May 01, 2015

Techno Ethics: Smoothing the Bumps in the Road for Young Lawyers

James Ellis Arden

What, Me Worry?—Alfred E. Neuman, Mad magazine mascot

Thinking about stress, depression, substance abuse . . . well, it often evokes the same feelings we had back in law school (if not still) when we had to consider codes of ethics. I already know all that stuff. It’s just common sense. Those kinds of problems are rare; I don’t even know anyone who has issues like that. My time is valuable, and I need to spend it on more practical things.

Consider that ethics codes came into being mainly to guard against competition within the profession rather than as a means to help protect clients. “The bans on advertising and solicitation perpetuated the ability of lawyers whose partners and social contacts made advertising unnecessary to keep a hold over their business and the clients.” (See Steven Krane, “Regulating Attorney Conduct: Past, Present, and Future,” 29 Hofstra Law Review 247, 249, 251.)

Not anymore: “The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar.” (ABA Model Rules of Professional Conduct, Preamble, paragraph 12, italics added.)

Ay, there’s the rub: “Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living.” (Id., paragraph 9.)

Substance Abuse and Ethics

The devastating effects of a lawyer’s alcoholism harm the quality of service their clients receive. These effects may include missed deadlines and court appointments, misappropriation of client funds, and general neglect of caseloads.—Nathaniel Currall, “The Cirrhosis of the Legal Profession: Alcoholism as an Ethical Violation or Disease Within the Profession,” 12 Georgetown Journal of Legal Ethics 739, Summer 1999 (footnotes omitted)

Stress kills, but probably not before causing other mental problems, substance abuse, and/or some kind of ethical failing. Impairment may also manifest in being late to work or missing deadlines and appointments. Lawyers who are impaired often fail to communicate with clients as required. Moreover, an impaired attorney’s judgment may be skewed. (Caution: We all know attorneys with skewed judgment—not all of them are like that because of substance abuse.)

The National Institute on Alcohol and Alcohol Abuse has estimated that 10 percent of the U.S. population is alcoholic or chemically dependent. Abuse in the legal profession has been estimated to be as much as double the rate for “normal” people.

In 1990 it was estimated that as many as one-third of the practicing bar was impaired by depression, problem drinking, or cocaine abuse at any given time. (G. A. Benjamin, “The Prevalence of Depression, Alcohol Abuse, and Cocaine Abuse among United States Lawyers,” 13 International Journal of Law and Psychiatry 233, 242, 1990.) One later study looking at alcohol use found lawyers particularly subject to psychological distress. The resultant stress directly related to the fact that 9.2 percent of lawyers exceeded expected norms for current alcohol-related problems. The data suggested “nearly 70 percent of lawyers are likely candidates for alcohol-related problems at some time within the duration of their legal careers.” (George Bailly, “Impairment, the Profession and Your Law Partner,” 15 Maine Bar Journal 96, 96–97, April 2000, footnotes omitted.)

The ABA’s Directory of Lawyer Assistance Programs (tinyurl.com/3o9yhpe) now lists lawyer assistance programs in every state, as well as the Virgin Islands and the District of Columbia. Some of these programs report that chemical dependency is involved in half of all lawyer discipline cases.

Note that unethical conduct is being regulated, not drug taking or substance abuse itself. Lots of people believe one is entitled to do whatever one wants to one’s own body. If one wants to abuse oneself, so be it. Others think drug abuse “rots” personal freedom and that it is absolutely unethical.

Both the ABA Model Rules and the California Rules of Professional Conduct address substance abuse. Some states have adopted ethics rules directly addressing substance abuse by lawyers. Georgia’s Rules of Professional Conduct, for instance, provide: “Want of a sound mind, senility, habitual intoxication or drug addiction, to the extent of impairing competency as an attorney . . . shall constitute grounds for removing the attorney from the practice of law.” (Rule 4-104.)

Substance abuse disaffects lawyers of all ages, but some sociologists believe young professionals are more apt to ethical imbroglio—with or without chemical impairment. In their book Making Good: How Young People Cope with Moral Dilemmas at Work (Harvard University Press, 2004), Wendy Fischman and her co-authors found most of the young professionals they interviewed dealt with some kind of ethical dilemma in their work. Young professionals reported honesty, integrity, and professional relationships were important, but they were willing to compromise their values to satisfy a professional demand, compete with peers, or gain rewards for long hours and low pay. Those just starting out in their careers felt that they might have to cheat just to “keep up,” or that the ends do justify the means, so an unethical act might be necessary for professional success.

Technological Aids to Recovery for Young Adults

The error of youth is to believe that intelligence is a substitute for experience, while the error of age is to believe experience is a substitute for intelligence.—Ernest Hemingway

One of the biggest challenges in treating substance abuse and other forms of addiction in young adults is patient compliance. The 2010 National Survey on Drug Use and Health shows that people aged 18 to 25 are more likely to be substance users but are less likely to obtain treatment, compared to people aged 26 to 34. Less than 10 percent of young adults with substance use problems get appropriate treatment, meaning that young people are both more vulnerable and less likely to get help. (See Jenni Samuels, “Web-Based and Mobile Interventions for Substance Abuse Diagnosis and Treatment,” tinyurl.com/mf8vk59.)

Younger people may be less likely to seek traditional forms of treatment, but they are more accepting of new technologies and use them constantly. Technology, therefore, could be useful in detecting and treating substance abuse in this group. The ubiquity of smartphones and mobile devices provides a potentially significant way of delivering useful technology to recovering addicts. (Id.)

In 2012 the World Health Organization launched a pilot program of online alcohol abuse information portals in other countries. The websites include a screening tool that helps people determine if they have an alcohol problem, as well as an ongoing program—based on cognitive behavioral therapy—that people can use to help reduce or stop alcohol intake. Users can access these tools at any time, without having to book appointments or travel; the tools provide anonymity and cost nothing. (Id.)

Motivation to recover is difficult to maintain in the face of psychological cravings and other pressures. Triggers that prompt cravings are unavoidable, and mobile devices are the ideal platform for delivering material that can help recovering addicts resist cravings and maintain the momentum they need. (Id.)

The Massachusetts Institute of Technology and the University of Massachusetts created iHeal, an iOS app that uses a wrist sensor to track biological measurements such as heart rate and skin temperature. The user inputs additional data to enable the algorithm to detect high-risk situations, and the device offers advice and help when needed. Multiple mobile platforms offer tools with a wide range of functions, including sobriety counters that track sober days; inspirational quotes, images, and video clips; and aids to meditation and relaxation. (Id.)

Lots of help is out there for those who want or need it. The more technological and Internet-based assistance that becomes available, the easier it should be to obtain fast, state-of-the-art support.

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James Ellis Arden

James Ellis Arden handles litigation and appellate matters in Southern California. He is a member of the Association of Professional Responsibility Lawyers (APRL) and the California State Bar Committee on Professional Liability Insurance (COPLI).