Substance and Other Addictions in the Legal Profession
Anne Chambers, LCSW and Anne McDonald, JD
How Common are Substance Concerns?
According to the National Council on Alcohol and Drug Dependence or NCADD, alcohol is the most often used addictive substance. One in 12 adults faces an alcohol concern; several million more engage in risky drinking. The Substance Abuse and Mental Health Services Administration (SAMHSA) reports an 8.8% rate of substance use disorders in the US. Alcoholism ranks as the 3rd leading lifestyle related cause of death in the United States. Half of adults report a family history of problem drinking.
NCADD estimates that 20 million Americans used an illegal substance in the past month. Illicit drugs include substances like marijuana, hashish, methamphetamine, cocaine, heroin and so forth. Marijuana appears to be the most commonly used illicit substance at this time. Currently we are hearing a great deal about the problem of prescription addiction in our country. Accidental addiction occurs when a person receives treatment for a specific medical concern with a valid prescription and becomes addicted over time. Some accidental addicts see multiple physicians to obtain additional prescriptions or turn to illegal substances over time. NCADD estimates of the total overall costs of substance abuse in the US exceed $600 billion per year.
Substance Concerns in the Legal Profession
Attorneys have above average rates of substance concerns, depression and suicide. The incidence of lawyer substance concerns, particularly alcohol concerns, is high. Alcohol continues to be the most frequent problem chemical for legal professionals. A recent landmark study titled “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys” was published in the January/February 2016 edition of the Journal of Addiction Medicine. It summarizes the results of a 2015 study by the Hazelden Betty Ford Foundation and the ABA Commission on Lawyer Assistance Programs, providing valuable insights regarding the current state of mental health among attorneys in our country.
Attorneys completed survey measures assessing alcohol use, drug use and mental health symptoms. Data was analyzed on a final sample of over 12,000 licensed attorneys working in the legal field.
Over 11,000 attorneys completed a 10 item self-report tool to screen for hazardous use, harmful use and potential dependence. One in five screened positive. Findings included a significantly higher proportion of positive screens among men, younger lawyers and those working in field for shorter duration. Over 22% of the participants reported they felt their use of substances was problematic at some point in their lives. The largest chunk reported the concern presented during their first 15 years of practice.
Responses were limited on the self-administered drug abuse screening test. Most were identified as low risk. One in five appeared to be at intermediate risk and one in 33 appeared to be at substantial risk. Of those reporting use of a specific substance group within past year, the highest weekly rates were stimulants, sedatives, tobacco, marijuana and opioids, in that order.
About 7% of participants reported past treatment for alcohol or drug use. One in five reported they had participated in a treatment program specifically tailored to legal professionals. This group had significantly lower substance use than those who attended a more general program. Participants reported barriers to treatment as not wanting others to find out they needed help and concerns about privacy or confidentiality.
Warning Signs of a Substance Concern
Substance use disorders involve a pattern of substance use leading to trouble or distress, often including failure to fulfill obligations or use in hazardous situations. Some general signs and signals of a substance concern include protecting the supply, substance use becoming the main event, blackouts, unexplained injuries, delayed treatment, fine tremors, tardiness and insisting on being just fine. The person impacted sometimes experiences legal problems, financial problems or goes through a lot of vehicles. Frequent high consumption is a signal of a substance concern. Binge drinking is also a common pattern. On the moderate to severe end of the continuum use continues in spite of worsening adverse consequences. Tolerance can develop, where the person takes more of the substance to get the desired effects just to feel normal or to avoid withdrawal. By then there have often been failed attempts to cut down or control use. The person affected starts to devote substantial time to drinking or using at the expense of other activities.
Professional risks of unaddressed substance problems include mistakes, absenteeism, missed deadlines, missed court dates, lost clients and damage to reputation. If problems are addressed, performance returns to normal. Solo and small firms may start to see fewer clients and less income so a financial crisis may occur. According to Fieldblum, Batchelor and Carlton, professional warning signs of a substance concern can include impaired ability to perform fiduciary duties, failure to file court papers or responses, declining work hours, little work achieved after lunch. There may be greatly reduced revenue production, frequent long weekends, late arrivals and early departures. Additional warning signs include missing appointments or scheduled court appearances, neglecting correspondence and phone messages, missing other deadlines and trust fund problems.
