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Bench & Bar
The newsletter of the ISBA’s Bench & Bar Section

December 2007, vol. 38, no. 3

Lawyers under the influence: Lives, livelihoods, and legacies

Addictions. Alcohol, drugs, and gambling. Are these topics important enough to take your valuable time? Of course they are. You owe it to your colleagues, friends, family and yourself to read on. Work can wait. 

THE LAWYERS’ ASSISTANCE PROGRAM (“LAP”) DEALS with “impairments”—not only alcohol, drugs, and gambling, but also depression, anxiety and stress—emotional and physical conditions. By impairments we mean the condition is impairing someone’s life. Perhaps at work, perhaps at home, perhaps both.

LAP no longer waits for the impaired person to hit bottom—the curbstone. By then we see too much destruction to an individual’s profession, family, health and life. There is too much suffering. So, we try to raise that bottom. We try to intervene before a tragedy takes place and disciplinary action begins.

We believe that LAP’s efforts have saved some livelihoods, some families and some lives. We have seen the sick get well and we have seen lives turned around. That is the business of LAP, and business is booming.

We want to make it clear that this is not a temperance article. We don’t ask you to say no to anything. But every one of us should be aware of possible problems in our lives and in the lives of people we care about. Neither a lawyer’s license nor a black robe confers immunity.

If we are going to talk about alcohol, drug or gambling addiction, we have to know what addiction is all about. The medical evidence is clear: addiction is not a defect of character or a failure of will power. The disease is chronic; it’s progressive, and it’s incurable. It gets worse, and, if not treated, people die.

The Illinois Supreme Court agrees with the disease approach. In a 1988 lawyer discipline case concerning alcohol abuse, the Court said, “Our approach to these cases conforms to the modern view that alcoholism is better characterized as a treatable disease than as a moral failure.” In re Kunz, 122 Ill. 2d 547, 552-3 (1988).

Symptoms of Abuse 

Put aside, if you will, the skid row image of the drunk on a curbstone, bottle of wine in one hand, a live chicken in the other. Instead, look for loss of control and disruption of life. 

Loss of control does not mean every time an alcoholic drinks he or she gets crazy or collapses or falls apart. It means that once alcoholics take a drink, drug users use, or chronic gamblers start betting, they cannot predict with any degree of reliability what will happen next or whether they will stop. Control is gone. A normal person can elect not to drink or only have one. The impaired person cannot. Simply saying: “I can drive,” “I can get to court,” “I can try my cases,” does not address the issue of loss of control and disruption of life. The problems are there. See, Warning Signs on the next page.

Has the pressure of the practice or decision-making finally brought lawyers and judges to the breaking point? In a word, “No.” In matters of alcohol, gambling or drug abuse, lawyers and judges are not much different from most people. And that’s the problem. A 2003 study of Illinois households found that about 15 percent of all adults need alcohol control treatment, about 2.4 percent need drug treatment, and about 5.5 percent need treatment for chronic gambling. That includes lawyers, judges, plumbers, housewives, police, the unemployed—from the highest paid to the lowest. We are talking about an equal opportunity disease that crosses all socio-economic groups, races, educational backgrounds, and sexes.

Lawyers and judges probably are on the high end of that 15 percent. This is not because they are more susceptible, but because they have more opportunities and resources for substance abuse and gambling. We are also more visible; it is difficult for us to hide a hangover.

Since addiction is a disease, it means that it’s not the addicted person’s fault. There is no need for guilt. No one intends to become an addict. But, it also means that it’s a responsibility to get well and addiction is not an excuse. Each impaired person is responsible for his or her own recovery. The disease can be treated and arrested, which almost always means total abstinence. No cutting down. No stopping for two weeks. No giving it up for Lent. It means a program of personal change, in effect a new life. That change takes time and usually enlists the help of Alcoholics Anonymous or a similar program.

In Illinois we bear the cross of the Greylord scandal. That investigation led to the imprisonment of many judges and lawyers for corrupt conduct. It turns out almost all the convicted Greylord judges had serious alcohol problems. The tragedy is that everyone knew it. Which came first, alcohol or corruption, no one knows, but the connection cannot be ignored.

