(Reuters) – The statistics have become depressingly familiar: Lawyers have significantly higher levels of problem drinking, substance abuse, anxiety and depression when compared with the general population.
The toll isn’t just personal. Clients can suffer if their counsel is impaired. The question is, what to do about it? How should bar authorities respond when a lawyer’s misconduct stems from addiction or mental health issues?
A new report by the New York State Bar Association on lawyer well-being dives into these questions and the feasibility of diversion programs for lawyers with substance abuse or mental health issues and who are facing disciplinary actions as a result.
These programs allow a court to stay an investigation or proceeding and direct the lawyer to an appropriate treatment and monitoring program. The report authors urge such options to be expanded to all disciplinary proceedings and applied “in the broadest possible fashion.”
It sounds enlightened and compassionate — but making it work is likely to prove challenging.
New York has had a diversion program in place since 2016, but the report authors note that few lawyers have taken advantage of it.
The Albany-based Appellate Division, Third Department, for example, “has seen only a handful of diversion applications over the past five years, with only one such proceeding reaching successful fruition,” according to the report.
Why don’t more lawyers see this as a lifeline? After all, it could be a chance to enter recovery and halt a potentially ruinous disciplinary action. As the report authors noted, potential beneficiaries “include the impaired lawyer, the lawyer’s family, partners, employees and clients, as well as the courts and the legal profession as a whole.”
But lawyers tend to be reluctant to seek help out of a deep-rooted fear of professional consequences, Patrick Krill, an attorney who advises law firms on well-being matters, told me.
“The message from the beginning of the law school experience is ‘Thou shalt not practice law while impaired,’” Krill said. “There’s less discussion about the disease of addiction.”
The result is a pervasive fear of being “perceived as impaired” that makes lawyers disinclined to let anyone know, he continued. “They keep it hidden and it grows and gets worse.”
That’s what happened to Jeffrey Grant.
“I was an alcoholic and a drug addict and living double life,” Grant, who regained his New York law license earlier this year after losing it in 2002, told me. (I wrote previously about Grant here.)
There was no diversion program when his world as head of a small firm in Mamaroneck, New York, started to fall apart 20-odd years ago. I asked if he thought such program might have made a difference or prevented his downfall, which culminated in serving 14 months in federal prison for fraudulently obtaining a loan.
“I’d like to believe it would,” he said. But at the same time, Grant also said that “nothing was going to get through to me before hitting bottom.”
In the roughly 9,000 (yes, 9,000) Alcoholics Anonymous meetings he’s attended in the last 19 years, he added, “I’ve never met anyone who was ready to get help before hitting bottom.”
The report’s authors — dozens of lawyers served on the task force that created the 167-page document — recognize this is an obstacle.
As is, the program “contemplates a lawyer ready, willing and able to seek treatment at the time when the disciplinary investigation or proceeding remains pending,” they wrote. “All too often, the attorney’s threshold acknowledgment of impairment or condition comes only after the disciplinary process has resolved disfavorably.”
In other words, it happens when the lawyer hits bottom and it’s too late for a diversion. (Though successful treatment can certainly help a lawyer get reinstated.)
Anecdotally, the report’s authors said they found many attorneys prefer to “take their chances” with the outcome of a disciplinary investigation rather than admitting to a problem. After all, most professional misconduct complaints are ultimately dismissed or resolved via confidential letters of advisement or admonitions.
Asking for a diversion means lawyers “not only expose themselves to the vulnerability of raising a mental or physical health condition or impairment, but could also be subject to the rigors and requirements of a monitoring program for a period of a year or more. Further, while a diversion order is confidential, some attorneys may still be reluctant to have any order issued that addresses their underlying condition or impairment.”
Both Krill and Grant, while supportive of robust diversion alternatives, also urge more attorney outreach and education about substance abuse and mental health issues starting in law school and continuing via mandatory CLE.
“If we as lawyers knew from day one if you start to experience mental health or substance abuse problems that there is track available to get help, and that it will insulate your (law) license somewhat from disciplinary problems,” Krill said, “I think we’d see a lot more” lawyers seeking help.
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