Could an unaddressed substance problem put an attorney at risk? Yes. Studies in US and Canada estimate that 50% of discipline prosecutions and 60% of malpractice claims involve alcoholism. The rigors of law require strong focus. Concentration is critical. With substance abuse, focus can be diverted elsewhere and the risk of errors is compounded. Lack of communication and lack of diligence are among the most common ethical complaints clients tend to make about attorneys year after year. Serious, unaddressed substance abuse and mental health concerns can have a negative impact on communication and diligence in particular. When a lawyer loses control to addiction, colleagues and clients may suffer as well. We’ll break it down a little further.
Marjorie Silver and Wendy Patrick looked at the frequency of disciplinary concerns among attorneys with substance problems. Approximately 40-70% of attorney discipline proceedings and malpractice allegations are linked to alcohol abuse or mental illness. Oregon’s Professional Liability Fund determined that more than 50% of the attorneys admitted to its alcoholism treatment program had already been sued for malpractice. Surveys taken in New York and California revealed 50-70% of all disciplinary cases involve alcoholism. Seventy five percent of attorneys who sought help with substance abuse problems in California in 2008 were also involved in disciplinary proceedings. Some states allow addressing a substance or mental health or substance concern to be considered as a mitigating factor for attorneys facing disciplinary action.
Indiana Lawyer Assistance Program Director Terry Harrell and Texas Lawyer Assistance Program Director Bree Buchanan described early and late stage impact of addictions along professional, legal and ethical domains. Early professional concerns include unreturned phone calls, being late for depositions, cancelled appointments, numerous sick days or client neglect. Late stage concerns include failure to come to the office or appear for hearings, appearing intoxicated or under the influence in court, unprofessional appearance or hygiene, inappropriate mood and abandonment of one’s practice. Early legal concerns include first time DWIs, open container or disorderly conduct charges. Later there may be more DWIs, controlled substance charges, domestic violence, open container or disorderly conduct violations. Early ethical challenges may include being late for hearings, technical trust violations and last minute filings as diligence slides. Late stage difficulties may include substantive trust violations or misappropriation, statute of limitations violations or dishonesty to tribunal.
Here are examples of things that have led to attorneys receiving sanctions nationwide: public intoxication, driving while under the influence – with or without injury to others, felony DWI conviction, engaging in violent behavior while under the influence, threatening violent behavior while under the influence, improper handling of client funds due to substance abuse, improper handling of professional duties due to substance abuse, appearances in court while under the influence and appearances at client conferences while under the influence.
Recovery is a Risk Reducer
In 2002, Michael Sweeney, Oregon Attorney Assistance Program Attorney reported the findings of a study that confirmed that lawyers in recovery have low claim rates. The study followed 55 attorneys, comparing malpractice claims and disciplinary complaints during 5 years before sobriety and 5 years after. Not surprisingly, the group was clearly at above average risk of professional trouble before recovery. What is most interesting is that the group started to have an edge later, with complaints and malpractice claims dipping a bit lower than average.
|5 years before sobriety
||5 years after sobriety
During that time frame, average complaint rate for attorneys in the state was 9%. The attorneys had an annual complaint rate of 28% before sobriety and 7% after. The malpractice claim rate for attorneys in the state was 13.5%. The rate of malpractice claims was 30% before sobriety, and 8% in recovery.
A number of treatment centers across the country offer attorney or professionals tracks. The range of treatment options includes inpatient, outpatient, intensive outpatient and individual therapy. Online options are new to the scene but offer less support. After inpatient or residential treatment, follow up services are critical. The first year of recovery is challenging. Many find it important to combine attendance at 12 step meetings with therapy and other aftercare programming. To repair relationships, eventual participation in additional treatment such as marital or family therapy is common. Lawyer Assistance Programs can play a key role in helping judges and attorneys get started on the road to recovery, in aftercare, and in offering ongoing support.
Rule 16 of the Missouri Supreme Court established the Intervention Committee, which relates to substance abuse intervention.
Court related community resources include substance abuse traffic offender programs and specialty treatment courts such as substance courts, veterans’ courts. The VA health system offers veterans extensive services to treat a variety of addictions.
