By David J. Azotea, Esquire
The anecdotes are all too familiar for those of us within the legal community. The law student—top of his class, federal clerkship, youngest partner at his big law firm. On the surface, this young partner seems to have it all: the car, the house, the loving family, and the firm’s adoration. However, when the surface is scratched, the beast rears its head. No longer can the young partner handle the daily stresses: his desk overflowing with paper work; impossible to meet deadlines, hundreds of new e-mail every hour; the constant pressure to generate new business. This young partner turns to his vices telling himself it’s just a way to “take the edge off.” Little by little the substance addiction begins to take its toll. His work is initially exceptional, but problems soon arise and colleagues begin to notice a slip in his work. He arrives at the office late and leaves early. He begins losing documents. His exceptional work is now marred with indolent mistakes. The young associates that initially idolized him now cover for his mistakes, too tremulant to intervene. The senior partners stand silent, not wishing to offend one of the firm’s big up and comers. Finally, a concerned colleague intercedes; however, this is an addict in denial, a partner who refuses to admit he has a problem. Shortly thereafter, the young partner reassures the colleague that he has everything under control. But sure enough, he doesn’t. Within another year his family and co-workers are mourning his untimely death, asking “what could we have done?”
While not every addiction scenario plays out fatally, the statistics of substance abuse and other addictions are startling. Addictions can vary greatly and can include alcohol and drug abuse, gambling, eating disorders, financial issues (i.e. overspending) and various other types of abuses. For purposes of this article, the discussion will center on substance abuse, as statistics show it is the most prevalent addiction among attorneys. It is estimated that between 10 to 13 percent of the general adult population in America suffers from alcoholism. Among lawyers, that rate is higher. More than one third of attorneys say they are dissatisfied and would chose another profession if they could and it is estimated that one fourth of all attorneys are depressed. As lawyers, we all remember the speech when we began law school that attorneys have the highest rates of depression and suicide of any profession. In fact, among male lawyers, the suicide rate is approximately twice that of men in the general population. The depression rate for female attorneys is even higher.
For law firms these staggering statistics can bring about significant legal liability. Lawyers with substance abuse problems are far more likely to have disciplinary complaints or malpractice suits filed against them. Substance abuse may be involved in as many as 50 to 75 percent of major disciplinary cases, and state bar statistics show that 75 percent of attorneys who sought help with substance abuse in 2008 were also involved in disciplinary proceedings. In turn, lawyer partners and law firms generally can be subject to liability through respondeat superior. If an attorney is having these types of problems and no one in the firm addresses the issue, the firm may face significant malpractice liability. Evidence of substance abuse is relevant in a malpractice case, especially when that abuse translates into conduct falling below the applicable standard of care. Given the practical concerns for the firm it is imperative that law firms deal with potential addiction issues.
As members of the bar, lawyers have a duty to uphold the highest standards of professional conduct. The ABA model rules make clear that firm members have a duty to make reasonable efforts to ensure the ethical conduct of all lawyers in the firm. Members who possess knowledge of misconduct must inform the appropriate disciplinary agency. Failing to report evident substance abuse issues is a clear violation of the Rules of Professional Conduct. The ABA has recommended that when an impaired lawyer is unable or unwilling to deal with the consequences of addiction, the firm and its partners are obligated to take reasonable steps to assure his or her compliance with the ABA Model Rules. The firm’s “paramount obligation is to take steps to protect the interests of its clients.”
For far too long, law firms have been reluctant to deal with impaired attorneys even though involvement may be career and life saving. In this day and age, addiction need no longer be treated as taboo. It is absolutely essential that law firms work diligently to institute effective addiction policies that are narrowly tailored to the firm’s specific setting with an emphasis on helping the at-risk individual manage and overcome his or her addiction issues. This policy should be outlined in the law firm’s code of professional responsibility in order to send a resolute message that the firm considers work or personal habits that undermine work quality to be professionally irresponsible and a violation of ABA Model Rule 1.1 relating to attorney competency. It should outline what the firm deems acceptable social practice, as well as other preventive measures. The focus of the policy should not be on punishing attorneys for addiction problems, but to provide identification and education, as well as outlining treatment possibilities. The firm once viewed its now impaired attorney as an asset, and as such the firm should always strive to help rehabilitate the impaired attorney, rather than punish. The firm must attempt to develop awareness of substance addiction and the behavioral signs of attorney impairment. To do so, the firm should host educational seminars. Larger firms should also consider appointing an in-house committee with individual committee members acting as a resource for struggling attorneys. Additionally, the firm should not wait for individuals to refer themselves for assistance, but should take proactive steps to intervene upon discovery of an attorney suffering from addiction. The firm should refer the attorney to a medical professional and require the impaired attorney to undergo treatment. The firm must then continue to monitor the attorney’s progress and ensure that his health and work product improves.
One of the greatest assets for law firms in assisting attorneys with addition problems is their state Lawyer Assistance Programs (LAP), which provide free and confidential assistance to attorneys with addiction, behavior, and personal problems that affect their well being and professional performance. The ABA created the Commission on Impaired Attorneys (now the Commission on Lawyer Assistance Programs) in 1988, and in 1995, the ABA adopted the Model Lawyer Assistance Program. While an in-house firm committee may be able to recognize that one of their associates or partners is impaired, these committee members likely are not well adept at treating addiction. A LAP can be an important source for helping the attorney. The firm can refer the impaired attorney confidentially and anonymously to the LAP so that the impaired attorney can obtain the proper professional services, receive intervention, and obtain peer guidance and support in the form of group counseling. Thereafter, the LAP can continue the assistance by monitoring the attorney’s recovery and progress. In fact, the LAP approach of “lawyer-assisting-lawyer” is consistent with the highest traditions of the bar.
Clearly, attorney addiction is a serious problem. However, as the research has shown, addiction is treatable. Therefore, if firms take a proactive approach to implementing addiction assistance through their own measures as well as using the resources of the LAP, the impediments to a meaningful life and promising career caused by addiction can be overcome.
David J. Azotea, Esquire, is an associate at Levine, Staller, Sklar, Chan, Brown & Donnelly, P.A. in Atlantic City, New Jersey, focusing his practice on commercial and employment litigation. He also serves on the New Jersey State Bar Association Special Committee for Drug and Alcohol Abuse.
© 2011 David J. Azotea, Esquire. This article was published in the September/October 2011 issue of The Bencher, the flagship magazine of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.