledge and address the inherent racism within the system “perpetuates hopelessness of many of our clients that so much of enforcement, so much of mass incarceration, and overcriminalization is focused on people of color.”

Assisting the Client

Battling an entity much larger than one’s self creates a sense of hopelessness. Attorneys articulated the importance of communicating and conveying advocacy. This is not to suggest overpromising or setting unrealistic expectations. It is to assure clients they matter at a time when they are told and believe they do not. Conveying the attorney is engaged and will do his or her best on the client’s behalf is also important. Such actions may ameliorate the client’s sense of hopelessness and feelings of isolation. Extend compassion: “It’s wrong to think that having compassion, you’ll lose your objectivity.” Remind the client of his or her humanity: “We (attorneys) focus so much on their legal situation that we don’t address their human concerns.”

Few would deny that involvement in the criminal justice system can be a traumatic experience. For many there is a fear of prison, loss of friends and family, and loss of footing in society and life. Many noncustodial clients contemplate suicide. Although many attorneys might think this phenomenon is isolated to clients with child sex or pornography charges, such is not the case. A 2009 study specifically examined the incidence of pre-trial suicide in the child sex offender population, but they posited that other federal detainees are just as likely to experience problems. (J. Byrne, A. J. Lurigio & R. Pimentel, New Defendants, New Responsibilities: Preventing Suicide Among Alleged Sex Offenders in the Federal Pretrial System 73 Fed. Prob., no. 2, Sept. 2009, at 40.)

As attorneys shared in the instant study, suicide ideation is equally present in a variety of charges, including white collar, domestic violence, drug, DUI, and a host of others. Assume your client has these thoughts and address them. Most attorneys who had a client commit suicide were caught unaware because the person did not articulate ideation. “Most participants in the criminal justice system . . . are woefully inept at identifying those at risk for suicide.” The client may simply need someone to talk with about his or her feelings and experience. Suggest he or she meet with a healthcare professional, clergy, or other religious professional, or talk to family for support.

Attorney Well-Being

Most of the attorneys did not feel skilled at recognizing the signs of suicide ideation. If we agree that criminal defense clients who are confronting prison/jail time think about suicide, perhaps attorneys may want to include recognizing the signs of suicide and dealing with this situation in their repertoire of skills. Such recognition may not be limited to identifying signs in clients, but also in colleagues, family, friends, or self-identification.

Given the emergence of attorney well-being awareness, it is a field that has come to terms with the challenges, stress, psychological impact, and maladaptive coping such as attorney suicide, drug use, and alcoholism. Moreover, there is a recognition that stigma associated with an attorney’s need for counseling or mental health assistance must be eliminated. Dealing with the death of a client can be a traumatic experience and as such may lead to post-traumatic stress. Attorneys need a safe harbor where they can express and process their experiences without fear of reprisal or stigma or where needed help is not associated with weakness or less professionalism. “Attorneys need to talk about it . . . where it’s safe to talk about it. . . .” There are myriad ways for healthy coping, and as a professional, more attorneys should be encouraged to use them. (Brafford, Well-Being Toolkit, supra.)

Organizational Assistance

Organizations that serve the needs of attorneys have the greatest opportunity to assist in the prevention of client suicide and advocating attorney wellness. Continuing legal education (CLE) addressing client suicide should be offered to help recognize the signs, how to address it if presented, and how to navigate if a client does commit suicide. The majority of participants (97 percent) agreed that offering CLE on client suicide and issues associated with it would be beneficial: “Yes, CLE to recognize their state. Recognize their conditions” and “I think how we (attorneys) cope is a topic that needs to be explored and discussed.”

Based on comments from attorneys in this study, there is need for clarity when confronted with this dilemma. For 65 percent of participants, attorney-client privilege became a concern with client suicide ideation: “What are my duties of confidentiality versus my duties, you know, to keep him from doing it? That’s an interesting conundrum.” The operation of attorney-client privilege with regard to client suicide ideation is not consistent or standardized nationally. (Strutin, Clients and Suicides, supra.) Such inconsistency can lead to confusion: “I was very confused about what I was supposed to do (reporting)” and “The client threatened suicide and you don’t really know what to do . . . I believe it’s privileged information.” Given this dilemma, some will—“And I say to the family . . . let’s keep an eye on this . . . don’t want to lose a client over this . . .”—while others won’t: “If you’re making the family aware, you’re violating attorney-client privilege in the worst way.” An overarching sentiment maybe sums up the dilemma: “We need to put our legal hats aside sometimes to find out what’s best for someone’s human life . . . find a way . . . without breaking ethical rules.” Perhaps this too is a topic for CLE: “I think CLE on this would be very useful, teaching us how to deal with attorney-client privilege versus getting the client help.” Some attorneys informed their client to not disclose suicide ideation because they are required to report it. From the client perspective, this requirement to report may breach the sanctum of the attorney-client relationship. Client suicide ideation or attempt tests the boundaries of the attorney-client relationship, requiring navigation of legal, professional, and moral obligation.

Conclusion

As more research and discussion emerge emphasizing attorney well-being, specific topics that directly affect attorney wellness require deeper exploration. While more reports about inmate suicide have surfaced, there is a paucity of data about noncustodial client suicide. Even less data are available on how their attorneys processed the experience. The criminal justice system is a very human construct. As such, it is subject to human error, emotions, thoughts, and behaviors. This includes all actors within the system and the need to educate, accept our human condition, and appropriately address when a traumatic event such as client suicide has occurred.

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Francesca Flood is a member of Hope Verdad LLC in White Post, Virginia.

Elizabeth Kelley

Elizabeth Kelley is the editor of Representing People with Mental Disabilities: A Practical Guide for Criminal Defense Lawyers published by the ABA. She is co-chair of The Arc’s National Center for Criminal Justice and Disability.