It is not our purpose to make the impaired lawyer or judge feel guilty. Rather our goal is to make all of the profession more sensitive to the warning signs. A caring profession will deal with impairment. It will offer help, not punishment; understanding, not accusations; hope, not desperation. What are needed are the courage, the will, and the compassion. LAP helps offer this each and every day.

How LAP Helps 

When a troubled lawyer calls LAP asking for help, a trained professional or trained volunteer takes the next step. It might be obtaining an evaluation, attending an Alcoholics Anonymous, Narcotics Anonymous or Gamblers Anonymous meeting, or getting inpatient or outpatient treatment. This is the easy way—the caller taking personal responsibility, overcoming self-denial and admitting that he or she has a problem. The hard way is when there is intervention.

It is harder because the law student, the lawyer or the judge with the control problem is not ready to ask for help or admit the need for help. The troubled lawyer is in denial; lying to himself or herself and to everyone, not ready to accept reality. It becomes the job of the LAP volunteer to bring reality to the troubled lawyer. That is where intervention comes in. A lawyer or judge, trained by health care professionals and certified as an intervener, becomes involved.

In most cases LAP receives a phone call from a friend, family member, partner, or co-worker. In many cases, involving impaired judges, one of the many judges active in LAP will receive the initial call. LAP checks to make sure the call is in good faith and not a crank or hoax. We then form a three-person panel. If the subject is a judge, all three interveners are judges. Only judges are involved in a judge’s intervention. If the subject is a lawyer, one of the three panel members will be a judge. At least one member of the panel will be recovering from the impairment, with at least one year of recovery.

We gather information from those close to the subject—family, friends, anyone. We talk to them and explore their memory—as lawyers we know how to do that. It is not always easy.

Addiction is a disease—a contagious disease. Often those close to the impaired person are damaged. They, too, are in denial. They make excuses; they call in for the impaired person saying he or she is sick. They are covering up. They are “Enabling”.

“Enabling” is conduct or lack of conduct that helps the alcoholic to drink or drug abuser to use or any impaired person to continue a destructive lifestyle. Enabling is covering up the consequences of the impairment. We are talking about the lies, the deceptions, and the excuses. It’s looking the other way and ignoring the obvious, such as picking up the tab, emptying the bottle, or hiding the empties. It is making excuses for the impaired person’s conduct. That’s enabling—the cover up. Instead of doing a favor for the impaired person, enabling allows the harmful behavior to continue. We urge law students, lawyers, judges, friends and family to stop enabling. No more lies and no more cover-ups.

We hear remarks like: “I don’t know much about her drinking, she is just sick a lot.” “Yes, he does hit me, but not often and only when he drinks.” “He does hide bottles. He does pass out. He does sleep in the car.” And so it goes.

We get them to write things down on yellow pads. Lawyers and judges respect yellow pads—it’s authority. We rehearse the way they will confront the impaired person as many times as needed. It will be done with love, care, and compassion. There will be no accusations, no name-calling and no one will say, “You are a drunk.”

The Call 

When we are ready, people close to the impaired person will present information not open for dispute or debate. The information must be specific like the foundation for a conversation: places, dates, who was there, what happened. We try to engage all the parts of his or her life—job, family, friends. We want to leave no place to escape. We contrast behavior while using to behavior free from the addicting influence and describe how the addiction affects the person and changes his or her life.

A child once said: “You didn’t come to my graduation. When I got home I found you passed out on the couch. You smelled like booze. I was so hurt. I was so ashamed of you. I cried.”

A spouse once said: “I waited for the club dance. I bought a dress. You promised you would go. You were too drunk. I felt anger, guilt, resentment and hate.”

A teenage girl said: “ Daddy, I love you. But I cannot bring my friends over to the house because I cannot tell whether you will be the Dad I love or the Dad I am ashamed to let them see. You asked me why I don’t go out on dates as much. I do, but I meet the boy elsewhere instead of having him come to our house.”

A partner once said: “Last week we had to cover your deposition and court dates. You were once a fine lawyer—not now. It is painful to us. I fear for our firm and for your health.”

All of this is done, whenever possible, in the chambers of the LAP panel judge. The chambers may not always be hallowed territory, but it is neutral. Lawyers are trained to behave in a judge’s chambers.

