Rehabilitating Impaired Lawyers
What do you do when a lawyer who is being investigated for breaking the rules of professional conduct claims that alcohol, drugs, and/or depression are a major cause of the problem?
Do you ignore these potentially mitigating factors and punish the lawyer to the fullest extent of the law, or do you aim to rehabilitate the lawyer?
California's State Bar Court has since 2002 been trying to do a little bit of both. It set up an Alternate Discipline Program, the first systematic effort to combine attorney discipline and substance abuse and mental health treatment.
The State Bar Court Alternative Discipline Program (ADP) represents the first comprehensive program in the United States for addressing the identification, assessment and treatment of substance abuse and mental health problems of respondents in the discipline process. The ADP is designed to protect the public, the courts and the legal profession, while respondents with substance abuse or mental health problems receive treatment.
The Alternate Discipline Program works in conjunction with the State Bar of California's Lawyers Assistance Program. The Lawyers Assistance Program is in many ways similar to the mental health programs that are made available to employees of large corporations. The employee (or in this the lawyer) can access to treatment services on a confidential basis, without informing his employer. Given the stigma that is too often attached to mental health issues, assistance programs are a smart and necessary way to get people to get the help they need.
The primary difference between the ADP and the Assistance Program is that the ADP applies to lawyers who are facing formal disciplinary charges. According to the State Bar's own statistics, about 90% of those formally charged end up being disciplined in some way. Thus, the ADP program is analagous to providing drug, alcohol, and mental health treatment to people who are being prosecuted for criminal violations.
Moreover, the anecdotal evidence suggests that lawyers who go through the ADP program receive less severe punishments than other lawyers who are facing formal disciplinary charges. In fact, some law firms that help defend lawyers facing discipline charges promote their ability to help lawyers "qualify for the Alternative Discipline Program and assist [them] in lowering your level of discipline." According to the State Bar's 2009 Annual Discipline Report, approximately 50 lawyers were referred that year to the Alternative Discipline Program. That's roughly ten percent of the cases in which the State Bar of California filed formal complaints in 2009. So it's not as if a huge amount of cases are being diverted to the Alternative Discipline Program. But neither the State Bar nor the State Bar Court appear to publish information showing how much more lenient is the Alternate Discipline Program. The odds are good that at least some attorneys who may have otherwise been suspended received a public warning or an even milder form of punishment because they were being rehabilitated. It's also possible, and more problematic, that some lawyers avoided disbarment because of their participation in the Program.
As a client, you generally need lawyers to help you with some important aspect of your life. Thus, if you find out that your California lawyer has been previously disciplined, you should ask them whether they were part of the Alternate Discipline Program or had any connection with it. I don't advocate that you automatically refuse to work with a lawyer who was in the Program. It is, however, a relevant and important factor to consider. You should, therefore, discuss the situation with the lawyer, and assess how they seem to be handling what was at one point a major problem.
An Epidemic of Attorney Depression
Lawyers With Depression is an important and courageous website. Its mission is to help lawyers with depression and was started by a lawyer with depression. Among other things, the site collects the volumnious research that shows that lawyers disporportionately suffer from depression. For reasons that are not widely understood and which are still being examined, lawyers seem to be more vulnerable to depression than a vast majority of people. Here is just one statistic from the site that makes clear just how prevalent depression is in the legal community.
A 1990 Johns Hopkins study looked at 104 occupations to see which professions suffered from the highest rates of depression. Lawyers topped the list (when adjusted for socioeconomic factors). and were found to suffer from clinical depression at a rate of almost four times that of the norm.
This fact creates a real and potentially heart-wrenching dilemma for clients. On one hand, lawyers are hired to help people resolve some of the most difficult issues in their lives. When you hire a lawyer you may be putting your life, liberty, and property in their hands. This is no place for an impaired person and the wisest cause of action as a client is to run away as fast as you can from a depressed lawyer.
On the other hand, depression is increasingly treatable and many lawyers manage to perform professionally even when they are depressed. Moreover, clients may be in a position to help their lawyers deal with some of the stress and pressure that comes with the job. The attorney-client relationship can be resilient; at its best it transcends the relationship between a typical service provider and a typical customer. This is no place for a bright-line rule that condemns every lawyer with depression.
Both of these points of view have merit. There are times when, as a client, it may not be prudent to work with a depressed attorney. There are also times, perhaps a majority of the time, when the lawyer's depression isn't imapcting the quality of their work on your behalf. I therefore suggest that you focus on the lawyer's conduct, not their status. If your attorney isn't returning phone calls and it turns out that depression is a cause of their their lack of responsiveness, you have a difficult decision to make about whether you need to find a different lawyer. But if you are generally pleased with your lawyer and you happen to find out they are dealing with depression, think twice about making a change.
There are no easy answers as to what a client should do when they find out that their lawyer is dealing with depression.
Twenty years ago I worked as human resources manager at a teaching hosiptal. One of the emergency room nurses had a cocaine problem. She completed a well-regarded drug treatment program and sought to be reinstated.
I agreed with the hospital's argument that it was just too risky to allow her to return to the operating room; they offered her another nursing position. The nurse's union filed a grievance.
I don't recall how the grievance was resolved, but that situation informs my analysis of how to deal with lawyers who are suffering from depression. If you are hiring a lawyer to do potenetially life-changing work—the equivalent of being in an emergency room—it's risky to give the lawyer the benefit of the doubt. Otherwise, I suggest that you monitor the lawyer's work closely and strongly consider continuing to work with them.
When Things Go Wrong With Your Lawyer
Lawyers don't return your phone calls or emails. This is the most common complaint clients have. There are many reasons why this happens--poor time management, lack of a customer service orientation, and poor training--to name just a few. There are three additional recurring reasons for this lack of responsiveness. Alcohol, drugs, and depression. If your lawyer is habitually not responding to you, at a minimum, you should consider that he or she may have a drug or alcohol problem or suffers from depression. Lawyers suffer from these problems at riduculously high rates. This is one of the dirty legal secrets of the legal profession; it's discussed fairly freely among lawyers and mental health professionals, but rarely with the outside world. This site will discuss this issue in great detail. The dirty laundry will be aired; the extent of alcohol, drug, and depression problem will be analyzed. For now just realize that alcohol, drugs, and depression impact lawyers to a degree that a vast majority of non-lawyers do not begin to imagine.
