Like a Bull in a China Shop

Mar 15, 2008 - 02:11 AM PST

Like a Bull in a China Shop:
The Effects of Alcoholism and Substance Abuse on the Ethical Practice of Attorneys

On Tuesday, November 8, 2005, Scott Fitz Randolph was able to do what many attorneys only dream about doing. That morning, Randolph appeared before the United States Supreme Court in hopes of winning a case rooted deep in constitutional law and the rights of the individual in the face of governmental power. However, unlike his more fortunate colleagues, Randolph didn’t have the opportunity to display his legal genius and rapier wit to the nine esteemed justices of the nation’s high court during oral argument. Instead, Randolph was relegated to the sidelines, to merely watch and listen helplessly as his own attorney attempted to convince the Court that evidence of Randolph’s cocaine use and possession be thrown out as a result of an unconstitutional search and seizure. (Simonson 2005). While the implications of the Supreme Court opinion in this case have had a broad effect on the utilization of Fourth Amendment rights across the nation, the evidence Randolph sought to suppress – a small amount of cocaine in the possession of a licensed attorney – has its own implications in legal circles.

Randolph isn’t the only attorney to face legal woes as a result of substance abuse or addiction. In late 2004, Utah defense attorney Geoffrey L. Clark faced second-degree felony charges of trading legal services for methamphetamine. Clark had been arrested in the past for speeding and driving under the influence of marijuana. In addition, colleagues reported that Clark exhibited unprofessional behavior on multiple occasions, including during a murder trial in April 2002, in which 2nd District Judge Ernie Jones called Clark “a bull in a china shop” and sentenced him to 30 days in jail for contempt of court after he refused to obey the judge’s orders during trial. (Hunt 2004) In February 2005, Richard James Roach, a district attorney for the 31st and 223rd Judicial District Court in the Texas Panhandle, confessed to frequent methamphetamine use and addiction after arrest for possession of methamphetamine and firearms on the premises of his law office. Roach pled guilty to one of four counts charging him as an “Addict of Unlawful User of Narcotics in Possession of Firearms,” a violation of federal law, for which he now faces up to 10 years in prison and a fine up to $250,000.00. (Blumenthal 2005) Across the country in Illinois, an Attorney registration and Disciplinary Commission Board determined that Chicago attorney John J. Cresto, who was found to have misappropriated more than $80,000.00 in client funds while suffering from substance-induced mood disorder, should lose his license to practice law. (Rooney 2005)

From Georgia to Utah, Texas to Illinois, the disease of addiction has tightened its grasp on lawyers across the nation. Recent research has indicated a disturbing trend in the rate of alcoholism and substance abuse among law practitioners. While 7-10 percent of the general population reports a problem with addiction, the ABA Commission on Lawyer Assistance Programs reports the rate of substance abuse among lawyers is as high as 15 to 18 percent. (Broida 2004) An Illinois Survey reports that 50 to 75 percent of discipline cases involve a chemically dependent or mentally ill practitioner. Studies in Louisiana and Oregon estimate that 80 percent of Client Protection Fund cases involve chemically dependency or a gambling component. (Cohen 2003) Are these struggles with alcohol and substance abuse a testament to the high stress and excessive pressures of modern legal practice?

Long hours, fear of failure and the constant competition associated with the adversarial process certainly present high periods of stress for attorneys. Other causes of stress, such as lack of time, inability to keep up with the changing law, concerns about public perception, threats of malpractice litigation, financial pressures, and unrealistic expectations from judges, clients, and the attorneys themselves, can combine to create a work environment that is often too tense for the average person to handle. (Cohen 2003) Unfortunately, the same unrealistic expectations and concerns about public perception also make it difficult for attorneys to admit to having a problem. Instead of seeking help in the form of therapy or healthy support from friends and family, the exhausted attorney too often turns to marijuana for relaxation, alcohol to drown his fears, prescription narcotics to dull her emotions, or methamphetamine or cocaine to help push through the long days.

Beyond the plight of the addicted attorney, beyond the attorney’s frustrated family and discouraged colleagues, are those who stand to suffer the most at the hands of an attorney’s addiction – the clients. A client walks into an attorney’s office with a problem too large or complex to handle without assistance, and a certain amount of trust in the trained professionals of the law. That client expects the attorney to administer sound advice, argue the case with authority, and either secure a win or minimize the client’s loss to the fullest extent possible. At a minimum, the client expects the attorney to follow proper court procedures, appear at depositions and in court as scheduled, manage discovery deadlines and return telephone calls. Above all else, the client expects, and deserves, to be treated with dignity and respect.

