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.
XV. Coping with the Impaired Client
Impaired clients suffering from mental disorders, whether they relate to substance abuse or not, can be difficult, and the last thing you want is to jeopardize your own well-being by dealing with them. Therefore, a few coping mechanisms are suggested as follows:
(1) First and foremost, remember that the individual is sick, just as if that individual had a purely physical malady.
(2) Have lower expectations of that client. Many such clients have difficulty with such simple tasks as filling our a monthly budget or writing their marital history. Have your paralegals assist them to the extent possible.
(3) Impaired individuals sometimes have a short attention span, so frequent, shorter appointments may be advisable.
(4) Do not be argumentative or confrontational with such a client, as this can be counterproductive.
(5) Educate your paralegal about your client’s disability, just as you have educated yourself.
(6) If the client is really difficult, take some time to meditate or gather your thoughts before facing that individual, keeping your coping mechanisms in mind.
Coping with disabled lawyers is sometimes all you can do, since you have less opportunity to help and direct them than with your client. While you certainly should be willing to assist any individual who comes to you for help, it is not likely to be your opposing counsel, and you may in fact find yourself the object of his wrath or criticism. Be patient. The opposing counsel who is disabled and who is not treated is likely to make false or misleading representations in correspondence and may otherwise make mistakes of which you can take advantage. The best advice is not to be confrontational when you are the object of the impaired attorney’s aggression and do not respond in kind. Such an individual is liable to make a fool of himself by the end of the case.
Judges pose a different problem because of the office they hold. While you should always be available for a judge who seeks your help, you should never be confrontational with a judge and should respect your professional boundaries. If your client is adversely affected, you should be prepared to take that up at the appellate level if necessary, and if the judge is not fit for the office, there are the ethical remedies discussed below.
XVI. Alcoholics Anonymous (AA) and Alanon
AA was conceived in 1935, and the first edition of the book “Alcoholics Anonymous”, describing the AA recovery program, was published in 1939. In essence, the recovery program prescribes the systematic accomplishment of twelve “steps” in the course of recovery. The following are the twelve steps:
(1) We admitted we were powerless over alcohol – that our lives had become unmanageable.
(2) Came to believe that a Power greater then ourselves could restore us to sanity.
(3) Made a decision to turn our will and our lives over to the care of God as we understood Him.
(4) Made a searching and fearless moral inventory of ourselves.
(5) Admitted to God, to ourselves, and to another human being the exact nature of our wrongs.
(6) Were entirely ready to have God remove all these defects of character.
(7) Humbly asked Him to remove our shortcomings.
(8) Made a list of all persons we had harmed, and became willing to make amends to them all.
(9) Made direct amends to such people wherever possible, except when to do so would injure them or others.
(10) Continued to take personal inventory and when we were wrong promptly admitted it.
(11) Sought through prayer and meditation to improve our conscious contact with God as we understood Him, praying only for knowledge of His will for us and the power to carry that out.
(12) Having had a spiritual awakening as the result of these steps, we tried to carry this message to alcoholics, and to practice these principles in all our affairs.
With respect to the twelve steps, please note that step 3, as well as several steps thereafter, refer to God, but step 3 also adds the italicized words “as we understood Him”. Because alcoholism, and, for that matter, addiction in general, is not exclusive to those who believe in the same God, or in God at all, the references to God should not be taken literally. The treatment plan is considered effective for people of all religions, or people of no religion, and God, in the context of the treatment plan, may be entirely different from the “higher power” around which religion may be centered. In fact, the “big book” of AA has a chapter called “We Agnostics”, which emphasizes that the main object of the book is “to enable you to find a power greater than yourself which will solve your problem”. God, the higher power guiding individuals through the twelve step program, may be anyone who knows how to recover, whose advice may be taken, and whose instructions may be followed. It may even be the AA group itself.
Because those suffering from addiction are in denial, and because denial is an unconscious reaction to long-term abuse of the substance or behavior in question, confrontation of the addict, in order to convince him or her of the need for treatment, is ineffective. Those who understand the illness and who are attempting to help similar sufferers, might converse with the addict about what their own behaviors were like before recovery, how they overcame their addiction, and how their outlook for the future has improved. Emphasis is on their behaviors and how those behaviors have affected others, will cause the addict, hearing these confessions, to relate to behaviors of his or her own, how they have effected others, and to a curiosity about what has caused those behaviors. Unconsciously, the addict makes the connection between the substance abuse and the behavior that has harmed the addict or others, and that there are those who have found a methodology to recover.
