SC Lawyer, May 2009, #5. Lessons from Beijing: How a Crisis Involving Substance Abuse Can Become an Opportunity.

Author:By Molly Hughes Cherry
 
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South Carolina Lawyer

2009.

SC Lawyer, May 2009, #5.

Lessons from Beijing: How a Crisis Involving Substance Abuse Can Become an Opportunity

South Carolina LawyerMay 2009Lessons from Beijing: How a Crisis Involving Substance Abuse Can Become an OpportunityBy Molly Hughes CherryThe Chinese word for "crisis" consists of two characters: one represents danger, and the other represents opportunity. These two characters might also symbolize the possibilities that confront an individual who is battling substance abuse.

In 2004, the American Bar Association estimated that 15 to 18 percent of U.S. lawyers could be considered substance abusers or substance dependent. Hazelden Foundation, "Addicted Lawyers Can Overcome Barriers to Recovery," Alive & Free(Haselden Foundation,, July 26, 2004). Alcohol, of course, is one of the substances most frequently abused.

The impact of substance abuse can be devastating for a lawyer on a number of personal and professional levels. The destructive behavior arising from substance abuse impacts not only the individual attorney but countless others as well, including clients, colleagues and families. While most attorneys have no specialized training in substance abuse, opportunities exist for each of us to help colleagues confront the dangers-and overcome the challenges-that arise from substance abuse. Guidance is available from both the S.C. Rules of Professional Conduct and the South Carolina Bar's lawyers' assistance program, Lawyers Helping Lawyers.

Rules of Professional Conduct

"If you must play, decide on three things at the start: the rules of the game, the stakes and the quitting time." -Chinese Proverb

A lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. RPCModel Rules of Prof'l Conduct, pmbl, ¶ 7 (2009); Rule 407, SCACR. The Rules dictate that a lawyer should be guided by personal conscience and the approbation of professional peers. Id. Yet, a lawyer's responsibilities do not end with personal adherence to the Rules: "A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the professional and the public interest which it serves." Id. at ¶ 12. Thus, as lawyers, we not only have a responsibility to follow the Rules of Professional Conduct but also to assist our colleagues in doing so.

Individual attorney's responsibility

"An ant may well destroy a whole dam." -Chinese Proverb

A number of the Rules of Professional Conduct may apply to or address scenarios involving substance abuse; however, the Rules that apply most often to an individual attorney's responsibilities are Rules 1.16(a)(2) and 8.4, RPC, Rule 407, SCACR.

Rule 1.16(a)(2) provides, in relevant part, as follows: A lawyer must not undertake or continue representation of a client when that lawyer suffers from a physical or mental condition that materially impairs the lawyer's ability to represent the client. Neither the comments to Rule 1.16 nor the definition of terms provided in Rule 1.0 define or otherwise offer guidance regarding the phrase "physical or mental condition." The physical or mental condition must "materially impair" the lawyer's ability to represent the client. The phrase "materially impair" is not defined under the Rules.

It is obvious that substance abuse may lead to, or is the result of, a physical or mental condition that would bring this Rule into play. See, e.g., In re Norton, 366 S.C. 341, 343, 622 S.E.2d 527, 528 (2005). In fact, a direct correlation exists between depression and alcoholism, with up to 50 percent of alcoholics exhibiting symptoms of major depression during a given period of time. http://www.learn-about-alcoholism.com/depression-and-alcoholism.html. Of note, out of 103 occupations studied in 1990 by researchers at Johns Hopkins University, attorneys led the nation in the incidence of depression. Eaton, W.W., "Occupations and Prevalence of Major Depressive Disorder," 32 Journal J.of Occupational Medicine Med. 1083 (1990).

Rule 8.4provides, in relevant part, as follows:

It is professional misconduct for a lawyer to: (a) violate . . . the Rules of Professional Conduct; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; [or] (c) commit a criminal act involving...

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