Twelve step and related supports play an important role in long term recovery. Many are accessible all over the nation. The most commonly known support groups are Alcoholics Anonymous, Narcotics Anonymous, and Smart Recovery. SOS has a secular focus. Dual Recovery Anonymous and Dual Diagnosis Programs offer support to persons facing both a substance concern and a mental health concern. International Lawyers in Alcoholics Anonymous or ILAA is a group of recovered lawyers and judges carrying the message of recovery within the legal profession. It aims to serve as a bridge between lawyers or judges and Alcoholics Anonymous.
There are a number of support groups for people affected by the addiction of a family member, loved one or close friend, whether the loved one is still drinking or not. Al-Anon Family Groups offer support to those impacted by the drinking of someone they love. Nar-Anon Family Groups offer support to those affected by drug or other substance concerns. Adult Children of Alcoholics offers support to those affected by the drinking of a parent. Each of their websites has find a meeting features, and the Al-Anon and Nar-Anon sites also have information for teens. In support groups, family members can learn valuable coping skills, how to leverage a crisis and offer natural consequences that help guide loved ones toward recovery in a loving, respectful manner that honors their limits, protects personal integrity and that of the family unit.
The National Council on Alcoholism and Drug Dependence was founded in 1944 and is an advocacy group fighting the stigma attached to addiction. The NCADD website has a section for family members. It offers information on signs and symptoms of addiction, helping a family member or friend, recovery stories, not giving up hope, talking to children, and prevention tips for parents and intervention.
Employee Assistance Programs are designed to help workers address a wide variety of personal concerns ranging from addictions to mental health concerns, marital problems or personal improvement. Many large companies often offer an EAP benefit. EAPs generally cover personal concerns for the employee or any member of the household. Most cover a certain number of sessions of therapy per family member per year per problem before insurance is billed, making them an inexpensive way to start receiving professional help. Services can be accessed by calling the EAP number. Staff members usually ask questions to clarify the caller’s concerns, and then connect the caller with resources to help them address the problem.
Several other behaviors have been identified as medical conditions that have led to ethical violations. In particular, gambling, sex addiction and eating disorders have been observed in lawyers, some of whom have worked with lawyer assistance programs. All three can be very serious and in extreme circumstances, threaten careers and/or lives.
The term gambling addiction has long been used in the recovery movement. Pathological gambling was long considered by the American Psychiatric Association to be an impulse control disorder rather than an addiction and at one time was classified under the obsessive-compulsive disorders. The DSM-5 has re-classified it as an addictive disorder, with sufferers exhibiting many similarities to those who have substance addictions. A riveting case study of the impact of this problem is offered by Michael Burke, author of Never Enough. Mr. Burke’s book describes how he lost everything, including his law license to gambling.
Sex addiction is treated somewhat differently. The most recent edition of DSM V rejected hypersexuality as a diagnosis. In 2011, the American Society of Addiction Medicine, the largest medical consensus of physicians dedicated to treating and preventing addiction, redefined addiction as a chronic brain disorder which broadened the definition of addiction from substances to include addictive behaviors and reward-seeking, such as gambling and sex. Sex addiction can threaten careers because it can lead to criminal charges, painful publicity and disbarment. One of the most challenging aspects of sex addiction is that it is usually well hidden and so others don't often see some of the symptoms that could be a red flag for an intervention. When symptoms are seen, they may not be recognized as indicative of sex addiction. Often the signs of concern may be a report of an arrest or serious work crisis.
Anorexia is an eating disorder characterized by significantly low body weight, restricting caloric intake, strong fear of gaining weight and distorted body perception. Bulimia nervosa is a condition associated with binge eating. Sufferers self-induce vomiting, misuse laxatives, diuretics or enemas or use other methods like fasting, strict dieting or compulsive exercise to rid themselves of calories and prevent weight gain. These conditions can cause serious health problems and require special care. Preoccupation with weight and controlling caloric intake can distract from work and make it difficult to take care of business. While rarely causing disciplinary problems, these concerns can cause people to step away from careers while fighting to restore physical and mental health.
Lawyer Assistance Programs
Almost every state in the US has a Lawyer Assistance Program. Several provinces in Canada do as well. Often referred to as LAPs, Lawyer Assistance Programs are broad brush programs to assist attorneys with a variety of matters such as substance concerns, mental health concerns, stress management, coping with grief, adapting to life changes and other personal concerns. While each program is specific to the needs of its home state, services are generally free or provided at low cost. Lawyer assistance programs serve lawyers and judges; some also serve law students or immediate family members of bar members. Examples of services include assessment, referral, counseling, support, peer volunteer connections or intervention. Check out your state’s program for specifics. Substance concerns are one of the most common concerns lawyer assistance programs help attorneys address. We are seeing a continued increase over time in members of the legal professions seeking assistance for depression, anxiety and other mental health concerns.
