Lawyers Helping Lawyers: Virginia’s Lawyers Assistance Program

PSYCHOLOGICAL IMPAIRMENTS Johns Hopkins study of 28 professions: attorneys are 3.6 times more likely to have depression during their lifetime and had more episodes of depression than other professionals. Washington State study: 19% of Washington attorneys suffer from elevated levels of depression, compared to 3-9% of the general population. Attorneys now have the highest suicide rate of any profession.

LAWYER PERSONALITY TRAITS Perfectionism: -- Organization, details, fear of malpractice Compartmentalized thinking: -- Helps with focus; damages relationships Helper vs. Helpee -- Taught we can think and argue our way out of any situation Workaholics -- No concept of when “enough is enough” -- Economic insecurity

SPECIAL VULNERABILITIES Adversarial nature fosters stress response Fear of being perceived as weak by others Fear of being taken advantage of if perceived to be weak Increased competition creates stress Expectations of clients are unrealistic Decline of professionalism & collegiality: “dog eat dog” mentality Frustration of long, drawn out struggle with no clear victory Inability to separate professional from personal

WHY ARE ATTORNEYS DIFFERENT? Denial: The sincere belief that the problem is the solution. Attorneys: Denial more entrenched and better defended through professional skills – advocacy, intelligence – and the role as an advice-giver rather than advice-taker. Resources: Allow for a longer period of progression – financial means; support staff; solo practice; hesitancy of colleagues, judges, staff to confront. Harm caused may be greater – it implicates money, liberty, legal rights.

DENIAL “Don’t Even Know I Am Lying” The “hallmark symptom” of alcoholism Defense mechanism Normal Characteristics: Lie Anger Blame Depression Isolation Resistance Shame

SUBSTANCE ABUSE: Signs/Symptoms -- Professional Decline in work quality Routinely returns late to office, or fails to return Cancels appointments Does not return phone calls Late for depositions, court appearances Inability to get along with lawyers and staff Numerous “sick” days “Unusual” procrastination; last minute filings Client complaints about performance, accessibility, and/or communication Appears under the influence Smells of alcohol in office, court, depositions

SUBSTANCE ABUSE: Signs/Symptoms -- Personal Gradual deterioration of appearance, hygiene, health Loses control at social gatherings Poor financial management Failure to make timely tax filings Pattern of family crisis or infidelity Withdrawal from friends and associates Mood swings Unpredictable emotional reactions

SUBSTANCE ABUSE: Signs/Symptoms –Legal/Ethical DUI – particularly if there are two or more “Open container” violations Controlled substance charges Disorderly conduct Domestic violence Dishonesty to tribunal Failure to appear at hearings, depositions “Technical trust violations” – i.e., reconciliations Misses deadlines Substantive trust violations (misappropriation) Statute of limitations violations Abandonment of practice

The workplace is often the last place that signs and symptoms are seen. The profession is a large part of an attorney’s identity and work is “protected” from the consequences. If the problem is evident at work, it is usually not in an early stage.

DEPRESSION: Signs and Symptoms Change in appetite – eating too much or too little Problems with sleep – insomnia or sleeping longer than usual Change in activity level – increased or decreased Loss of interest or pleasure – may take the form of withdrawing from family/friends Physical agitation or retardation Inability to concentrate Feelings of worthlessness, inadequacy or overwhelming guilt

DEPRESSION: Signs and Symptoms (Cont’d) Recurring thoughts of death and/or suicide Difficulty in concentrating Slowed thinking Indecisiveness (the smallest tasks may seem difficult or impossible to accomplish) Memory difficulty and easy distraction Fatigue

ETHICAL RULES

RULE 8.3 A lawyer having reliable information that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer shall inform the appropriate professional authority.

TWO PRONGS First: Did the conduct violate an ethical rule? Second: Does the violation raise a substantial question as to the lawyer’s fitness to practice law? -- Illegal drug use: LEO Opinion No. 977

DISCIPLINARY PROCEDURE: DISABILITY Effective September 18, 2002, Bar Counsel may petition the Disciplinary Board to order an attorney, for good cause shown or in the interest of public protection, to undergo a psychiatric, physical or other medical examination by qualified physicians or other health care providers selected by the Board. The Board may also order an attorney to provide appropriate releases to healthcare providers authorizing the release of psychiatric, physical or other medical records to Bar Counsel and the Board.