Addicts in recovery are never completely free of the possibility of relapse, and therefore ongoing therapy is almost always is essential. This therapy, of course, may be provided by a mental healthcare professional, but part of the success of AA is that it is comprised of a huge support group, which is available most anyplace and at any time, and it is free. Through AA, the recovering addict has a sponsor with greater experience in recovery, the fellowship of other AA members at meetings, the availability of meetings all over the world, and hotlines in case of emergencies.
All addictions have the same essential features as do many other mental disorders. Therefore, addiction and many other disorders are successfully treated through the twelve step program originally developed for alcoholics. The twelve steps themselves, in fact, can be tailored to the individual disorder. For example, reference to “alcohol” may be changed to “gambling” in the appropriate case, for purposes of working the twelve steps.
There are in fact 215 self-help groups known as “Anonymous”. Three of them are comprised of members who purport to be atheists or agnostics. All follow the twelve step program, as do non-drinkers who participate in Alanon.
The preamble of Alanon states that it is a “fellowship of relatives and friends of alcoholics who share their experience, strength and hope, in order to solve their common problems”.
All too often, the members of an addict’s family have endured the addict’s problems to the point that they are in denial that the problems exist or that they have contributed to those problems. By following the twelve steps themselves, they learn to appreciate that addiction is a family disease and that in order to help the addict recover, they must discover the part they have played in the disease and that they must play in the recovery process.
XVII. Ethical Considerations
While all lawyers are, or should be, aware of the basic ethical obligations they have to their clients, to each other, and to the court, they may be unaware that reporting certain misconduct in others is one of their obligations. Under Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct, lawyers “having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer’s…fitness as a lawyer…shall inform the appropriate disciplinary authority.” The same rule requires reporting a judge if there is “a substantial question as to the judge’s fitness for office”. The rule specifically addresses chemical dependency on drugs or alcohol, and mental illness, and provides that the report may be given to a peer assistance program rather than a disciplinary authority if chemical dependency or mental illness is the issue. A lawyer reporting to a peer assistance program, though, must also disclose other disciplinary violations that would otherwise have to be reported to a disciplinary authority. Rule 8.04 of the rules makes it an ethical violation to fail to comply with Rule 8.03.
A lawyer may, and should, report the suspicion of impairment to a peer assistance program even if no disciplinary violation is suspected. An astonishing fifty to eighty percent of all cases considered by grievance committees governing licensed professionals result from psychological or chemical impairment. With the quick intervention of the peer assistance program, it is hoped that the impairment may be treated before the lawyer commits a severe disciplinary violation which might jeopardize the lawyer’s practice.
It is important to note that a lawyer has no ethical exposure under Rule 8.03 for reporting another lawyer or judge, even if the lawyer has revealed information which might otherwise be confidential. Rule 1.05 (c)(4) holds that confidential information may be revealed when the lawyer has reason to believe it is necessary to do so in complying with the Texas Disciplinary Rules of Professional Conduct.
XVIII. Drug and Alcohol Treatment Centers
There are several good drug and alcohol treatment centers nationwide, and several are located in Texas [including] the Green Villa Treatment Center in Greenville, Texas, the La Hacienda Treatment Center in Hunt, Texas, and The Right Step, with seventeen Texas locations, as well as the Betty Ford Center, Sierra Tucson, and the Valley Hope Association.
XIX. Additional reading
The General Practice, Solo and Small Firm Section of the American Bar Association has, on three occasions, devoted its entire journal to mental health issues, and these provide some of the best additional reading available for members of our profession. The July/August 2001 issue of GP Solo is devoted to “Bumps in the Road”. This was followed with “More Bumps in the Road” in the October/November 2004 issue, and in October/November 2006, the publication was entitled “Bumps in the Road III”. For copies of these publications, please contact the American Bar Association or the authors.
We will unquestionably be dealing with mental disorders as a regular part of our family law practices. As these disorders are better understood and new treatments are developed, we are in a better position to steer our clients toward treatment than ever before, and, if we oppose the party with the mental disorder, we can emphasize its adverse consequences if left untreated. First, however, we must learn the basic symptoms of these disorders or at least know enough to know when professional mental health care should be implemented. While we are primarily advocates, and our goal is to “win” the contested issue, if, at the same time, we can cause our clients, or even the opposing parties, to recognize and treat their mental disorders, we have accomplished more than mere advocacy.
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.