Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2006

Hiding in Plain Sight
Recognizing signs of impairment, and what to do about it
By Meloney Crawford Chadwick

The attorney counselors of the Oregon Attorney Assistance Program frequently present continuing legal education seminars on topics dealing with personal and practice management issues. One of great interest to lawyers in Oregon was a series introduced a few years ago entitled "Working with Your Impaired Client." Hotel ballrooms in Portland and around the state — from Medford to the Coast — were filled with lawyers looking for ways to identify, assist and communicate with their impaired clients.

In contrast, the Multnomah Bar Association offered a two-hour CLE this spring on "Identifying and Working with The Impaired Lawyer." It was cancelled for lack of interest. Why the difference in response? It is a discomfiting topic. An informal discussion with lawyers on the topic of impairment in the profession yields a variety of responses, ranging from "It’s none of my business," and "I wouldn’t know what to look for," to "I would never want to cause trouble for a colleague." Some people feel that lists of the signs and symptoms of impairment are ambiguous or inconclusive, claiming anyone could have a problem according to those standards.

Would it help to ask what the impaired lawyer does look like? Last month, the news reported the case of a Nevada lawyer who arrived for court 90 minutes late for trial, slurring his words. The judge ordered a blood-alcohol test for the attorney and subsequently declared a mistrial, saying, "I don’t think you can tell a straight story because you are intoxicated. " Most of us would agree that the Nevada lawyer was impaired, but was this case typical?

It is time to reevaluate our stereotypes and misconceptions about impairment in the legal profession, because the stigma created by our wrong thinking keeps lawyers who need help from getting the assistance they desperately need. The impaired lawyer may be young or old, male or female, a successful partner in a large multi-office law firm or a sole practitioner in rural Oregon. Instead of the sad extreme of the lawyer who staggers or passes out in the courtroom, the impaired lawyer may be hiding in plain sight, masked by the apathy of his or her colleagues.

Counselors who work with impaired professionals agree that impairment—particularly in the form of chemical dependency—becomes apparent in the workplace long after it has wreaked havoc in the individual’s family and home life, partially because work has clear-cut expectations and patterns of behavior that are simpler to navigate than intimate emotional relationships. Ironically, stresses in the office — competition, demands from clients and pressure for more billable hours — may cause some lawyers to seek unhelpful and risky forms of relief which can lead to more problems in time.

A few examples:

Each of these lawyers is experiencing impairment.

What we have learned about brain chemistry in the last 15 years shows us that addiction resides in the instinctual parts of the brain — the midbrain, which controls the survival responses of "fight or flight," and not in the prefrontal cortex, where our personality, values and intelligence are. Very bright people can still suffer from the disease of addiction.

The same skills that make successful lawyers — an ability to argue, to see all sides of an issue and a need to be right — make attorneys less likely to seek help for their problems, even though lawyers experience twice the rate of chemical dependence and clinical depression than the average population (1987 Washington State Bar study). Considering the degree to which lawyers define themselves through their careers and their professional reputations, those self-reported statistics for impairment may still be lower than the reality. Denial is not restricted to the rationalization of the attorney suffering from impairment. It extends to the hesitation of colleagues to confront the problem and the erroneous belief that it will take care of itself.

A research study conducted in 2003 by the Cottonwood de Tucson treatment center concluded that the primary obstacle that prevented lawyers from accessing care was the belief that they could handle the problem on their own. The second significant obstacle in seeking treatment for behavioral health issues was a concern that seeking treatment might have a negative consequence on their professional reputation among peers, judges and potential clients. The responses of lawyers who did seek help stress that effective assistance must be tailored to the specific needs of the legal profession, highly confidential, and provide specific information about chemical dependency and mood disorders.

How can we help? We should care about the impact that substance abuse and dependence, depression, problem gambling and other compulsive disorders have on the lives of our colleagues. The average lawyer is uniquely positioned to help without becoming an expert diagnostician. In addition to our ethical duty to our profession and our clients, we can raise our standards to extend compassion and care to our colleagues. While many lawyers complain about the loss of civility in the profession, we can all take action on an individual level.

While the basic signs and symptoms of impairment (see sidebar) provide general guidelines, any lawyer can rely on common sense to determine when to express concern to a friend or colleague if something seems wrong. If you still feel reluctant, fearful or unprepared, take advantage of the resources offered to members of the Oregon State Bar (see companion article).

The impaired attorney does not have to remain hidden or ignored. Impairment becomes progressively worse without outside help, but recovery is possible for those who get treatment. While 80 percent of Client Protection Fund cases involve chemical dependency or problem gambling (Oregon and Louisiana studies), a 2001 Oregon study examined malpractice claims of lawyers in recovery and found that their claim rate after five years of sobriety was nearly half that of the annual malpractice claim rate for Oregon lawyers in private practice. A personal expression of your care and concern can open an avenue of hope for the impaired lawyer.

SIGNS OF LAWYER IMPAIRMENT
Noted as a distinct change from usual behavior:

Professional: Frequent unexplained absences, sick days. Late for depositions, client meetings. Does not return phone calls. Isolates in office. Misses court dates and hearings, deteriorating personal hygiene, inappropriate mood or fears. Discusses/focuses on death, suicide, life insurance.

Legal: DUI, open container, disorderly conduct offenses, credit/financial problems, controlled substance charges, domestic violence, larceny, fraud, forged prescriptions

Ethical: Late for hearings, "technical" trust violations (reconciliations) last-minute filings, failure to diligently represent client. Substantive trust violations (misappropriation), statute of limitations violations, dishonesty, and /or incoherent/paranoid pleadings.

 

ABOUT THE AUTHOR
Meloney Crawford Chadwick is a counselor at the Oregon Attorney Assistance Program. She is a certified alcohol and drug counselor (CADC III) and a nationally certified alcohol and drug counselor, level 2 (NADC II). She also serves on the board of the Oregon Addictions Counselors Certification Board.

© 2006 Meloney Crawford Chadwick


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