Information on how to deal with impaired clients, professionals and judges, and description of the programs for the treatment of impaired individuals.
By Mike McCulley, Family Lawyer
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.
XI. Drug Therapy
Many mental disorders are effectively treated with drugs, psychotherapy or a combination thereof. For many mental disorders, there are a number of effective drugs, and the better practice among physicians who manage these medications is to utilize the ones with the fewest adverse side-effects. Many drugs which were commonly used years ago have essentially been replaced by newer versions with fewer side-effects.
Depression may be due in part to an imbalance of certain chemicals produced by the brain, such as serotonin. Therefore, drugs which can regulate the level of serotonin are effective. Originally the drug of choice was prozac, and now a desirable drug is cymbalta. Cymbalta has the desirable quality of having few side-effects, and it is also effective in treating headaches and other pains. It is not fully effective, however, until two weeks after the treatment regimen has begun.
To treat anxiety, many new drugs have replaced older ones. Originally anxiety was treated with buspar, but today it is typically treated with xanax, valium, librium and klonopin.
Some drugs are useful in treating both depression and anxiety, such as zoloft. It is the only drug proven to effectively treat post-traumatic stress syndrome.
The management of medications has become so much a part of psychiatry that some psychiatrists manage medications exclusively and do not utilize psychotherapy at all. Unfortunately, though, many people suffering from mental disorders do not seek treatment by psychiatrists but instead look to their family doctors, or, in the case of women, to their gynecologists, for prescriptions. There is a tendency for such non-psychiatrists to prescribe drugs that bring quicker relief, but these are the drugs most subject to abuse. For example, xanax and ativan bring quick relief to anxiety and are subject to abuse because of the instant gratification they deliver. If a patient takes more than the prescribed dosage, however, and cannot get more, this may trigger a psychotic episode. Safer drugs are valium, which is a combination of fast-acting, intermediate-acting, and long-acting, and is a better choice. Klonopin takes three days to be fully effective, so if a patient is in immediate distress and klonopin is the drug of choice, one of the fast-acting drugs, such as xanax or ativan, may be used for the first two or three days and faded out when the klonopin becomes effective.
It is important to know that one drug may treat more than one mental disorder, because knowing the drugs an individual takes does not necessarily tell you what that person’s diagnosis is. A patient’s diagnosis may change as the patient’s disorder is more thoroughly studied, resulting in a change of medication, and sometimes a series of different medications may be tested on a patient being treated for one disorder, in order to find the most suitable treatment for that patient. Therefore, when a mental disorder is relevant to a lawsuit, the attorney should seek to discover the prescription drug history of the individual in question, as far back as possible, and should make that information available to a forensic psychiatrist for evaluation.
Pharmaceutical research is ongoing, and new drugs are continually hitting the market. One of the most promising areas of research is in the treatment of addiction. While there have historically been few drugs effective for those with alcohol dependance, other than drugs which would make an individual ill if alcohol were ingested, scientists are now in the process of developing drugs which reduce the craving for alcohol and which should prove much more effective than anything heretofore available.
XII. Representing the Substance Abuser in General
In representing the substance abuser, there is much you can do to help that individual recover, whether or not you anticipate a contested case.
First of all, it is essential to understand that denial plays a large part in addiction. Denial comes about when the body has become so tolerant of the substance that chemical changes in the brain bring about denial as an unconscious method of self-protection. In other words, the afflicted individual does not consciously realize the problem has risen to the level of addiction and therefore denies it. For this reason, do not be confrontational with such a client.
At all times, before and after getting your client professional help, be compassionate and listen to the client. The client is likely to allow you to assist only if the client has confidence in you and believes you are willing and able to help.
As soon as the client has confidence in your judgment, try to get that client to a mental healthcare professional with experience in the treatment of addiction. Sometimes this requires an “intervention”, which may take many forms. In any event, the intervention should be by the least invasive method which will work. Often it is effective to get friends and loved ones involved in the process, being careful not to violate the attorney-client privilege.
Once you have gotten the client into treatment, which typically will involve a twelve-step program such as Alcoholics Anonymous (AA), monitor the client’s AA log, get someone to monitor the client’s drug therapy if drugs are prescribed, and periodically have the client checked to make sure the proper level of medication is in the client’s system.
It is also important to meet regularly with the client’s mental health care professionals and with the client. Monitoring and treating the client’s stress is particularly important with a client who is addicted and going through a divorce or custody case.
Remember that denial does not necessarily go away during the course of recovery. Medications may treat the symptoms of mental disorders but they do not cure them. As the client progresses in recovery and feels better, the medications may be viewed as a sign of illness, which the individual unconsciously denies having. People have a tendency to go off their medications when they feel better, sometimes with disastrous consequences.
XIII. Representing the Substance Abuser in Trial
The issue of substance abuse is going to come up in many family law trials. Because there are so many misconceptions about it, it is important to know the basic information about it regardless of whether you represent the abuser or the non-abuser. Experienced family law judges may have knowledge of the subject from prior presentations, but remember that if child custody is involved, you may be trying your case before a jury, and you may have to learn to educate that jury about the subject. While this article will discuss alcohol abuse/dependance, many of the same principles will apply no matter what the substance. In many ways, addiction to alcohol or drugs is the same as addiction to gambling or potentially other destructive behaviors.
