Alcohol & Drug Addiction Treatment for Lawyers: Part I an Introduction
Jane and David recently filed for divorce. They have two small children, Dylan and Maddie. Both parties have retained legal counsel and are fighting for custody of their kids. Recently, David became suspicious that Jane’s new boyfriend might be abusing the children. He phoned his attorney and demanded that the attorney seek immediate, emergency, full custody of the kids in order to protect them from the new boyfriend. The attorney sent notice to Jane’s attorney regarding a hearing and, when opposing counsel failed to show for the early-morning hearing, the judge awarded sole custody to David until further notice. Jane will have to wait at least three months in order to have a formal hearing on permanent custody status. During this time, she will not have access to Dylan and Maddie. It will be revealed that nothing improper was occurring between the new boyfriend and the children. However, we will also learn that David hits Dylan when he is angry.
Why did Jane’s attorney fail to show up to the hearing? It turns out that she slept right through her alarm clock. Having had his fill of the attorney’s constant lackadaisical regard for his courtroom and his calendar, the judge refused to rescind his order or grant a continuance when she finally showed up after lunch. Jane will likely have a malpractice claim against her attorney and, at the very least, should report the attorney to the State Bar. Given the history between this attorney and the judge, perhaps the judge will report her as well. Such a dereliction of duty may result in the attorney being suspended or losing her license to practice law. Not only will this require her other clients to find new counsel to handle their cases, which could be costly and harmful to them, but it will likely destroy the attorney’s career.
But what if it turned out that the attorney slept through her alarm on the morning of Jane’s hearing, and on the mornings of all of the other missed hearings, because she is an alcoholic or depressed? Should she be subject to the same disciplinary system as attorneys who steal client funds or commit fraud? If she admitted her alcohol abuse prior to Jane’s hearing, and entered a treatment center voluntarily, would word have gotten out that she was an alcoholic and ruined her practice? These are issues that currently plague State Bar associations and attorney disciplinary bodies who must reconcile the competing interests of encouraging attorneys to voluntarily seek treatment for alcohol and drug addiction or depression without ruining their careers, against the need to protect clients such as Jane, Dylan, and Maddie.
Studies show that there is a direct correlation between attorney alcoholism and malpractice or discipline. It is estimated that 60% of all disciplinary actions and malpractice claims involve an attorney who is addicted to alcohol. Given that depressed individuals are more likely to avoid communication with others, disregard deadlines, fail to get up in the morning, and become apathetic toward keeping appointments or life in general, it is no surprise that depression also makes an attorney vulnerable to malpractice or discipline. Case deadlines get missed, clients become angry when unable to communicate with their attorney, and entire cases are lost when an attorney is not paying attention to the minutia of the practice of law.
The harm associated with undisclosed alcohol and drug abuse or depression in the legal community is not limited to those particular clients who are directly affected by attorney incompetence or misconduct. The nature of the adversarial process hinges on the idea that each party is competent and knowledgeable about the case and the legal principles upon which the case hinges. When the scales tip in favor of one party simply because opposing counsel has a drug or alcohol problem, the system not only breaks down, but loses respectability and predictability. The public, as a whole, no longer trusts that justice will or can prevail.
In a perfect world, the answer would be to develop a system where lawyers who are suffering from alcohol and drug addiction could seek confidential help while insulating clients from potential harm. For instance, a solo attorney would feel comfortable picking up the phone and requesting that the State Bar transfer her case load to a qualified back-up attorney because she needs to enter a treatment center, telling the clients that a “medical issue” came up. There would be unlimited financial resources to pay for the treatment center, as well as the income that the lawyer would lose while not working. Or, in the alternative, the lawyer would be able to continue working under the supervision of a monitor and enroll at an outpatient treatment center or a treatment center where patients live in the facility but are allowed to leave for work.
However, as we do not live in a perfect world, the above scenarios seldom play out. A characteristic shared by both substance abuse and depression is the inability of the inflicted individual to see that there is a problem while there is still time to treat the issue with minimal harm to career or client. This burying of the head in the sand is intensified by the strong, type “A”, personality shared by many attorneys who either will nor or cannot admit that they have lost control over a situation and need to enter a treatment center or treatment program for help. In addition, other attorneys, judges, or members of the legal community are loath to “rat out” a colleague to the State Bar as they understand that careers can be ruined when the Bar becomes involved. Also, clients seldom realize that there is a problem until it is too late to do anything about it, often trusting that the attorney knows what he or she is doing, even in the face of seemingly bizarre behavior or an utter lack of communication.
Even lawyers who recognize that they should start avoiding those late drinking lunches and start searching for addiction treatment centers rarely do so voluntarily. Some lawyers believe that the stigma involved in being deemed an “addict” or “depressed” will negatively affect their career if clients, potential clients, or colleagues were to find out. And they are probably right. Also, especially with solo practitioners, the attorney will be unable to pay the bills if he or she takes 30 or 60 days to enter a treatment center, even if the cost of that treatment were covered by health insurance.
Instead of seeking badly needed rehab, attorneys continue to live and work with their alcohol and drug addiction until they hit rock bottom, often taking clients down with them. By the time the State Bar becomes involved, the authorities are unable to overlook instances of incompetence or malfeasance and thus, even if enrolling in a treatment center becomes part of the discipline plan, the attorney’s record with the Bar will not remain unscathed. Lives can be harmed or, in the case of criminal defense attorneys, even lost due to a lawyer’s depression or addiction.
Millie Anne Cavanaugh, Esq. is a Los Angeles immigration lawyer and former insurance defense attorney. She is licensed to practice law in California and Massachusetts. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.
This is the first in a series on addiction treatment for attorneys.
