Apocalypse at Law: the Four Horsemen of the Modern Bar - Drugs, Alcohol, Gambling, and Depression
| Jurisdiction | United States,Federal |
| Citation | Vol. 77 No. 2 Pg. 19 |
| Pages | 19 |
| Publication year | 2006 |
77 J. Kan. Bar Ass'n 2, 19 (2008). Apocalypse at Law: The Four Horsemen of The Modern Bar - Drugs, Alcohol, Gambling, and Depression
Volume 77, Feb. 2008
77 J. Kan. Bar Ass'n 2, 19 (2008)
And power was given unto them over the fourth part of the earth, to kill with sword, and with hunger, and with death, and with the beasts of the earth.(fn1)
I. The Bar at Risk
As the number of practicing lawyers continues to grow, so does the number of complaints against lawyers for various violations of the applicable rules of professional conduct.(fn2)
There are many reasons for the type of conduct that leads to complaints by clients, opposing parties and counsel, and even judges, but to generalize about the causes is to invite criticism. Each case is as individual as the lawyer-respondent and the circumstances confronting him at the time.
However, there are certain factors that appear in an alarming number of cases. These involve lawyers' use of and dependence upon drugs and alcohol (See Sections II and III.), participation in gambling (See Section IV.), and descent into depression. (See Section V.)
Many are the cases and articles that chronicle the complaints about lawyers failing to return calls or communicate adequately with their clients;(fn3) lawyers failing to take action or meet deadlines, resulting in claims being lost;(fn4) and lawyers acting inappropriately, ranging from outbursts of temper(fn5) to propositioning sexual relations with clients.(fn6) While not excusing this behavior, the respondent lawyers in those cases often cite one or more of these modern problems in mitigation: drugs, alcohol, gambling, and depression. These are the Four Horsemen of the Modern Bar. They cause lawyers to lose control of their lives and then to lose their licenses to practice, their families, their self-respect, and frequently, their lives. These four scourges - of drugs, alcohol, gambling and depression - acting alone or in concert, are endemic and increasing, and they represent a threat to the stability of an integral component of liberty and democracy - a free and independent bar.
The purposes of this article are to explore these four phenomena, discuss some of the cases that indicate their nature, and address some possible solutions in the hope of stemming their stampede. (See Section VI.) The first step is awareness. The next step is a resolve by all members of the bar to offer a helping hand.
II. Drugs - The White Horse
And I saw, and behold a white horse: and he that sat on him had a bow; and a crown was given unto him: and he went forth conquering, and to conquer.(fn7)
It is no stretch of the metaphor to call drugs the "white horse." Indeed, heroin and cocaine have been called by this name for many years.(fn8) As a modern poet has written, in "My Name is Cocaine":
Remember, my friend, it's all up to you.
If you decide to jump in my saddle you better ride me well;
For on the white horse of cocaine,
I'll ride you straight to HELL!(fn9)
The 1980s near-hit by the Danish band Laid Back, "White Horse," said to have been written about heroin, repeatedly intones "Don't ride the white horse."(fn10)
There is no doubt that drug use remains a problem in society, generally,(fn11) and lawyers are not exempt from the lure of this horse. Access to money, familiarity with those who have access to drugs, and perhaps a psychological tendency to seek a quick buzz, sometimes combine to lead a lawyer down the wrong path. Often, once this process has started, it spirals out of control. And the results can be devastating - for the lawyer's clients, as well as for the lawyer himself. Indeed, drug addiction in the bar has been called "A modern American tragedy."(fn12)
An example of this is The Florida Bar v. Heptner.(fn13) There the attorney solicited and used cocaine regularly over an 18-month period and accepted cocaine in exchange for legal services.(fn14) The Court noted that before drug abuse may serve as a mitigating factor, "the addiction must impair the attorney's ability to practice law to such an extent that it outweighs the attorney's misconduct."(fn15) The Court rejected a proposal for a retroactive two-year suspension and ordered the attorney disbarred. The Court noted,
[The attorney] committed serious acts of misconduct. First, he engaged in felony criminal conduct with a client, involving the sale and use of cocaine. Second, he continued to practice law while suspended and, thus, intentionally violated an order of this Court. Third, Heptner has engaged in multiple acts of misconduct over an extended period of time.(fn16)
Such cases should serve as a warning of the destruction that accompanies this first horseman. The use of, and addiction to, drugs, such as cocaine, increases the danger that an attorney's misconduct poses to the lawyer's clients and to the public at large.(fn17) Unlike the use of alcohol, which is legal, the use of drugs is illegal; since its use is a criminal act, the courts should not condone that use, particularly by members of the bar.(fn18)
A similar case is In re Disciplinary Proceedings Against Schwimmer,(fn19) in which the attorney was addicted to drugs and alcohol and, among other crimes, misappropriated client funds.(fn20) The Court concluded that, under Washington law, "[t]here are no extraordinary mitigating factors present in this case. Although Schwimmer has indicated that he has little recollection of actually taking client funds and that he had addiction problems with alcohol and drugs, this does not mitigate his professional misconduct."(fn21)
Sometimes the Court takes a less draconian approach, and addiction is considered as a mitigating factor, if the lawyer has pursued recovery. For example, in Columbus Bar Ass'n v. Ashton,(fn22) the attorney took unauthorized expense-account advances from his law firm, failed to properly withdraw from a client's case, and failed to disclose to clients that he lacked malpractice insurance.(fn23) However, by the time of his hearing, the respondent had come to recognize his addiction to drugs and had taken steps to seek recovery. The Court stated:
[W]e attribute mitigating effect to the fact that a lawyer suffers from an addiction to drugs just as we do to the fact that a lawyer suffers from alcoholism or a mental disability. Moreover, even when a lawyer has committed serious misconduct in addition to illegal drug use, we have tempered our disposition when the lawyer has shown a commitment to recovery from drug addiction.(fn24)
In either event, the pursuit of this white horse can jeopardize a lawyer's happiness, his livelihood and his life.
III. Alcohol andndash; The Red Horse
And there went out another horse that was red: and power was given to him that sat thereon to take peace from the earth, and that they should kill one another: and there was given unto him a great sword.(fn25)
The subtle lure of alcohol, the red wine that invites one in slowly - promising escape from tension and the cares of this world - can lead to ruin. The classic film "The Days of Wine and Roses" depicts the depredations and losses that can ensue from that first innocent drink. As the film's theme song says,
The days of wine and roses laugh and run away like a child at play
Through a meadow land toward a closing door
A door marked 'nevermore' that wasn't there before.(fn26)
Some people simply cannot control their urge to drink.(fn27) The red wine wields the sword of power over them. This loss of control results in a loss of peace and, sometimes, even the loss of life.
Lawyers are not immune to this risk; they are perhaps more at risk than most. Tensions, confrontations, disputes, hard work, the drive to succeed - all endemic to the profession - can lead one to seek an escape. The escape is often found in the quick, legal, and relatively inexpensive route of the bottle. But that escape can lead to the "door marked 'nevermore' that wasn't there before," so poignantly described in Johnny Mercer's lyrics in the theme song quoted above.
Singer-songwriter Merle Haggard knew the cost of the "Days of Wine and Roses" from personal experience, and he was able to describe that cost in his song, "I Threw Away the Rose":
But now I'm paying for the days of wine and roses
A victim of the drunken life I chose
Now all my social friends look down their noses
Cause I kept the wine and threw away the rose(fn28)
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