Some staggering statistics illustrate the enormity of the alcohol abuse problem, as follows:
(A) It is estimated that there are approximately seventeen million alcohol and drug abusers in the United States.
(B) Men are five times as likely to abuse alcohol as women.
(C) Twenty-five percent of sons of alcoholic fathers become alcoholics.
(D) Twenty-five percent of suicides result from alcohol abuse.
(E) More than one-half of murderers and their victims are intoxicated when these crimes are committed.
(F) Drunk driving results in over sixteen thousand traffic fatalities each year.
(G) AA has over two million members, in one hundred thousand groups worldwide. One million of these members are in the United States.
(H) Excessive alcohol use kills more than one hundred thousand Americans annually. Twenty-four percent of these are due to drunk driving, eleven percent are alcohol related homicides, and eight percent are alcohol related suicides.
(I) Fifty-nine percent of domestic violence involves alcohol consumption.
(J) About three million violent crimes occur each year, in which the victim believes the offender was under the influence of alcohol.
While genetics and other factors may play a part in the development of substance abuse in an individual, it is a misconception that one’s education and socioeconomic status are factors. In 1996, a study showed that people with less education and income-earning ability had about the same rates of alcoholism as the general community.
The greatest misconception about alcoholism is that it results from bad judgment (the “choice” concept). Modern thinking, verified by significant medical research, follows the “disease” model and has nothing to do with moral defect or weakness. Rather, alcoholism has a specific, predictable course and specific symptoms, no different than heart disease, cancer, or diabetes in that respect. Therefore, if you represent the alcoholic, the disease concept, as opposed to that of choice, should be the primary focus of your effort to educate the judge or jury. From your first to last remarks to the judge or jury panel, the disease concept must be emphasized and must be the central theme of your case if representing the substance abuser.
If you represent the substance abuser, and if that abuser is successfully recovering, the theme may be stated very simply and should be stated as often as possible. Family lawyer John McShane has offered the following succinct statement when representing a substance abuser in recovery: “My client has fought a courageous and successful battle against a fatal disease. She should not be punished with the loss of her children because of a disease over which she had no control and from which she has now recovered.”
If you have been involved in getting the client into treatment, as discussed in the previous section, you will have already put together a treatment team and you should already have some AA logs and other evidence of the on-going recovery process. At the early stages of the case, you should present as much evidence as you can of the recognition and treatment of the illness, for more than one reason. First, if recovery is in the early stages and substance abuse is expected to be a big issue in the final trial, you want to delay the final trial as long as you can so that the period of recovery will be greater when those issues are ultimately decided. Second, recovery not only takes time but may be expensive, so the cost of treatment should be presented in connection with the financial issues taken up at the first temporary hearing. Judges with a “rocket docket” should be persuaded that there are serious health issues which can affect children in such cases, and the longer the court has jurisdiction over the parties, the better the recovery can be monitored and directed. Further, the more the lawyer is involved in the recovery process, the higher the legal fees are going to be, so there may be a greater need for interim attorney’s fees than in other cases.
If your case is to be tried to a jury, you will find that there is a great deal of bias connected with the use of alcohol because of individual jurors’ education or the personal experiences of themselves or acquaintances. Therefore, it is critical that you cover the disease versus choice concept early on and that you inquire into the prospective jurors’ individual drinking habits. Any juror who tends to accept the choice concept, or who believes that alcoholism results from a lack of willpower or the like, should probably be struck.
Asking prospective jurors about their own alcohol consumption may seem invasive to them, and should be handled delicately. Note, though, that you must go beyond simply asking for a show of hands of drinkers versus non-drinkers. One who is a non-drinker because he or she believes drinking to be wrong or immoral may be the worst possible juror for the party who is recovering from addiction. On the other hand, one who does not drink because he or she has been an addict but who is successfully recovering is probably the best juror.
XIV. Opposing the Substance Abuser in Trial
When you oppose the substance abuser, and you wish to make an issue of the abuse in the early stages of the lawsuit, do not hesitate to be creative in your pleadings.
In some large metropolitan areas (including Dallas, Denton and Collin counties), the courts have adopted “standing orders” which impose standard injunctive provisions on both parties, even when neither party requests them. In such counties, if you are going to ask for special injunctive provisions to address substance abuse, be sure and follow the special pleading rules in those jurisdictions.
Generally speaking, knowing what to do when you represent the substance abuser should tell you what to do when you oppose that individual. If the opposing party, who denies there is a substance abuse problem or who claims to be successfully in recovery, has not put together a recovery team, does not produce AA logs, and who purports to be taking the proper medication but has not had that medication monitored by anyone, you can poke holes in that party’s recovery plan. For example, just because that person has a prescription and fills it regularly, that does not mean the person is taking the medication. Has that person been tested to see if the proper level of medication is in the system?
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.
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.