Information on how to deal with impaired clients, professionals and judges along with programs’ descriptions for the treatment of impaired individuals.
By Mike McCulley, Family Lawyer
I. Introduction
This paper is intended to serve as a guide for how we, as attorneys, deal with impaired individuals, whether they are our clients, our opposing counsel, or the judges before whom we practice. The starting point for this discussion is to define impairment as may be caused or exacerbated by certain recognized disorders, to describe many of those disorders which we frequently encounter, and to reference the sources of information about such disorders. Following that will be a description of the programs and facilities available for the treatment of impaired individuals. Finally, some practical advice will be offered as an aid in dealing with such individuals in the context of a lawsuit.
VIII. Other Sources of Information and Assistance for Lawyers
In addition to learning to recognize impaired clients and in seeking to find assistance for them, we must not ignore the fact that physical and mental health issues affect the population, including lawyers and the judiciary. This is evidenced by the fact that more and more is being written about impaired attorneys, and fortunately more sources of help are available than ever before. In fact, most of the March 2007 issue of the Texas Bar Journal is devoted to “health law and lawyer health”.
The March Texas Bar Journal gives some sobering statistics which help demonstrate the severity of the problem. It notes that a study by the National Institute for Occupational Safety and Health found that male attorneys are twice as likely to commit suicide as males in the general population. Further, the Bar Journal quotes the estimate that ten to twelve percent of all lawyers suffer from substance abuse or dependency.
With respect to depression, the March Texas Bar Journal gives a simple checklist, on page 222, of indicators that a lawyer (or anyone else) may be suffering from depression, and on pages 222 and 223 is a list of suggestions as to how to help such individuals.
One of the best sources of help for attorneys is through the Texas Lawyers Assistance Program (TLAP). This program is open to lawyers, judges, and law students, and provides confidential crisis counseling and referrals for treatment. TLAP can assist with many health disorders, including substance abuse, depression, anxiety, and stress related concerns. Their toll-free phone number is (800) 343-8527. More information on how TLAP works may be found at www.texasbar.com/tlap.
With respect to substance abuse or dependance, the March Texas Bar Journal also gives a checklist for spotting signs of substance abuse in our colleagues (or others) on pages 226 and 227.
Needless to say, the filing of repeated grievances against an individual attorney may be an indicator of impairment caused by depression or substance abuse, or simply by poor organizational skills or client communication by the attorney. In 2006, 344 lawyers in Texas were reprimanded, suspended, disbarred, or resigned their law licenses for varying degrees of ethical misconduct. In order to prevent such recurring misconduct and to try to assist, rather than punish, the offending lawyer, the State Bar has established the Grievance Referral Program to serve both the interest of the public and the attorney.
The Grievance Referral Program is administered through the Texas Chief Disciplinary Counsel’s office. It was created to address minor misconduct and does not serve to let a lawyer “off the hook” for it. The types of problems sought to be remedied, with a view toward improvement of the profession and protection of the public, are poor client communication, organization, time management, office management, or neglect of matters entrusted to the lawyer. When a complaint is in the nature of poor communication or organizational skills, the lawyer’s existing system is examined and efforts will be made, with the lawyer’s participation, to improve such system. When the problem stems from depression or substance abuse, the program typically requires a lawyer’s participation in a remedial plan, often involving the TLAP. When the problem is because of chronic disorganization or calendaring, the lawyer may be required to seek the services offered by the State Bar Law Practice Management Program. When there is a complaint against a lawyer who is qualified to be assisted through the Grievance Referral Program, that lawyer may be required to do more than would be required had the lawyer gone through the regular grievance process.
The criteria for referral to the grievance referral program are as follows:
(A) the lawyer has not been disciplined within the prior three (3) years;
(B) the lawyer has not been disciplined for similar conduct within the prior five (5) years;
(C) the misconduct does not involve the misappropriation of funds or breach of fiduciary duties;
(D) the misconduct does not involve dishonesty, fraud, or misrepresentation;
(E) the misconduct did not result in substantial harm or prejudice to the client or complainant;
(F) the lawyer maintained a cooperative attitude toward the proceedings;
(G) participation is likely to benefit the lawyer and further the goal of the protection of the public;
(H) the misconduct does not constitute a crime that would subject the lawyer to compulsory discipline under part VIII of the Texas Rules of Disciplinary Procedure.
For the benefit of the lawyer who suffers from the stress and anxiety of the profession, the March Texas Bar Journal includes a chapter on reducing stress and anxiety through “mindful lawyering”. Because lawyers are two to three times more likely to become chemically dependent or depressed than average adults, preventative measures, such as various means of meditation, are recommended. The article describes certain types of meditation that have proven helpful, and refers, for further information on meditation programs, to the Center for Contemplative Mind in Society at http://contemplativemind.org/programs/law.
IX. Diagnosis of Common Disorders
While the DSM-IV gives specific criteria for the diagnosis of mental disorders, it makes few references to lab work because few mental disorders cause physical changes that may be observed in the lab. Lab work can be useful in the diagnostic process, however, and there are many readily observable symptoms which we, as lawyers, should note as possible indicators of the presence or development of a disorder.