We want to overcome denial. Once the subject of the intervention recognizes the problem, we can show how and where to get help. We are not here to punish or to criticize; but rather, to give information out of concern because we care, as a lawyer, as a judge, and as a human being. We make it clear that we have no connection with the disciplinary agencies. We don’t tell those agencies what we do and they don’t ask. We want to reach lawyers and judges before the complaints and before the reasons for those complaints.

Intervention works best when someone can set limits. A supervisor might say: “Get help or get out.” A wife might say: “Get help or I’m gone.” A presiding judge may say: “Get help or I will have to transfer you and report you to the JIB. “ We do not create limits. If they are there we encourage people to state them, but only if they really mean it.

Does the subject appear for the session? Almost always. That’s where the judge comes in. The judge calls the subject. “I want to see you in my chambers tomorrow morning. We are meeting with some people who are worried about your (impairment).” The impaired lawyer comes. Why? Maybe it’s curiosity, maybe it’s a cry for help, maybe it’s because a judge called. But they come, and listen. This is true for lawyers and judges. Dignity is retained. We don’t ambush or surprise the subject.

Support for LAP 

What is our success rate? We believe 100 percent. Does that mean the person always says: “OK you got me, where do I go, what do I do?” No. It happens most of the time but not always. Sometimes it takes awhile for the impaired person to be ready and all we can accomplish is to plant a seed so progress is possible. Now they know the secret is out. An impaired person can drive through the garage door, pass out on the lawn, or throw up in the gutter, and think no one knows. After an intervention, the impaired person knows that other people know and that they are being hurt as well. At the very least, we have screwed up the person’s addiction and he or she will never again use without thinking about the intervention. The person will know that by “using” he or she is hurting others. That is one reason why we say we have no intervention failures.

We have said before that addictions and stress, anxiety and depression are contagious illnesses. Those close to the impaired person will develop symptoms. They will enable and lie in making excuses and assist in cover-ups. They will feel their own stress, anxieties and depression over the conduct and lack of conduct of the impaired person. LAP will assist in their recovery. That may be individual or family therapy, attending Al-Anon, Alateen, and open AA meetings. In their recovery they will be better equipped to assist the impaired person. This assistance to those close to the impaired person is another reason why we believe we have no failures.

There may be times when the impaired person refuses treatment and refuses to change the destructive behavior. That behavior can lead to disgrace and death. Those who extended themselves in a caring effort to help will be better equipped to accept the ultimate result. One more reason for our belief that there are no failures.

LAP has the enthusiastic support of the agencies that make up our legal system. The Illinois Supreme Court supports our work. The court gave us a rule of confidentiality to protect people who come to us for help. Any communication between the staff and among those involved in an intervention is that of an attorney— client. Rule 1.6 of the of Illinois Rules of Professional Conduct. The Court also passed the rule by which LAP is now funded from a portion of the attorneys’ annual registration fee. The Supreme Court also appoints the 14 member Board of Directors of the Lawyers’ Assistance Program. The State Legislature gave LAP and its volunteers immunity from lawsuits except for willful and wanton acts. 735 ILCS 35/2, 35/3, and 35/4.

The Attorney Registration and Disciplinary Agency works with LAP by referring attorneys for help. The ARDC passed a rule, which enables an attorney to continue to practice while his or her recovery is established. This almost always involves a referral to LAP. Disciplinary Commission Rule 108. The Judicial Inquiry Board also works with LAP by sending referrals. It is important to realize that neither agency requests any information from LAP. If they did LAP would have to refuse pursuant to Rule 1.6. The former head of the ARDC often said: “We are aware of what LAP does. The more work that LAP does, the less work we have to do.”

Everyone likes us. Everyone helps us. That’s an important message to send to troubled judges, lawyers and law students who fear disclosure.

Understanding alcohol and drug abuse will make us better judges, better attorneys and better law students. We will understand why some people behave the way they do. We will have a better idea of what to do about it. Alcohol and drug abuse keeps coming up in criminal, domestic violence, and domestic relation cases. Not to mention our own lives and the lives of people close to us.

Either you will be part of the solution by reaching out to offer help, or you will be part of the problem by doing nothing. When you come across an impaired person in our profession, and you will, we urge you to take appropriate responsible action, which can start with a call to LAP. Warning Signs 
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Editor’s note: The preceding articles by Justices Warren Wolfson and Michael Murphy were first published in the October issue of the CBA Record and are reprinted with permission.