Impaired attorneys and the disciplinary system.

• Author: Marx, Richard B.

Roughly 15 percent of Florida Bar members will develop a problem with alcohol or drugs during their career. That translates to almost 10,000 lawyers at risk.

One of the major problems facing society today is addiction.[1] It is a problem that has permeated every level of society, including the legal profession. There are now an estimated 64,800 members in good standing with The Florida Bar.[2] That number is staggering, but what is an even more sobering statistic is the number of impaired lawyers in Florida today. It has been estimated by Florida Lawyers Assistance, Inc.[3] that roughly 15 percent of Florida Bar members will develop a problem with alcohol or drugs at some time during. their careers. That translates to almost 10,000 lawyers at risk of developing an addictive illness.

This article focuses on the attorney disciplinary system as set forth in the Rules Regulating The Florida Bar, and how the Bar and Supreme Court deal with attorneys who have breached those rules as a result of addiction. Additionally, this article looks at the most judicious approaches to handling attorney disciplinary matters where addiction is involved, and how to make the best use of the resources available through FLA in defending those actions. This article also will undertake a comparison between attorney discipline and discipline in the medical profession, as it relates to addiction.

It is worthy to note that many lawyers who handle disciplinary actions also practice criminal defense. While a background in this area may be helpful in the average disciplinary case, it can sometimes be a hindrance when the matter involves addiction. Criminal defense lawyers must try cases and advocate strenuously on behalf of their clients. This approach can work against their client's best interest when it comes to disciplinary cases. In the defense of disciplinary cases, especially involving addiction, over-reliance on the advocacy system may be the greatest obstacle to obtaining a good result.

A review of disciplinary records indicates that a large percentage of the cases filed by the Bar have factual support and require some measure of discipline. It is this type of case that demands prompt resolution instead of protracted litigation. In such matters, the wise lawyer should acknowledge the Bar's basis for filing the complaint and realize that the client's best interest is served by negotiating the least damaging sanction possible. As an example, where the facts clearly establish a violation for which suspension is warranted, the lawyer should strive to obtain a suspension of 90 days or fewer, after which reinstatement is automatic. A suspension of more than 90 days creates an entirely different scenario, requiring a petition for reinstatement and a hearing before a referee to demonstrate rehabilitation. A 91-day suspension can actually extend the period by several months due to delays inherent in the reinstatement process.

Addiction and the Attorney

There are two broad and opposing views of addiction. The first is that addiction is a moral failing which should act as a bar to admission to the legal profession. This view sees the addicted attorney as a high risk to the profession. Its proponents are skeptical about addiction being a true disease, believe that treatment is futile, and feel that recovery is not a stable condition.[4] An alternative view is held by professionals in the addiction treatment field and by many lawyers and judges who have witnessed recovery from addiction. This view stresses the need for understanding the nature of addictive illness, especially the features of compulsivity and denial.[5] Elsewhere in this issue Dr. Roger Goetz eloquently explains these points.

Fortunately, for almost 20 years the Florida Supreme Court has subscribed to the latter view and has looked favorably on a lawyer's efforts at rehabilitation. In 1987, a lawyer received a three-year suspension rather than disbarment for felony convictions for injecting cocaine into two young women.[6] The court found that the women participated voluntarily and that the lawyer's conduct was caused by his cocaine addiction. The Supreme Court was impressed by his efforts to go straight. The defense lawyer in that case bristled at the suggestion that his client's punishment was mild, considering the offense. "A suspension of any length is simply devastating. I have no patience with anyone who sees it as a slap on the wrist. Even if you ignore the obvious financial penalty of loss of income, you have [horribly damaging] publicity, including the requirement to send a copy of your suspension to each of your clients. There's a complete loss of privacy and prestige within the community."[7]

Today addiction is generally viewed as a disease and recovery is widely seen as a mitigating factor in disciplinary proceedings. Given a proper showing of rehabilitation and restitution, addiction will be accepted as evidence in mitigation of improper behavior.[8]

In order to properly represent impaired lawyers in disciplinary matters, it is extremely important to understand the nature of addiction and be able to recognize it. Lawyers with limited or no knowledge in this area often overlook strategies which should be followed to obtain a successful result. When substance abuse is the reason for an attorney's misconduct, the lawyer representing him or her is in a unique position to facilitate a favorable result in which the legal crisis can lead to recovery from the substance abuse problem.

Most people who are chemically dependent still believe they can control their alcohol or drug use. Although they may cut down or even abstain entirely for a period of time, one thing is predictable: without treatment the illness will progress, resulting in more and more serious family, health, and professional consequences. Attorneys who are themselves successfully recovering from addiction may be more sensitive to these issues and aware of the crucial role they can play in facilitating recovery. Often, an impaired attorney who fights assessment and treatment and fails to cooperate with the court or the Bar may be making a minor disciplinary problem into a suspension or even disbarment case.

Florida Lawyers Assistance

The history and operations of FLA are more fully described elsewhere in this issue. For the purposes of this article, it should be stressed that from the point of view of a chemically dependent attorney who is facing a disciplinary proceeding, the FLA rehabilitation contract may be the practical means of proving, through highly credible evidence, that he or she is involved in a sustained program of recovery. The Supreme Court of Florida has held that a genuine effort to voluntarily seek rehabilitation from chemical dependency should be considered as a mitigating factor in disciplinary actions. FLA employs a...