Ironically, when an attorney is suffering from the effects of alcoholism or substance abuse, the respectful and dignified treatment of clients is often one of the first areas of practice to be affected. Early warning signs of an attorney’s impairment include client neglect; failure to return phone calls; arriving late for depositions or hearings; canceling multiple appointments; forgetting about court appearances; and multiple last-minute court filings or missed deadlines. Colleagues and staff may notice a decline in the attorney’s performance as well. Paralegals and legal assistants may be unfairly blamed for missed deadlines, forgotten court appearances or the attorney’s failure to return phone calls from clients or opposing counsel. Other warning signs displayed in the office include hostile behavior; severe disorganization; frequent sick days or unexplained absences; complaints from clients; and the attorney frequently secluding himself in a locked office. The impaired attorney’s partners and associates often find themselves “picking up the slack” by attending hearings, depositions and client meetings on behalf of their wayward coworker to help maintain the firm’s reputation and prevent malpractice claims.

In 1985, the Commission of Youth Alcohol and Drug Problems sponsored a meeting by the American Bar Association’s House of Delegates in which two resolutions relating to attorney impairment were passed: “(1) state courts and bar authorities should establish and support peer-support programs for attorneys suffering or recovering from alcohol or other drug abuse; and (2) because lawyer often play a leadership role in their communities and therefore serve as role models for young adults, the bar should exercise leadership in dealing with substance abuse.” (Blodgett 1988)

Three years later, equipped with those two resolutions and a $46,000 budget, the American Bar Association (“ABA”) created the Commission on Impaired Attorneys with the goal of assisting law practitioners suffering from alcoholism, depression, personal issues or other mental health problems to find appropriate treatment and moral support. (Id.) By 1996, the ABA had expanded the aid program to include specialized attention for attorneys suffering from substance abuse and addiction, referrals to 12-step programs, and stress management assistance, and changed the name of the program to the Commission on Lawyer Assistance Programs (CoLAP), partly to reflect the program’s newly expanded services, and partly to help remove any negative connotations associated with the term “impaired attorney.” (Human Rights 1996)

Now, more than a decade later, all 50 states have implemented some form of the Lawyer Assistance Program first developed by the ABA. (Wisconsin Bar Association 2005) Unfortunately, many of these programs are underutilized. Richard C. Reid of the Suffolk County Bar Association explains the low numbers of attorneys seeking help through the assistance programs offered by the Suffolk and Nassau County Bar Associations in New York. “They probably know [help] is there,” Reid states, but “there’s a thing called denial. It’s one part arrogance, one part pride. If people could get passed [sic] denial, we’d have a lot more phone calls.” (Harris 2004) The extensive training in denial and other defense tactics received in law school helps impaired attorneys to evade questions about their addiction problems from acquaintances. In addition, plentiful finances and well-trained legal support staff, as well as the reluctance of colleagues, judges and employees to confront the issue, can help an impaired attorney to extend her chemical dependency without seeking help for longer periods of time than the average person. (Cohen 2003)

The impaired attorney, by the very nature of the profession, also possesses the ability to do greater harm to himself and those around him than the average person. A n attorney with a substance abuse problem certainly faces the possibility of harming himself physically, mentally and emotionally, and can face the loss of his law license and career.

Though many state assistance programs are underutilized, those attorneys who do seek help through the Lawyer Assistance Program or any other method certainly seem to reap the benefits of working toward sobriety. A survey conducted in 2001 by the Oregon Attorney Assistance Program shows that the annual rate of malpractice claims for all lawyers in private practice in Oregon was 13.5 percent. By contrast, the annual malpractice claim rate for attorneys suffering from addiction in Oregon was 30 percent. For attorneys who previously suffered from chemical dependency but were in recovery, the rate of malpractice was only 8 percent, even lower than the state average for all attorneys. The rate of discipline complaints in Oregon followed the same pattern in that study as well. The annual discipline complaint rate for all attorneys in Oregon was 9 percent, compared to 28 percent for attorneys suffering from the effects of addiction, and a mere 7 percent for impaired attorneys who had achieved sobriety. (Id.)

The Office of the General Counsel for the State Bar of Georgia reports that it does not maintain statistics related to the number of disciplinary cases arising from a lawyer’s problems with alcohol or drugs. (Wagner 2005) There are two troubling problems with this assertion. First, if a state bar association or its related assistance program intends to operate a successful program for lawyers with chemical dependencies, the program should first be able to research the magnitude of the problem in the state. Without sufficient evidence of a crisis in chemical dependency among law practitioners, it is impossible to determine the effectiveness of any existing assistance programs. Second, any disciplinary program that does not maintain a thorough record of disciplinary cases involving substance abuse or mental incapacity on the part of the attorney can never hope to ensure the affected clients are made whole. A search of the Georgia Supreme Court website for cases involving attorney impairment reflects a definite problem with substance abuse among attorneys in Georgia. (Supreme Court of Georgia 2005)