DISCIPLINARY PROCEDURE: DISABILITY (cont’d) Effective September 18, 2002, the Disciplinary Board may suspend administratively, after a hearing if the attorney requests one, an attorney’s license on an interim basis for failure to comply with a Board order requiring the attorney to undergo a psychiatric, physical or other medical examination and/or requiring the attorney to authorize the release of certain medical records. The interim suspension ends when the attorney complies or proves compliance is impossible.

What are your obligations when you encounter or work with an impaired attorney? It depends ….

ENCOUNTERING IMPAIRED BEHAVIOR No ethical violation = no ethical obligation BUT Avoid enabling Contact Lawyers Helping Lawyers

ENABLING Accepting responsibility for the actions of the chemically dependent person, hoping that by doing all of these helpful things you will be able to help them control or stop their drinking or drug use – i.e., that the problem will go away.

EXAMPLES OF PROFESSIONAL ENABLING Covering up by assuming or shifting responsibilities in the workplace Making excuses for the lawyer’s failure to perform Trying to control the lawyer’s drinking (overtly or covertly) Avoiding the person (ignoring the problem and hoping it will go away) Angrily lashing out at the lawyer Losing confidence and trust in the lawyer without confronting the performance issues

ENCOUNTERING IMPAIRED BEHAVIOR & AN ETHICAL VIOLATION If the lawyer is not only impaired, but has also committed an ethical violation, Rule 8.3 governs your ethical obligation. If the two-prong test is satisfied, what do you do? Rule 8.3(d)

RULE 8.3(d) “ This Rule [8.3] does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge who is a member of an approved lawyer’s assistance program, or who is otherwise cooperating in a particular assistance effort, when such information is obtained for the purposes of fulfilling the recognized objectives of the program

2008/ 2014 LHL Survey Perceptions of attorneys about the scope of SA & MH problems among a lawyers Extent to which SA & MH problems impact members of the legal profession Awareness of services provided by Lawyers Helping Lawyers

Survey II Took 20 minutes to complete 1,981 individuals accessed and answered at least some of the questions (14%) 2008 Over 2100 attorneys completed at least part of the survey (>5% of VSB members) This is considered “robust” and unless there is systematic bias in those who did not respond the results can be generalized to the broader survey population

Problems with Substances Has the use of substances affected your work as a lawyer 96.5%-no 3.5% yes Has the use of substances affected your personal life 89 % no 11% yes If people responded yes to either of these the % of yes answers rose to 13% Same in both surveys

AUDIT Commonly used screening device for harmful consumption of alcohol Common cut off is 8 12% of lawyers received a score of 8 or above Pretty consistent with the 13% stating they had problems in work or family life

Mental Health Issues 16% of attorneys stated that mental health problems affected their work as a lawyer 22% stated that mental health problems affected their personal lives If individuals answered yes to either of the questions the % rose to 24% 16% stated that they had actually been diagnosed with a mental health problem by a professional

Of Importance to LHL 32% of the legal population has a personal or professional problem because of SA or MH issues Over 20% of Attorneys still do not understand that LHL does not report to the VSB Less than 20% of Attorneys feel that lawyers will seek help for alcoholism Less then 30% feel that lawyers would seek help for mental health issues

Interesting When asked specifically about asking for help themselves 23% said that they would ask for help with substance abuse Only 19% would ask for help with mental health issues

LAWYERS HELPING LAWYERS

THE MISSION OF LHL “The goal of the Lawyers Helping Lawyers program is to provide confidential, non- disciplinary assistance to lawyers and judges law students and other members of the legal community and their families who are experiencing professional impairment as a result of substance abuse or mental health issues. That assistance is designed to prevent disciplinary problems for the lawyer, protect the client, support the lawyer’s family and professional associates, and strengthen the profession.” Lawyers Helping Lawyers Mission Statement Volunteer Handbook

