A heavy caseload of addiction

A little more than two years after a State Bar program to help alcoholic or drug-addicted lawyers was launched, 42 percent of the disciplinary court’s active caseload now involves attorneys with chemical dependency or mental health issues.

As of mid-June, 135 lawyers facing charges of misconduct before the State Bar Court are at some stage of involvement with the Alternative Discipline Program (ADP), a strict monitoring and intervention program in which discipline is held in abeyance while attorneys undergo treatment. Another dozen or so are under consideration for the program.

Remke

“I think we’re all really trying to feel our way right now, including the respondents,” said Judge JoAnn Remke, who helped create the bar court’s program. “You have [chemically dependent] attorneys in a revolving door system, and this is a way of intervening and getting them the help they need. I think it’s going well.”

The ADP, the only program of its kind in the country, was created in response to legislation sponsored by former Sen. John Burton, D-San Francisco, that requires the bar to collect $10 a year from every active attorney to assist lawyers with addiction or mental health problems.

Those funds, collected as part of the annual membership fee, underwrite the Lawyer Assistance Program, which helps impaired lawyers in the discipline system and those who have not committed misconduct. One-third of the attorneys enrolled in either or both programs are addicts, one-third have mental health issues and another third suffer from both afflictions.

When the LAP was created, bar officials and clinical experts hoped that by helping lawyers before they commit misconduct, the program would provide long-range payoffs by ultimately reducing the number of discipline cases. Although the program is too young to have seen such a result, its proponents say participants show virtually no recidivism. According to the 2004 State Bar discipline report provided annually to the legislature:

“Experience is beginning to show that respondents in the discipline system who participate in a Lawyer Assistance Program (LAP) structured recovery program are honoring their obligations to their clients and to the profession. Restitution is being paid, ethics education is being completed, and most important, there has been virtually no recidivism to date.”

Nearly 300 people are enrolled in LAP.

Participation in the bar court’s ADP program generally begins when bar prosecutors charge a lawyer with misconduct. The first step is referral to the ADP, which requires an attorney to contact the Lawyer Assistance Program to familiarize himself or herself with its requirements.

The attorney next enters into a stipulation with the bar and admits the misconduct. “We don’t do formal discovery,” says deputy trial counsel Cydney Batchelor, who prosecutes ADP cases fulltime. “But you have to step up and admit you’ve committed misconduct.”

The attorney must submit an evaluation from a professional establishing a connection between the misconduct and the substance abuse or mental health problem. If the court is satisfied there is a nexus, the judge determines two possible levels of discipline — a lesser punishment if the ADP is completed successfully, or a more severe punishment if the attorney is terminated from the program.

Simultaneous to the court proceedings, the attorney is evaluated by the LAP and, if accepted into the LAP, agrees to follow a plan with conditions established on a case-by-case basis. Weekly LAP meetings are required for most participants, and other conditions may include additional self-help meetings, random drug tests, individual psychotherapy and residential inpatient treatment.

In addition to the LAP participation plan, the attorney reaches an agreement with the bar court that requires no further misconduct, restitution and a waiver of objections to Client Security Fund payouts. Participants also may have to attend ethics school, take the multistate professional responsibility exam (MPRE) and may be suspended.

The attorney is monitored for 18 to 36 months and makes monthly court appearances.

Even those who complete the program successfully are likely to be disciplined, particularly those who commit serious misconduct. The discipline, which is held in abeyance for the duration of participation in ADP, is imposed when the program is completed. Three lawyers have graduated so far.

“ADP does not give respondents a free pass; it requires them to step up to their professional responsibilities in a closely monitored, lengthy and intense program of rehabilitation,” says Batchelor. “ADP works. It’s transforming lives and careers.”

A northern California partner in a successful plaintiffs firm agrees. Two attorneys in his firm are enrolled in the LAP and one, charged with serious misconduct, participates in the ADP.

Philip Conor (not his real name), said he had lost touch with a law school friend and when they ran into one another three years ago, the friend’s life was in tatters. He faced serious discipline, owed his clients money, his marriage was ending.

“My reaction was to help him,” Conor said. So Conor hired the man, who enrolled in both LAP and ADP and has pulled his life together. The attorney, in turn, recognized symptoms of alcoholism in a first-year lawyer at Conor’s firm and that individual was accepted in the LAP.

The two worked together on a recent multi-million-dollar case that Conor won, and he attributes much of that success to their efforts. “They are highly skilled, highly functional guys,” Conor said. “They are completely dry and are committed to staying dry.”

In addition to the attorneys’ commitment, Conor says the firm has to make a substantial commitment to them. A partner supervises the attorney with discipline problems, whose working hours are limited as part of his agreement with the court, and he often has to leave work for random drug and alcohol testing. The young lawyer said he wanted to drop out of the LAP because of the financial burden; Conor gave him a raise.

State Bar resources devoted to the two programs also are substantial. The LAP employs 10 people. Four prosecutors in work fulltime on ADP cases and two judges, one in northern California and the other in the southland, monitor the participants.

“It’s a lot of work, a lot of hands-on,” Remke said. “That’s what we’re trying to adjust to right now. We can handle the cases right now, but if the numbers grow and the filings in-crease, will we have to re-evaluate our ability to handle them?”

• LAP can be contacted at 1-877-LAP- 4-HELP or visit calbar.ca.gov/lap. Financial assistance is available.