May 01, 2019 March/April 2019

Addressing Impaired Attorneys

Novel attempts to broaden firm management's response to lawyer substance abuse and mental health issues.

Thomas E. Schimmerling

Shortly before I began to write this article, I happened to find myself conversing with a very personable and fair-minded young attorney from a medium-sized insurance defense law firm. After discussing the case on which we were opposing counsel, I asked if he thought his firm had a policy regarding attorneys and staff who were impaired by alcohol, drugs or depression. “I don’t know,” he said. “I imagine they would be fired.”

The life of an attorney is defined by pressure and stress. For decades it’s been common knowledge that people in the legal field struggle significantly more than other professionals with substance abuse and mental health concerns. Until a recent major study, however, no one really fully understood the depth of the problem.

The ABA Study

The ABA, along with the Hazelden Betty Ford Foundation, funded a large-scale study regarding attorneys and substance abuse. As a result, the Journal of Addiction Medicine published “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys” in 2016. This study looked at a large sample of attorneys, totaling 12,825 people.

Researchers employed several identification tests to determine the factors relating to substance abuse and mental health. The tests they used were well-established and proven in previous studies to retain “high internal consistency” and reliability. These tests evaluated the person’s status and ranked each according to the severity of his or her potential impairment.

Alcohol use.

First, researchers found that overall 20.6 percent of the respondents scored at a level that signifies problematic drinking. Overall men scored significantly higher than women. According to this study 25.1 percent of male respondents reported issues with alcohol versus 15.5 percent of women.

There were also other demographic factors that affected the numbers. Surprisingly, the research found that the rate of problem drinking among younger associates was much higher than that of older people. For example, 31.9 percent of attorneys ages 30 or younger reported issues with alcohol while only 16.2 percent of those ages 51 to 60 disclosed that they had a potential problem.

The research also indicated that work environment plays a key role when determining risk factors. Attorneys who work for bar associations or private law firms reported higher instances of problematic drinking than those who work in other areas. For example, 24 percent of the respondents who work for a bar association reported having these issues while 19 percent of those working as a solo practitioner in a private firm reported the same.

Drug use.

Participants were also asked about their drug use. The survey asked about both licit and illicit substances. Of those who used drugs, respondents reported using stimulants the most—74.1 percent. Additionally, of those who used drugs, 51.3 percent of respondents reported using sedatives, 46.8 percent tobacco, 31 percent used marijuana and 21.6 percent used opioids.

Mental health.

Researchers likewise found some interesting demographic data about mental health among attorneys. Men reported significantly higher levels of depression, and women reported higher levels of anxiety and stress. As respondents’ ages increased, their levels of depression and anxiety decreased. The most common mental health concerns were:

  • Anxiety, 61.1 percent.
  • Depression, 45.7 percent.
  • Social anxiety, 16.1 percent.
  • Attention deficit hyperactivity disorder, 12.5 percent.
  • Panic disorder, 8 percent.
  • Bipolar disorder, 2.4 percent.

Treatment.

According to the study only 6.8 percent of the participants stated that they sought treatment for drugs or alcohol, and 21.8 percent of those who went into treatment did so through programs specifically designed for legal professionals. The study took a few further steps to determine what sorts of barriers attorneys faced when considering getting into a treatment. What researchers found was that concerns about confidentiality were the main stumbling block.

Understanding Addiction

In an article titled “Confronting Addiction in the Law Firm” in the March 2017 edition of Legal Management, author Link Christin describes the importance of understanding the reasons lawyers don’t come forward when they have a problem. It is also essential to understand the nature of addiction and the behaviors of those affected.

Addiction is a chronic and progressive disease on par with cancer and diabetes. However, the symptoms of addiction manifest in a person’s behavior rather than the more obvious physical complaints present in someone with diabetes. Of course, after some time, chronic use of drugs and alcohol will take a physical toll. The idea, though, is to get people into treatment well before this occurs.

The very nature of a chronic illness is that it never goes away. The experience of countless alcoholics and addicts, as well as treatment professionals, is that while the affected person can remain clean and sober for the rest of his or her life, the condition will return if he or she takes a drink or a drug.

Addiction can be successfully treated if a person enters into a treatment program. However, since many alcoholic and/or drug-using attorneys are “high functioning,” they may be difficult to identify.

Promoting Lawyer Wellness

A firm will only benefit from promoting healthy habits to its employees. A few examples on how to accomplish that goal are:

  • Hire speakers and provide materials about wellness and balance.
  • Provide education for all employees covering stress, depression, anxiety, alcoholism, sedatives and burnout.
  • Host events that are nonalcoholic.
  • Host retreats where participants focus on learning stress reduction, relaxation, meditation and team building.
  • Set a maximum for billable hours and lower the minimum.
  • Enact specific policies that will allow employees to seek treatment for addiction or mental health issues without fear of losing their positions.
  • Create and enforce a back-to-work policy that will keep the employee accountable throughout his or her recovery.

