Addictions may tell smart people they’re not addicted
Susan Riegler, clinical director of the Lawyers’ Assistance Program, says that very smart, intelligent people become addicted, “yet the nature of addiction tells the person that they’re not addicted.”
She added, “That’s pretty sneaky when you think about it,” during the afternoon session of the ISBA Midyear Meeting seminar, “Effectively and Ethically Managing Clients with Mental Health and Substance Abuse Problems,” on Dec. 12 in Chicago.
The presentation by the ISBA Committee on Women and the Law was co-sponsored by the Committee on Delivery of Legal Services, the General Practice, Solo and Small Firm Section, and the Illinois Supreme Court Commission on Professionalism.
“People who are impaired in some areas may not be impaired in others,“ Riegler said. “This can be very confusing when you’re not sure what you’re looking at.”
She pointed out that clients who behave differently at different times suggest a whole range of possibilities, including that they may be at a particular point in their addiction, such as abstinence or withdrawal.
“If they are mentally ill,” Riegler said, “they may be getting progressively worse each time you see them.”
But when it comes to chemical dependency, once an individual has a physiological dependence, there is no cure, only treatments.
“This is called the ‘disease concept,’” Riegler explained. “It’s progressive, predictable and fatal. That’s why it’s called a disease and it will always be there.”
The first hallmark of addition is loss of control. “You may make a deal with yourself that you’ll only have two drinks,” Riegler said, “but you break that deal and drink more than two drinks.”
The second hallmark is insatiability; once you start drinking, you can’t stop. The final hallmark is the individual’s continuance of the behavior, even though he or she knows it’s causing problems for other people, too.
“The reason this is so frustrating to people without addictions is that it doesn’t make any kind of sense,” Riegler said. “But you’ve got to take logic out of the equation when you’re talking about addiction.”
By contrast, some impairments are biological, such as schizophrenia. “This would be classified a no-fault illness,” she said. It occurs in early adulthood, and once that happens, everything changes.
So how does a lawyer ethically represent a client with mental health or substance abuse issues?
A scenario was offered by Benedict Schwarz II of West Dundee, chair of the Attorney Registration and Disciplinary Commission and a trained divorce mediator.
“A lawyer represented a client in a 35-year marriage,” Schwarz began. “For much of those years, the client’s spouse has had mental issues. She had been hospitalized and institutionalized due to her mental unfitness. Medication helped.
“My client and the kids were seeing that she took her medicine, but she recently stopped taking it. She moved out of the house to live on her own and filed for divorce, alleging mental cruelty.
“Opposing counsel has now filed various motions despite the fact that my client has provided support for her while she lives on her own,” Schwarz continued.
“I brought this to the attention of opposing counsel, but he is unmoved. I’d like to argue that she’s not mentally capable of discerning what she is doing and not fit to file all of these motions. I’d like to file a motion for mental examination and to ascertain her ability to know what she’s doing.”
How does a lawyer go about this? “The first thing you have to consider is whom you are representing,” he said. “In this case, you are representing the spouse of someone who is allegedly ill. If the children are adults, do they have the ability to be their mother’s guardian?
“I don’t think you would want the husband in a divorce action to be appointed guardian of his wife who has filed against him. Yes, you could ask for a 215 examination. But would it not be more advantageous to the wife to ask the court to appoint a guardian?
But then who would the wife’s attorney represent if a guardian ad litem were appointed? “The lawyer still represents the wife,” Schwarz said, but the guardian guides the lawyer. “It’s assumed the guardian would be making decisions on behalf of the disabled wife’s best interests.”
And if the wife’s lawyer feels she is mentally impaired, he can simply file a motion to withdraw from the case. “That’s what many lawyers would do,” he said, “but there are other avenues under the ethics rules.”
Schwarz cited the attorney-client privilege. “That is sacred and extends beyond the client’s death. Under Rule 1.4, a lawyer is required as ‘far as reasonably possible to maintain an normal client-lawyer relationship.’ That usually is difficult if not impossible.”
He added that under Rule 1.14b, a lawyer “may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer believes the client cannot act in the client’s own interests.”
Schwarz cautioned that a lawyer should not disclose more than a simple outline of what the problem is, and not violate attorney-client privilege.
“So you have a problem,” he said. “You have a client who can’t represent herself, and you’re going to ask for aid for the client. But you’re going against your client, and you can’t be specific and utilize facts that may be prejudicial to the client.”
In short, Schwarz said the most common ethical issue is dealing with who is the client.
“My rule of thumb is the first person who hits my door is my client. And if both spouses come in at the same time, I have them decide beforehand who’s going to be the client.”