Obviously blood testing and urinalysis are useful in determining the presence of alcohol or other drugs in ones’ system, but blood testing can also reveal liver and other organ damage which may be the result of long-term abuse or dependance. Blood work may also indicate certain eating disorders and certain types of dementia.
Sleep studies may be useful in diagnosing sleep apnea, and several mental disorders are characterized by poor sleep patterns, as discussed below.
Finally, psychological testing can be useful in the diagnosis of many mental disorders, but it is probably underutilized, except in the case of court ordered evaluations, due primarily to the expense involved.
As a practitioner, if you are seeking to determine whether your client or the opposing party suffers from a mental disorder, do not ignore, in the discovery process, existing medical and psychological evidence which might shed light on this issue. If there are no current medical or psychological records, you may have grounds for requesting exams pursuant to the applicable discovery rules.
As a practical matter, since we are not in the business of diagnosing mental disorders, and since we may initially have little access to medical and psychological records, the possible presence or development of many common mental disorders may initially be suggested through the close observation of the individuals concerned. Two of the most common disorders, depression and anxiety, almost always result in certain readily observable behaviors.
Depressed individuals tend to be sad or at least unenthusiastic about their lives. They tend to have a flat, or fixed affect, and sometimes have baggy eyes due to a lack of sleep. A common symptom of depression is a tendency to awaken early in the morning (3:00 a.m. or so) and worry, resulting in fatigue by mid-morning. Such individuals sometimes fear the future and are hesitant to make decisions. They may otherwise demonstrate confusion, impaired memory, and poor concentration. Signs of possible depression are a person being routinely late, requiring an abnormally long time for routine chores such as grooming, getting children to school late or improperly dressed, and the inability to perform tasks assigned by a lawyer or other advisor. Some depressed individuals, rather than waking early in the morning, sleep most all the time (hypersomnia).
The largest group of disorders is the anxiety related disorders. Those suffering from anxiety are fearful and tend to worry about everything. As parties to divorce cases, they may fear not getting something they want, losing something they have, or being punished for something they have done. They seem frozen and afraid to move, and, as with depressed individuals, their memory and concentration is impaired. Their appetite decreases, resulting in weight loss, and their sleep patterns are irregular.
With respect to sleep, depressed individuals have no problem falling asleep, though, as stated, they tend to wake early. Those suffering from anxiety cannot get to sleep, wake early, and their sleep is interrupted throughout the night. Proper rest requires sleep associated with rapid eye movement (REM sleep), which occurs only with three to four hours of uninterrupted sleep. Depressed individuals may get some REM sleep, but those suffering from anxiety never reach that level.
Certain types of drug abuse may be indicated by certain behaviors. For example, stimulants may cause dilated pupils, excessive perspiration, and aggressive behavior, and, to a lesser degree, cocaine use may also be indicated by these symptoms.
Alcohol abuse is obvious in an individual who is intoxicated and who will tend to have bloodshot eyes, slurred speech, and imbalance, but one may be an alcohol abuser, or even dependant on alcohol, without being intoxicated all of the time. Individuals, including lawyers and judges, who regularly reschedule appointments, depositions and hearings, or who miss them altogether, may be abusing alcohol. Those who are dependant on alcohol will have symptoms of withdrawal, possibly including delirium and even seizures, when the individual does not drink for ten to fourteen days.
Marijuana abuse, considered by some to be relatively harmless, can nevertheless cause problems for some individuals. In adults, the prevalent symptom is amotivational syndrome. Such individuals may be confused, unable to execute simple commands, or docile, and sometimes they have jobs which are below the level of their capability. Marijuana abuse by children may result in poor grades in school. Because marijuana use if often a social event, a child’s abrupt change of the child’s circle of friends may be an indicator of marijuana use.
Marijuana abuse is now believed to be more harmful than it was in the past, in part because modern growing methods have produced stronger marijuana. The active ingredient in marijuana, THC, is fat-soluble, and settles in body tissues which are comprised primarily of fat. One’s brain is compromised of eighty percent fat, so the drug’s effect on the brain of a child, which is developing, may be more severe than in an adult. Diagnosis of the past use of marijuana is relatively simple, as traces of it will remain in the blood for at least thirty days. Since it is fat-soluble, however, to the extent it settles in body fat, it may show up in the blood even a year later as the body fat dissolves.
Even the common drug caffeine poses problems for some individuals who may become dependant on it. Outside of familiar sources such as coffee and tea, caffeine is found in large concentrations in many common foods such as chocolate and peppermint. Heavy caffeine consumption may be indicated by insomnia, agitation, irritability, and suppressed appetite in individuals. Once caffeine use reaches the level where the individual is dependant on it, however, withdrawal symptoms can be quick and severe, and include headaches, nausea, diarrhea, and malaise.
A divorce lawyer for more than 25 years, Mike McCurley is a name partner in the Dallas family-law firm McCurley, Orsinger, McCurley, Nelson & Downing. During his year of service as president of the American Academy of Matrimonial Lawyers, McCurley raised awareness among both parents and legal professionals about the negative effects divorce has on children.
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