Two disciplinary cases heard by the Georgia Supreme Court in 2005 illustrate the different avenues that are available to justices seeking to discipline an impaired attorney for unethical practice. A disciplinary case involving Kingston, Georgia lawyer Anthony Gus Caroway resulted in the suspension of Caroway’s Georgia license for 24 months after Caroway pled guilty to possession of cocaine; possession of methamphetamine by ingestion; possession of marijuana; and driving under the influence in the Superior Court of Bartow County, Georgia. The Georgia Supreme Court ruled, “Caroway’s suspension may be lifted only by further order of this Court, following his successful participation in the State Bar of Georgia Lawyer Assistance Program, as certified to the State Bar by the State Director of such program.” Presiding Justice Carol Hunstein (joined by Justices P. Harris Hines and Hugh P. Thompson) dissented, stating in her opinion that, “[t]he Court’s 24-month suspension of Caroway, a term far less than that imposed by the criminal court for his illegal conduct, fails to adequately protect the public and disrupts public confidence in the legal profession.” (In re: Caroway 2005) Caroway managed to escape disbarment by accepting mandatory treatment, but not all lawyers are so lucky. In October 2005, the Georgia Supreme Court revoked New York attorney Dakeer Farrar’s law license after Farrar entered guilty pleas in the Superior Court of Douglas County to “three counts of unlawful use of a communication device and one count each of the sale of marijuana, the sale of methylenedioxy-methamphetamine, and trafficking in cocaine.” (In re: Farrar 2005)

An impaired attorney’s actions reflect on the legal profession and its supporting organizations as a whole. Therefore, Lawyers Assistance Programs should aspire to provide help not only to the attorneys in question, but to the clients of those attorneys as well. When a client places her trust in a lawyer, she cannot possibly predict that her case might be compromised because of alcohol or drugs. In Florida Bar v. Dancu, the judge described the explicit trust a client places in his attorney. “The very nature of the lawyer-client relationship requires that clients place their money and their causes in the hands of their lawyers with a degree of blind trust that is paralleled in very few other economic relationships.” (Florida Bar v. Dancu 1986)

In a highly publicized attorney discipline case in Georgia, Jason Todd Schwiller was arrested on two separate occasions on felony drug charges for possession of large amounts of cocaine in both Fulton and Douglas Counties. Following his arrest in Douglas County, the impaired Schwiller violated the attorney-client privilege by revealing client confidences to police. The Supreme Court also found that Schwiller “…missed scheduled court appearances on behalf of clients due to his being under the influence of illegal substances… has failed to communicate adequately with clients and opposing counsel due to his being under the influence of illegal substances… has used illegal substances with clients, and… has obtained illegal substances from clients. (In re: Schwiller 2005)

When an attorney’s substance abuse manifests itself in missed discovery deadlines, forgotten court appearances or unprofessional behavior that results in financial loss, mental distress to the client, and the disciplinary action, and the disciplinary arm of the state bar later finds that the attorney’s impairment was a direct cause of the client’s loss, that client should have the opportunity to present the otherwise “confidential” decision of the disciplinary board to any court of appeals. Additionally, the state bar should seek to provide the client with pro bono attorney services for the duration of any resulting appeals process, as well as any litigation the client might wish to initiate regarding professional malpractice, including recovery of misappropriated funds.

Judges and other attorneys also have a responsibility in identifying attorney impairment among their colleagues. While judges have the opportunity to make a significant impact on attorney’s behavior, they are often reluctant to confront an attorney in open court, or even in closed chambers. The ABA has recently issued opinions regarding the professional and ethical responsibility of attorneys who discover or suspect another attorney’s impairment. If an attorney notices that another attorney in the same firm is suffering from chemical dependency, that attorney’s primary goal should be to protect the interests of the firm’s clients. According to the ABA, lawyers who notice an impairment issue in a lawyer at a different firm are under no obligation to report the matter. Legal author Arthur Burger explains, “The ABA cautions, though, that ‘knowing that another lawyer is drinking heavily or is evidencing impairment in social settings is not itself enough to trigger a duty to report under rule 8.3. A lawyer must know that the condition is materially impairing the affected lawyer’s representation of clients.” (Burger 2004) Thus, if the attorney’s substance abuse leads to a known violation of the ABA’s Rules of Professional Conduct that indicates the attorney is unfit to practice, any other attorney who is aware of the problem should report the behavior to the state bar. However, state bar associations should not discourage attorneys from preemptively noting a potential problem with an attorney based on suspicious social behavior. Such behavior, when noted in an attorney’s bar file, could serve as helpful clues to a disciplinary board when investigating complaints from clients and colleagues in the future.

Though there are obvious problems in the trend of attorneys toward substance abuse and alcoholism, and the effects of chemical dependency upon the ethical and professional behavior of attorneys can be great, there is hope for the law practitioners of America. By improving the manner in which the American Bar Association, state bar associations, lawyer assistance programs, judges, and attorneys themselves approach the issue, the profession will see a dramatic rise in the number of previously addicted attorneys working toward sobriety. But until the law profession as a whole is prepared to recognize the issue as a serious one, and take appropriate steps to remedy the losses experienced by clients, the public will continue to view the impaired attorney as Judge Ernie Jones viewed attorney Geoffrey Clark – as a bull in a china shop, in need of removal from the legal world.