A Model Policy

The New York State Bar Association has penned a new model policy for law firms. Each firm will have different needs, however, depending on its size, setting and available resources. The bar designed this policy to “augment broader policies that cover work conduct, disciplinary procedures, paid leave and health insurance benefits.” It’s essential that each firm recognizes that early intervention is key to the most positive outcomes.

This model policy applies to the legal professionals who work in law firms or legal departments. The policy includes, but is not limited to, partners, associates, managing attorneys and paralegals.

Each law firm agrees to assist legal professionals who either voluntarily seek assistance or are directed to as a result of poor work performance. The firm will permit the attorney in question to take the time needed for his or her recovery using paid time off, a leave of absence or other accommodations depending on what policies each firm already has in place concerning leave.

It’s vital that an attorney provides the highest possible level of service to his or her client. If an attorney is impaired due to depression, other mental health issues, alcoholism or drug abuse, this is quite likely impossible. Under the policy the following are among behaviors that should not be tolerated:

  • Frequent absences or tardiness.
  • Failure to show up to meetings on time and other attendance issues.
  • Failure to timely return phone calls.
  • Failure to meet deadlines.
  • Mistreatment or disrespect of colleagues or staff.

If there is an attorney in the firm who struggles with an impairment, the firm should encourage that person to seek assistance through an Employee Assistance Program or a local lawyer assistance program. If they refuse to seek treatment or follow through, the person will be subject to law firm discipline, up to and including termination.

Confidentiality.

The majority of the respondents to the 2016 ABA study noted that they did not or would not seek treatment because of confidentiality concerns. So it’s very important that the law firm take every precaution to ensure that the person in question maintains his or her privacy.

Each firm should designate one person in a department to assist any impaired attorney who seeks out help. That designee should help with insurance coverage, treatment payment, covering for matters concerning the attorney’s clients and return-to-work agreements.

Education.

Each law firm must also dedicate itself to providing continuing education to all legal professionals. It’s important that when a firm implements this policy it ensures that attorneys have access to education related to stress reduction, work/life management and other topics that support continued outstanding performance on the job.

Prohibitions and consequences.

The New York State Bar Association model policy states that legal professionals are “prohibited from on-the-job impairment from alcohol or controlled substances.”

Return-to-work agreements.

Depending on the firm and the circumstances of the attorney in question seeking treatment, a return-to-work agreement may be necessary. Such an agreement should include:

  • Verification that the individual participated in a treatment program.
  • The person’s commitment to stick to the program and participate in aftercare.
  • Commitment to alcohol or drug screenings when appropriate.
  • Authorization from the person within the firm designated to oversee the case.
  • An understanding that a person who violates the return-to-work agreement will result in “immediate sanctions.”

According to Eileen Travis, the long-time director of the City Bar of New York’s Lawyer Assistance Program, just over the past year the invitations that program has received to provide presentations at large law firms have surged.

The Path to Lawyer Well-Being report and the Well-Being Toolkit for Lawyers and Legal Employers, created by the ABA’s Working Group to Advance Well-Being in the Legal Profession, play a significant role, encouraging firms to bring awareness about alcohol, substance use and mental health issues to law firm staff. “Our initial presentations open an important discussion, and now we are receiving requests to do a series of wellness workshops from some of the firms,” Travis says.

Another factor for the increase in invitations is the substantial number of articles in the New York Law Journal highlighting lawyers, judges and family members affected by alcohol and substance use and mental health disorders.

The Health Improvement Pledge

Most recently the ABA launched a campaign to improve the health of lawyers. The primary vehicle for the campaign is a pledge that calls upon legal employees to actively engage in improving the health of lawyers.

The pledge outlines seven steps legal employers can take meet this challenge, including:

  1. Providing educational opportunities.
  2. De-emphasizing alcohol at firm events.
  3. Developing partnerships with outside entities to reduce the problems (such as lawyer assistance programs).
  4. Providing confidential access to mental health and addiction experts for all employees.
  5. Developing a written protocol and leave policy that covers assessment and treatment of substance use and mental health problems.
  6. Promoting help seeking and self-care as a core value.
  7. Adopting this well-being framework will help attract and retain lawyers and staff.

Although firms have been reluctant to adopt a model policy, we believe this pledge is an opportunity for legal employers to create a policy that addresses many of the same issues as the model policy.

According to Travis, thus far 42 firms and one corporation from around the country have signed the pledge. Progress is being made.

Thomas E. Schimmerling

Thomas E. Schimmerling, in recovery for more than 30 years, is the current chair of the New York State Bar Association’s Lawyer Assistance Committee and co-chair of the Broome County Bar Association Lawyers Assistance Committee. nytrialman@aol.com

Entity:
Topic: