The lie is over – We do recover

A network of recovering attorneys and judges carries the message to fellow members of their profession that recovery is possible.

by Myer J. Cohen, Harry G. Goodheart III, and Charles O. Hagan, Jr.

[Original article 12/99; edited by MJC 4/10]

“Once a drunk, always a drunk.” How many times have we heard colleagues say this about another attorney after his or her latest escapade, brush with the law, or embarrassing scene at the office party?

Unfortunately, in many segments of society, including the law, this belief is stated as a fact, despite evidence compiled over the past six decades that recovery from alcoholism and drug addiction is possible.

Before describing Florida Lawyers Assistance, Inc., the Bar’s program to help impaired attorneys, one must first review some of the attitudes, behaviors, and preconceptions held by attorneys and judges.

To begin with, the legal profession clearly qualifies as a high-stress occupation. Beginning in law school, the attorney is taught that he or she is a problem-solver whose opinions are sought and valued not only by clients, but by the public as well. Lawyers are regarded as learned individuals who possess knowledge in nonlegal as well as legal matters. Attorneys have historically comprised the majority of federal and state legislators, and are consistently elected by the general public as the individuals most qualified to analyze and decide the important political, economic, and financial problems of the day.

The medical field has long recognized that the use of drugs, including alcohol, increases proportionally with the degree of stress and pressure in one’s life.1 Attorneys tend to take their role as problem-solvers seriously, and believe there is little they cannot handle by using effort and concentration.

All too often, though, the use of alcohol and other drugs becomes a primary relief mechanism to deal with the strain of constantly having to come up with the right answer to other people’s problems. In many other instances, having a few drinks with one’s colleagues at “the other bar” is the acceptable and expected means of celebrating a victory or dulling the pain of a defeat. Attorneys are taught that no problem is insurmountable, that no challenge cannot be overcome by the use of one’s keen intellect and training. Taking a few drinks, doing a little cocaine, or taking a few pills only enhances this belief.

This thought process represents the greatest impediment to a lawyer’s recovery from chemical dependency. Trying to think one’s way out of addiction is as effective as believing that a person can use willpower to cure herself of diabetes, heart disease, or cancer.

The disease model of alcoholism was first proposed by Alcoholics Anonymous in 19352 and has been accepted by the American Medical Association since 1953. This model of addiction recognizes that the compulsive use of mood-altering chemicals is not a question of morality, weakness of character, or lack of willpower. In recent years, medical studies have confirmed that the prevailing characteristic of addiction is biochemical, i.e., that measurable differences in the action of neurotransmitters can be found in the brains of addicts.3 These biochemical differences appear to be genetic, although the onset and progression of the disease can be affected, positively or negatively, by environmental and psychological factors. Addiction is characterized as chronic (an addict is never “cured”), progressive (the illness always gets worse if ignored), and invariably fatal if left untreated. The symptoms and effects of the illness are well-documented and recognizable to the trained professional, but the progression of the illness can be arrested at any point with proper treatment and institution of a daily recovery program.

Faced with their own or another’s alcoholism or addiction, the attorney’s initial reaction is almost always, “I can handle it myself.” Such an attitude is akin to saying, “I can self-treat these pains I’m having in my chest.” By training, lawyers become to a greater or lesser degree the creatures of their own image or persona. How can they ask for help when they have been told they are society’s problem-solvers? They tell themselves that they are the experts at everything, that no one could provide better counsel. If unchecked, the end results of such impaired thinking and denial are always medical, legal, and disciplinary problems, eventually leading to loss of one’s license, career, and life.

Historical Perspective

In 1976 the Florida Supreme Court specifically recognized the disease concept of alcoholism and ruled that the presence of the illness could be taken into consideration when determining sanctions to be imposed on an attorney.4 Following this decision, the court in 1979 directed The Florida Bar to establish a commission on alcohol and drug abuse, charging the commission with assisting and monitoring chemically dependent attorneys during and after the grievance process. The court also expressed its hope that the commission would be able to identify and assist affected lawyers prior to disciplinary proceedings being filed. The commission eventually evolved into the Special Committee on Alcohol and Drug Abuse (the committee).

In 1981 the committee issued a report containing the following recommendations:

1) Establishment of a statewide, toll-free hotline through which chemically dependent attorneys could obtain help.

2) Establishment of an independent Alcohol Advisory Committee to assist the court and the Bar in disciplinary cases where chemical dependency was involved.

3) Establishment of an educational program, including speakers to appear at local bar meetings, to inform attorneys of the problem, and to let chemically dependent attorneys know that help was available.

In 1985 the Rules Regulating The Florida Bar were amended to provide that the Bar was to “create or fund a program for the identification of its members who are addicted to or dependent upon chemicals and the assistance of those members in overcoming such addictions or dependencies.”5 The rationale for implementing the rule was the court’s determination that a program designed to intervene before a chemically dependent attorney entered the disciplinary system could result in substantial savings of funds, client harm, and devastated lives, as well as acting as a resource to grievance committees in cases where alcohol or drugs were involved. In that same year, the Bar was, for the first time, given the responsibility of monitoring the probation of an attorney disciplined by the court.6

Both the Bar and the committee perceived that a major impediment to the objective of reaching attorneys before they became involved in discipline was the issue of confidentiality of information provided by lawyers voluntarily seeking help. In order to provide the necessary safeguards, 25 active members of The Florida Bar petitioned the court for an amendment providing for such confidentiality. In 1985 the court authorized Rule 3-7.1(j), providing “that an attorney has voluntarily sought, received, or accepted treatment for alcoholism or alcohol or drug abuse shall be confidential and shall not be admitted as evidence in disciplinary proceedings under these rules unless agreed to by the attorney who sought the treatment.”

In carrying out the court’s mandate to create or fund a lawyer assistance program, the Board of Governors decided that in order to assure confidentiality and provide maximum separation between the Bar and the LAP, a new corporation independent of the Bar should be created. This led to the formation of Florida Lawyers Assistance, Inc., in February 1986.

FLA functions through a 15-member board of directors (at least three of whom are nonlawyers) appointed by the Board of Governors. In addition, FLA receives approximately 60 percent of its funding through an annual allocation from the Bar. Beyond that, FLA operates independently of the Bar, judiciary, or Board of Bar Examiners.

As stated in FLA’s mission statement, the program is designed to provide services to assist attorneys, judges, law students, and other legal professionals who may be impaired in their ability to function in a legal setting. The backbone of FLA is a support network of recovering attorneys and judges who wish to carry the message to fellow members of their profession that recovery is possible.

FLA concentrates on assisting legal professionals with chemical dependency or psychological problems, providing evaluation, assessment and referral services, peer and facilitated support, aftercare programs, and monitoring services. In addition, FLA engages in preventive services through educational outreach programs, including mailings, literature distribution, and presentations to the judiciary, law schools, law firms, bar associations, Florida Bar seminars, and other professional entities. FLA’s services are available for problems associated with drug, alcohol, gambling, food, and sexual addictions, as well as problems resulting from depression, stress, finances, and other areas that might affect an attorney’s ability to function competently in a legal setting.

FLA is not a 12-step program, although in cases of chemical dependency it relies on participation in the programs of Alcoholics Anonymous and Narcotics Anonymous as the primary resource in an attorney’s recovery. Neither is FLA a treatment program, counseling center, employment agency, legal referral center, or employee assistance program, although all of these services can be accessed through FLA’s resources.

FLA works independently of, but cooperatively with, The Florida Bar, the Florida Board of Bar Examiners, the Judicial Qualifications Commission, local bar associations, and the Bar at large.

From its inception, FLA has been an organization of lawyers helping lawyers. Although it maintains its primary office in Ft. Lauderdale, with a staff composed of an Executive Director, an Assistant Director, a Clinical Director, and three administrative assistants, its daily operations are carried out by a network of more than 300 attorneys, judges, law students, lay persons, and medical personnel, most of whom are themselves in recovery from chemical dependency or psychological impairments, who volunteer their time to help others.

One of the primary purposes of any peer assistance program is the early identification of impaired individuals. Very often in the practice of law, the first signs of trouble come through the disciplinary system. At early stages of the illness, typical grievances include allegations that a lawyer has failed to respond to calls from clients, has not kept his or her clients properly informed about the status of a file or case, or has been arrested for DUI. Unfortunately, due to the chemically dependent attorney’s denial regarding the root of such complaints, combined with many grievance committees’ lack of understanding about chemical dependency and perhaps some skillful (although perhaps misguided) advocacy on behalf of the respondent, the majority of such minor grievances result in a finding of no probable cause to proceed.

If the disease is not caught at this point, it is almost certain that the attorney will be back before the grievance committee on more serious charges, such as appearing at client meetings or court hearings under the influence, failing to appear at all, missing deadlines and statute of limitations dates, acting in a bizarre manner, abandoning his or her practice, further DUI or controlled substance arrests, or trust account violations.

It has been documented that between 40 percent and 60 percent of all cases before grievance committees, including minor matters, have as their cause some form of chemical or psychological impairment.7

In cases where chemical dependency is suspected, FLA has urged the grievance committees to refer the subject attorney to FLA for an evaluation, which the committee can facilitate through a recommendation for diversion.8 If chemical dependency or some other identifiable impairment is found after the assessment and evaluation process, the attorney is requested to enter into a written rehabilitation contract with FLA. The contract generally has a three-year term, and requires the attorney to comply with a structured rehabilitation program designed for the particular individual. All substance abuse contracts require complete abstinenc from non-prescribed drugs and alcohol, and most are 12-step oriented, requiring the attorney to attend a specified number of AA or NA meetings per week, obtain a sponsor, and follow the 12-step program. In addition, the attorney is assigned a recovering attorney monitor with whom they meet on at least a monthly basis, is required to attend an attorney support meeting each week if one is available in their area, agrees to submit to random urinalysis, and may be required to participate in group or individual therapy.

The monitoring system and attorney support meetings are vital parts of the program, made possible by the volunteers throughout Florida who devote their time to FLA. The monitoring and attorney support meetings are really what make the FLA program unique, and which no doubt contribute significantly to the extremely high recovery rate shown by FLA participants.

Written or electronic monitor reports are filed with FLA each month and constitute evidence of recovery that would be otherwise difficult or impossible to prove. When possible, a monitor is assigned who attends the same attorney support group as the subject lawyer, so the monitor can assess the attorney’s rehabilitation in a group setting on a weekly basis.

The attorney support groups currently meet weekly in more than 20 cities. The groups, which are completely confidential, meet for an hour. Members support each other through an exchange and sharing of their experience, strength, and hope. Particular emphasis is placed on voicing those concerns arising out of the participants’ practice of law, admissions process, or disciplinary problems, so that other members of the group with experience in such areas can share how they made it without the need to resort to using chemicals. The support meetings also are the primary vehicle for introducing new members to the AA and NA fellowships; by first attending a support meeting with their colleagues, with whom they feel comfortable, new members find it easier to make the transition to community based 12-step meetings. Being in a room of other recovering attorneys goes a long way toward ridding the addicted lawyer of the feeling of isolation, guilt, and shame which are the hallmarks of chemical dependency. A listing of the attorney support meetings can be found on the FLA web page at www.fla-lap.org .

The advantage of the FLA program to chemically dependent lawyers, in addition to providing a peer support system uniquely designed for the legal community, is that they have a means of documenting their ongoing recovery efforts and successes through highly credible evidence. The Bar’s Standards for Imposing Lawyer Sanctions state that ongoing, supervised rehabilitation with FLA will be considered as mitigation when determining sanctions to be imposed.9 Likewise, evaluation reports from FLA and from qualified healthcare professionals certified by FLA are often used to establish that the behavior leading to discipline was in fact drug- or alcohol-related. The FLA program has been used successfully to supervise probation of attorneys ordered by the Supreme Court. Regular reports are made to The Florida Bar outlining the attorney’s progress or lack of progress in recovery. In such cases, the costs of FLA’s services are partially defrayed by an initial registration/evaluation fee, monthly monitoring fees, and fees charged for appearances by staff personnel at hearings.

Intervention Services

FLA also performs intervention services in voluntary and mandatory cases, provided the circumstances meet certain criteria. Intervention is a means by which the attorney can be confronted in the hope of dismantling the denial system and allowing the addict to acknowledge he or she needs help.10 Initial contact with FLA is usually made by a family member, colleague, or close friend who is aware of the addiction. An FLA staff member will assemble an intervention group composed of five to 10 people who have personal knowledge of the illness’ effect on the attorney. Those participating in the intervention are rehearsed by the FLA facilitator prior to the intervention, which takes place without prior warning to the attorney. The ultimate result is to have the attorney agree to go directly from the intervention to chemical dependency treatment. Interventions, if performed carefully and out of a sense of caring rather than accusation, have an extremely high rate of success.

The services provided by FLA are equally available to law students and other applicants to The Florida Bar. In cases where an application for admission reveals a history of alcohol or drug abuse, chemical dependency treatment, or drug/alcohol related offenses, the Florida Board of Bar Examiners understandably must determine if the applicant has in fact reached a point in his or her recovery which would permit the competent practice of law. In cases where such a point has not been reached, the potential danger to the public and The Florida Bar is obvious. FLA endeavors to provide the Board of Bar Examiners with unbiased evidence of rehabilitation (or lack thereof), using the evaluation, contract, and monitoring provisions described above. Experience has demonstrated that in certain circumstances, a period of monitoring after admission is appropriate.

In such cases, applicants are often admitted on a conditional basis for one to five years, with the conditions terminating upon successful completion of the probationary period. While no restrictions are placed on the applicant’s actual practice of law, they are required to remain under contract for the conditional period. In the event of a material violation of the contract, the FLA staff consults with the Bar’s Legal Division to recommend appropriate measures. In some cases, an extension of the probationary period may be sought or, if warranted, a petition to show cause for termination of the conditional admission may be filed by the Bar. FLA may recommend residential or outpatient treatment, individual counseling, or another alternative in lieu of suspension.

ABA Commission on Lawyer Assistance Programs

FLA is a longstanding participant in the American Bar Association’s Commission on Lawyer Assistance Programs. The commission provides education and prevention services to the ABA and coordinates the lawyer assistance programs which now exist in some form in every state, Canadian province, and other countries.

Each year, the commission holds a workshop where representatives meet to exchange information concerning their respective programs. The workshop consistently includes representatives from the state programs, as well as lawyer assistance programs from Canada, Great Britain, Mexico, and other countries. The meeting is followed by the three- day annual meeting of International Lawyers in AA, which is attended by recovering attorneys from all over the world. CoLAP has an extensive internet presence¬† providing a listing of lawyer assistance programs around the country, recovery related resources, news articles, and annual workshop information. FLA’s Executive Director served on the Commission from 1997 to 2001, and on the Commission Advisory Committee from 2001 to 2005, and FLA’s Assistant Director was appointed to the CoLAP Advisory Committee in 2009.

Since the commission’s formation in 1988, FLA has been considered to one of the model programs in the United States. Florida has an advantage in that a unified bar can develop and support a uniform policy for evaluation, treatment, and monitoring of chemically dependent attorneys. In 1999, in recognition of the direction in which the state programs, including FLA, were heading, the commission expanded its role to deal with attorney impairments other than those caused solely by chemical dependency.

Other Impairments

Since FLA’s creation, it was apparent that conditions other than chemical dependency also adversely affect an attorney’s ability to practice law. Those conditions, which are likely more prevalent within the legal community than chemical dependency, include depression, stress, bi-polar disorders, personality disorders, financial and family problems, and other addictions such as gambling, sex, or food.11 Failure to address and treat these conditions can result in consequences just as severe as drug addiction or alcoholism.12 In recognition of this fact, the Supreme Court in 199813 expanded Rule 2-9.11 to provide that the program of assistance for addicted and chemically dependent members would include those suffering psychological problems affecting their professional performance. The rule now reads:

The Florida Bar shall create or fund a program for the identification of its members who suffer from impairment related to chemical dependency or psychological problems which affect their professional performance or practice of law, and the assistance of those members in overcoming such dependency or problems.

When such cases are brought to FLA’s attention, either voluntarily or through the Bar, FLA’s Clinical Director or an FLA certfied mental health professional will evaluate the attorney and develop a rehabilitation program. In disciplinary cases, FLA enters into a modified rehabilitation contract with the attorney, acting primarily as liaison between the attorney, the attorney’s therapist, and The Florida Bar.

FLA is also developing a system of facilitated support meetings, led by FLA-certified therapists, for legal professionals suffering from psychological impairments. The first meeting started in April 1999 in Ft. Lauderdale, and five groups should be operating by the end of this year.

Every July FLA sponsors a workshop for attorneys, law students, and judges interested in lawyer impairment, as well as the disciplinary and admissions processes. Presenters include experts in the field of addictionology, representatives from the Florida Bar, the Board of Bar Examiners, attorneys specializing in representation in disciplinary and admissions matters, criminal and family law practitioners, and recovering attorneys themselves. Substance abuse CLE credits are awarded for attendance at the workshop, which not only provides substantive information, but also allows the volunteers from around the state, the FLA staff, and other interested parties the chance to meet on a social basis.

Conclusion

Although not every judge, lawyer, or law student who takes a drink, uses a drug, or has a depressive episode can be considered to be impaired, continuing the behavior despite increasingly severe consequences can generally be regarded as evidence of an illness.

FLA estimates that of the more than 88,000 attorneys admitted in Florida, between 5,000 and 10,000 have had or will have a problem with drugs or alcohol during their careers. Some 10,000 to 18,000 Florida attorneys will experience debilitating short-term or full-blown clinical depression while in practice. In response to these problems, FLA has assisted over 3,000 attorneys, law students, and judges since its creation in 1986, with approximately 350 currently under contract, of which more than 100 are being monitored for disciplinary or conditional admission purposes. In follow-up studies performed for peer assistance programs, it was determined that over 80 percent of participants who successfully completed their contracts remained chemically free and most were successfully practicing. Clearly, the reduction in harm and suffering to the impaired individuals, their families, and the public as a result of these professionals’ participation is immeasurable. As has been said by one member of the Board of Governors, FLA is the only Bar funded program which works directly to save lawyers’ lives.

Future plans for FLA include increasing the Hagan-Kilby Fund (named after FLA’s first two executive directors), a tax-exempt foundation created to provide treatment loans and grants to indigent impaired attorneys, continuing efforts at publicizing FLA’s existence and function, and increased education of the bench and bar regarding impairment and recovery. Whether such goals are reached will depend on continued cooperation from the Supreme Court and the Bar in terms of funding and support, as well as the ongoing and expanding efforts of FLA’s network of volunteers.

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1 Coombs, R.H., Drug-Impaired Professionals, Harvard University Press, Cambridge (1997).

2 Alcoholics Anonymous, AA World Services, Inc., New York, NY (1935).

3 Erickson, C.K., Review of neurotransmitters and their role in alcoholism treatment, Alcohol & Alcoholism 31 (Suppl. 1): 5-11 (1996).

4 The Florida Bar v. Blalock, 325 So.2d 101 (1976).

5 Rule 2-9.11.

6 The Florida Bar v. Headley, So.2d (1985).

7 Nace, E.P., Achievement and Addiction: A Guide to the Treatment of Professionals, Brunner/Mazel, Inc., New York, NY (1995).

8 See Rule 3-5.3, Rules Regulating The Florida Bar.

9 Florida Standards for Imposing Lawyer Sanctions 10 and 11.

10 Johnson, V.E., Intervention: How to Help Someone Who Doesn’t Want Help, Johnson Institute Books, Minneapolis, MN (1986).

11 Beck, C., Sales, B., Benjamin, G.A., Lawyer Distress: Alcohol Related Problems and Other Psychological Concerns Among a Sample of Practicing Lawyers, 10 J.L. & Health, Cleveland-Marshall College of Law (1996).

12 Nace, E.P., Achievement and Addiction: A Guide to the Treatment of Professionals, Brunner/Mazel, Inc., New York, NY (1995).

13 Case No. 92,841 September 24, 1998.

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Myer J. (Michael) Cohen has been the Executive Director of Florida Lawyers Assistance, Inc. since 1995. He received his B.A. from Boston University in 1972, and his J.D. from Suffolk University Law School in 1980. He has been in recovery since 1986.

Charles O. Hagan, Jr., was the founder and was the first executive director of FLA. He received his B.S. from the University of Pennsylvania and his J.D. from Temple University School of Law. Mr. Hagan also served on the board of directors of the Southwest Alcoholism Council of Florida. He was in recovery from 1969 to the time of his death in 2005.

Harry G. Goodheart III has been mediating throughout the Southeast since 1989, and is president of Mediation Resources, Inc., in North Carolina. As a member of the Board of Governors of The Florida Bar he was instrumental in the early development of Florida Lawyers Assistance, and served on its board of directors for five years. He has been in recovery since 1990.