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

• Author: By Molly Hughes Cherry

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 moral turpitude Generally speaking, the use or even abuse of alcohol is not a crime, though some exceptions exist. But the use or abuse of some other substances, such as marijuana, or the misuse of controlled substances is a crime. Additionally, alcohol or substance abuse can lower inhibitions that control activities that may lead to criminal acts. Ultimately, however, under the Rules, the question becomes whether the crime at issue involves moral turpitude or reflects adversely on the individual's "honesty, trustworthiness, or fitness as a lawyer in other respects[.]"

With these Rules in mind, consider the example of a young attorney who is overwhelmed by the responsibilities of practicing law. To help her deal with her anxieties, she begins drinking wine more frequently and occasionally smokes marijuana or takes a few prescription painkillers from a friend to help her unwind each night. Has she violated Rule 1.16(a)(2) or Rule 8.4? Now add this to the equation: A few moments before her last appointed Department of Social Services case, she smoked some marijuana to calm her nerves. Has she violated any Rules at this point? What if she is a solo practitioner who begins borrowing money from a client trust account to pay for her "habit"?

Perhaps the more important issue in these scenarios, however, is what should be done about the young attorney's behavior. Although this attorney has a responsibility to follow the Rules of Professional Conduct, the likelihood of her acknowledging or even recognizing a violation of the rules is minimal at best. It is under these scenarios that our obligations, as fellow members of the bar, arise.

Responsibilities of other attorneys in a firm

"If you want one year of prosperity, grow grain. If you want 10 years of prosperity, grow trees. If you want 100 years of prosperity, grow people." -Chinese Proverb

The Rules of Professional Conduct identify the responsibilities lawyers have to those in their firm. Assume that the young attorney above works as an associate in a group practice. Rule 5.1, RPC, addresses this situation as follows:

a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. (c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if: (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action [to avoid the consequences].

Most lawyers are aware of their responsibilities for attorneys they are supervising. However, many are surprised to learn of their firm's responsibility to "make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct." The comments to the Rules do not define or otherwise provide examples of what might constitute such reasonable efforts, though Rule 1.0 defines "reasonable" as "the conduct of a reasonably prudent and competent lawyer."

With Rule 5.1 in mind, reconsider the scenario with the young associate described above. Assume she missed several important deadlines and a status conference in a large case she was second-chairing with a partner in your office. Assume further that she was counseled by the partner with whom she was working. After some discussion, the partner encouraged the associate to seek some counseling, during which she was diagnosed with depression. The associate started regular counseling sessions and, while being monitored by the partner, did not miss any other deadlines or appointments for several weeks. Two months later, however, the partner stopped monitoring the associate, who then missed a key filing deadline for a client to respond to a complaint. Opposing counsel was unwilling to consent to an extension of time.

Under the Rules, the partner appears to have acted reasonably in counseling and monitoring the associate and, thus, arguably undertook reasonable efforts to ensure the associate's conduct conformed to the Rules of Professional Conduct pursuant to Rule 5.1(b). However, by ceasing to monitor the associate after two months, did the partner undertake reasonable efforts to ensure the associate's conformity with the Rules? What if the partner had monitored the associate for six months, and the events still unfolded as they did?

More importantly, does the partner have any obligation to report the associate's behavior? Rule 8.3(a) provides as follows:

A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's fitness as a lawyer in other respects, shall inform the appropriate professional authority.

Comment 3 to Rule 8.3 acknowledges the difficulties that immediately come to mind:

If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule [8.3] limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule.

Under Rule 1.0, "knowingly," "known" or "knows" denotes actual knowledge of the fact in question and further provides that a person's knowledge may be inferred from circumstances. And, according to comment 3, the word "substantial" refers to the seriousness of the possible offense and not to the quantum of evidence of which the lawyer is aware.

Nevertheless, even with the assistance of these guidelines and definitions, under the scenario given, we do not have enough information to assess whether the associate has actually violated the Rules of Professional Conduct, particularly because we do not know why she may have missed the filing deadline. Accordingly, while obligations to clients and to others may arise under this scenario, no reporting obligation appears to exist.

General responsibilities of other attorneys

"He who asks is a fool for five minutes, but he who does not ask remains a fool forever." -Chinese Proverb

Returning to the example first given above, suppose you do not practice with the young attorney. Instead, at a lunch meeting she has requested, she shares the information about having smoked marijuana before a hearing and confides to you that she believes she has a substance abuse problem. Or, perhaps as she drinks her third glass of wine at lunch, you begin to suspect she may have a substance abuse problem. At that point, one may query whether an obligation to report the attorney arises under Rule 8.3.

Notwithstanding any analysis of whether you actually "know" a Rule violation has occurred, the young attorney is approaching you in confidence and, in fact, appears to be asking for help. In this instance,if the attorney is seeking advice from you or otherwise communicating with you under circumstances that could be governed under the attorney-client privilege, it is important to note that Rule 8.3(c) does not require disclosure of information otherwise protected by Rule 1.6, which is generally information protected by the attorney-client privilege. The comments to Rule 8.3 clearly state that the duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question.