A directory of Lawyer Assistance Programs can be found on the ABA Commission on Lawyer Assistance Programs website at www.americanbar.org/groups/lawyer_assistance/resources/lap_programs_by_state.
Resources you may find on individual state lawyer assistance websites include information about the program, services provided, confidentiality, and articles for personal growth, informational videos, and self quizzes. Some states include additional resources. For example, Missouri’s site includes a Model Policy for Law Firms Addressing Impairment which was endorsed by the Missouri Bar Board of Governors on November 22, 2013.
The typical person who contacts a lawyer assistance program is not an attorney in trouble but is a successful practicing attorney. Lawyer Assistance Programs do not have any disciplinary authority. From time to time official agencies request assistance for a person who is already involved on those offices. Lawyer assistance programs are not out there to get or report people. They are out there to help and are there if and when you need them. Lawyer Assistance Programs are free or low cost, and confidential.
Co-occurring conditions are common. According to the National Alliance for Mental Illness or NAMI, one in three people with mental illness report also having substance concerns. Similarly, one in three people dealing with alcohol concerns report they also have a mental illness. Half those with severe mental illnesses report substance abuse, and half those using illicit substances report also having a mental illness. Substance and mental health disorders can interact. When someone with a mental health concern drinks or uses, psychiatric medications may not be as effective, exacerbating symptoms. The risk of arrest multiplies when both problems are present and untreated. Men, veterans, people living in poverty and those facing more health problems appear to be at greater risk of dual diagnosis.
- Buchanan, Bree and Harrell, Terry. “The Myths and Mysteries of Substance Abuse.” Attorney Protective, 2014.
- Commission on Lawyer Assistance Programs, American Bar Association Website, www.americanbar.org/groups/lawyer_assistance.
- DSM-5: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. American Psychiatric Association, Washington, DC, 2013.
- Fieldblum, Chai; Batchelor, Cydney; Carlton, Richard. “Tattletale or Head of the Class, Which are You? A Lawyer’s Obligations for Report Drug or Alcohol Abuse,” EEO/Ethics Joint Mid-Winter Meeting, PowerPoint, March 23, 2012.
- Foster, Ann D, JD and Jones, Don, JD. “Lawyer’s Health: The Impact on Client Protection Funds, Presentation to 16th National Forum on Client Protection, New Orleans, LA, June 3, 2000.
- Gotschall, Charles, JD. “Aging and Addicted Attorneys: Ethical Implications and Difficult Conversations, Power Point, 9/15/11.
- Healy, Peg. “Help for Addicted Attorneys,” California State Bar, CLE Self Study, 2003.
- Jay, Debra. No More Letting Go. Bantam Books, 2006.
- Krill, Patrick R. JC, LLM; Johnson, Ryan, MA and Albert, Linda, MSSW. “The Prevalence of Substance Use and Other Mental Health Concerns among American Attorneys,” Journal of Addiction Medicine, http://journals.lww.com/journaladdictionmedicine/pages/currenttoc.aspx, Vol.10 (1), Jan/Feb 2016, pp. 46-52.
- Mayo Clinic Staff, Anorexia Nervosa Overview, http://www.mayoclinic.org/diseases-conditions/anorexia/home/ovc-20179508, site last visited 3/8/17.
- National Alliance for Mental Illness, “How Common is a Dual Diagnosis?” www.nami.org, site last visited 8/31/16.
- National Council on Alcoholism and Drug Dependence, “Signs and Symptoms,” www.ncadd.org, site last visited 8/26/16.
- Patrick, Wendy. “Dealing with Substance Abuse,” California Lawyer, www.callawyer.com, July, 2010.
- Silver, Marjorie A. “Substance Abuse, Stress, Mental Health and the Legal Profession,” www.nylat.org/documents/CourseinaBox.pdf, New York State Lawyer Assistance Trust, 2004.
- Sweeney, Michael J., Oregon Attorney Assistance Program Attorney, In Sight, Issue 46, April 2002.