LHL: BRIEF HISTORY 1985: VSB/VBA study on lawyer substance abuse leads to creation of the Substance Abuse Committee within the VBA Substance Abuse Committee creates the Lawyers Helping Lawyers Program 2003: LHL incorporates as an independent non- profit (501(c)(3)) entity 2003: LHL expands its services to assist attorneys with mental health impairment as well as substance abuse

WHAT LHL DOES Confidentially assists attorneys, judges, law students and other legal professionals who may be impaired in their ability to function in their professional role Provides evaluation and assessment services Provides preventative services through educational programs offered to the judiciary, law schools, law firms, bar associations and bar seminars Provides referral services and maintains a listing of resources, programs and health care providers competent to work with legal professionals

LHL MONITORING LHL may receive referrals from courts, law firms, the Bar or the Board of Bar Examiners. The referral requires the attorney to enter into a contractual Rehabilitation, or “Monitoring” Agreement with LHL. This allows the attorney to keep his or her job or license or avoid disciplinary action while he or she takes the first steps on the road to recovery. The Agreement serves as a structure to support recovery. LHL does not monitor the attorney’s practice.

MONITORING AGREEMENTS The lawyer agrees to: remain alcohol and drug free; undergo random drug and alcohol testing; meeting regularly with a monitor, who is a LHL volunteer. The lawyer agrees to: participate in treatment/counseling appropriate to his/her needs; participate in 12-step support groups, if appropriate; file monthly written reports with LHL. The Agreement may include additional terms specific to the lawyer and the situation.

LHL IS NOT: a 12-Step Program. It does, however, rely on participation in Alcoholics Anonymous and Narcotics Anonymous as the primary resource in the lawyer’s recovery from addiction a treatment program, counseling center, employment agency, legal referral center or employee assistance program. All of these services, however, can be accessed through LHL’s referral resources

LHL IS NOT: Part of the Bar’s Disciplinary System. LHL works independently of, but cooperatively with, the Virginia State Bar, the Board of Bar Examiners, local bar associations and the Bar at large.

CONTACTING LHL 24-Hour Confidential Hotline: Office number: (804) Address: 600 E. Main Street, Suite 2035, Richmond, Virginia or Website:

LHL CIVIL IMMUNITY “Any person shall be immune from civil liability for, or resulting from, any act, decision, omission, communication, finding, opinion or conclusion made or conducted in connection with the investigation, intervention, counseling or monitoring of a lawyer, judge, paralegal, or other member of the legal profession by ‘Lawyers Helping Lawyers,’ a Virginia non-profit, non-stock corporation dedicated to assisting members of the legal profession engaged in substance abuse or suffering from mental illness, if such an act, decision, omission, communication, finding, opinion or conclusion is made or conducted in good faith and without malicious intent.”

THE BENEFITS OF RECOVERY TO THE PROFESSION

2001 MALPRACTICE & DISCIPLINE CLAIM STUDY The following statistics are based upon a study conducted in 2001 by the Oregon Attorney Assistance Program of the incidence of malpractice and disciplinary claims against Oregon lawyers who suffer from alcoholism or chemical dependency. The study examined their claim rates during the five years before sobriety and the five years after sobriety.

2001 OREGON STUDY Malpractice and discipline complaint rates for lawyers before recovery are nearly four times higher than they are after recovery. Malpractice and discipline complaint rates for lawyers in recovery are lower than that of the general lawyer population.

DISCIPLINE COMPLAINTS Annual complaint rate before sobriety = 28% Annual complaint rate after sobriety = 7% Average annual complaint rate for general population of Oregon lawyers = 9%

MALPRACTICE CLAIMS Annual claim rate before sobriety = 30% Annual claim rate after sobriety = 8% Average annual claim rate for general population of Oregon lawyers = 13.5%

SUMMARY Given the statistics on substance abuse and mental health problems in the legal profession, chances are, you will encounter an impaired attorney. In some circumstances, you may have an ethical obligation to report that attorney to the “appropriate professional authority.” In any event, Lawyers Helping Lawyers offers invaluable assistance.

SUMMARY (Cont’d) Assisting disabled lawyers: Protects clients Protects the public Strengthens the legal profession