Instead, the discussion with the young attorney affords you an opportunity to encourage her to get help, perhaps from a lawyer assistance program. As colleagues in this profession, we can and should encourage each other to seek out the available resources where appropriate. Lawyers do not need to wait, however, until a violation of the Rules of Professional Conduct occurs or a colleague confides his or her concerns. While few lawyers are trained to diagnose substance abuse, some signs that may trigger concern include the following:

* Feeling depressed, sad or anxious during most of the day * Neglecting family and losing interest in activities * Changes in weight * Changes in sleep patterns * Feeling less energy * Financial difficulties * A general increase in health problems * Feelings of worthlessness and guilt * Isolation from friends and family * Reduced ability or inability to concentrate Carroll, Don, A Lawyer's Guide to Healing: Solutions for Addiction and Depression, (Hazelden 2006); www.mayoclinic.com/health/alcoholism/DS00340/DSECTION=symptoms.

The Rules of Professional Conduct do not require lawyers to encourage others to participate in a lawyers' assistance program, but the Rules are not meant to be all-inclusive:

The Rules [of Professional Conduct] do not exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law. Model Rules of Prof'l ConductRPC, Scope, ¶ 3; Rule 407, SCACR. If you begin to suspect you or a colleague may have a problem with substance abuse, it is important to recognize that the problem is not something that will solve itself over time; instead, it may get progressively worse. Resources are available to help you or to assist you in directing a colleague toward help.

Lawyer assistance programs and resources

"To know the road ahead, ask those coming back." -Chinese Proverb

In addition to any moral or ethical obligation we may have to other lawyers, substance abuse has a very real impact on our profession as a whole. For example, the director of the Oregon Bar concluded several years ago that "[t]he costs to the bar in lost dollars because of malpractice claims and discipline claims, and in the loss of favorable public opinion and reputation because of ethical violations, are far too high." Therefore, "it is important that state bar organizations develop approaches to alcohol and chemical dependency problems that take advantage of the benefits [lawyer] assistance programs offer." Zarov and Fishleder, "New Study Shows Recovery Saves Dollars," American Bar AssociationABA Newsletter: LPL Advisory, Vol. 6, Num. 1 (Spring 2002).

A number of lawyer assistance programs are available to attorneys battling substance abuse. And in South Carolina, our Rules of Professional Conduct are designed to encourage lawyers to use the resources when necessary: Inquiries or information received by the South Carolina Bar Lawyers Helping Lawyers Committee or an equivalent county bar association committee regarding the need for treatment for alcohol, drug abuse or depression, or by the South Carolina Bar law office management assistance program or an equivalent county bar association program regarding a lawyer seeking program assistance, shall not be disclosed to the disciplinary authority without written permission of the lawyer receiving assistance. Any such inquiry or information shall enjoy the same confidence as information protected by the attorney-client privilege under applicable law. Model Rules of Prof'l Conduct, R.Rule 8.3(d), RPC, Rule 407, SCACR. Comment 5 to Rule 8.3(c) notes that "without such an exception [to reporting requirements], lawyers and judges may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public."

Lawyers Helping Lawyers (LHL)

Lawyers Helping Lawyers provides programs and services to assist members of the legal profession in South Carolina who suffer from problems of substance abuse or depression that affect their professional and/or personal life, providing referral services, peer support and monitoring services. Members of the Lawyers Helping Lawyers Committee comprise a support network of judges and lawyers who assist in carrying the recovery message.

In addition, LHL sponsors preventative services that include educational outreach, mailings and literature distribution, display ads in various periodicals and media, and presentations to the judiciary, the University of South Carolina School of Law and various Bar groups. LHL also provides sponsorship of and curriculum for continuing legal education programs. All inquiries, questions and conferences are privileged and held in the strictest confidence between the program and the lawyer. Model Rules of Prof'l Conduct, R. 8.3(c), Rule 407, SCACR Rule 8.3(c), RPC, Rule 407, SCACR.

Life Focus Counseling Services

Life Focus Counseling Services provides up to five free hours of intervention counseling for attorneys experiencing emotional or stress-related issues. The service is completely anonymous. Bar members can call 1-866-726-5252 at any time, 24 hours a day, to be referred to a counselor in their area.

Other Resources

Two books may be particularly helpful resources: A Lawyer's Guide to Healing: Solutions for Addiction and Depression, by Don Carroll (Hazelden 2006), and LawyerLife: Finding a Life and a Higher Calling in the Practice of Law, by Carl Horn, III (ABA Publishing 2003). A number of non-bar related self-help fellowships and mental health resources including the following groups:

* Alcoholics Anonymous: www.aa.org * Emotions Anonymous: www.emotionsanonymous.org * Co-Dependents Anonymous: www.codependents.org * Cocaine Anonymous: www.ca.org * Gamblers Anonymous: www.gamblersanonymous.org * Narcotics Anonymous: www.na.org * Anxiety: www.adaa.org * Depression: www.menanddepression.nimh.nih.gov * Post-partum Depression: www.intellihealth.com * Mayo Clinic: www.mayoclinic.com * National Institute of Mental Health: www.nimh.nih.gov

Conclusion

"A gem cannot be polished without friction, nor a man perfected without trials." -Chinese Proverb

At some point in our careers, we will all face challenges and struggles-many of which, if not dealt with appropriately, present a variety of dangers to ourselves, our families, our friends and our profession. However, numerous opportunities exist for all of us to learn from challenges, including our own and those of others. Guidelines identify actions we can take to help fellow attorneys recognize, avoid or overcome the dangers of substance abuse and prevent it from becoming a personal and professional crisis. As colleagues and friends, we have the obligation to do what we can to assist those who need our support and encouragement.

Molly Hughes Cherry practices with Nexsen Pruet, LLC in Charleston.