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.
Categories: Drug Use By Attorneys | Categories: Attorney Discipline | Categories: California Lawyers | Categories: Depression and Mental Health Issues | Categories: When Things Go Wrong With Your Lawyer | Permalink
