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Bar News - November 3, 2006


Saving Lives, Protecting the Public: The Need for a Lawyers’ Assistance Program

By:

 Richard B. McNamara
Richard B. McNamara


Our profession is a vital one; it gives form to our society’s noblest aspirations. Yet its practitioners must deal with its citizens’ basest and darkest impulses. Ours is a demanding profession, which demands not only clarity of thought, but much more. Every lawyer knows that the profession is not only intellectually, but also psychologically, demanding. Lawyers must deal with other human beings at times of crisis in their lives: when they may be deprived of property or may lose rights to which they are entitled; when they may lose access to a child or their liberty; when they are called to account for their wrongdoing or falsely accused of wrongdoing.

           

History teaches that thoughtful people often have difficult personal lives. Henry David Thoreau observed in 1854 “that the mass of men live lives of quiet desperation.” And those who confront other’s problems frequently battle their own demons. Among others, Abraham Lincoln, Leo Tolstoy, and Winston Churchill suffered from bouts of depression their whole lives. Churchill called depression the “black dog,” and like many others attempted to compensate with heavy use of alcohol.

           

The stressful nature of a career in law is complicated by the personalities of many lawyers. The adversarial nature of lawyering sets it apart from other professions, according to Amiram Elwork, director of the Law-Psychology, Graduate Training Program at Widener University. In the article, “Stressing Yourself Sick,” (September 2006, ABA Journal), Elwork notes: “By definition, the adversarial profession is conflict ridden and conflict creates certain types of emotion like anger, guilt, and fear, which cause stress. Emotions have different components to them, including a physical sensation in your body—your heart goes up, your pupils dilate—and there’s a lot of data to demonstrate that chronic negative emotions are bad for you.”

 

An At-Risk Profession

           

Lawyers, in general, by dint of their personalities, tend to be more inclined to suffer the ill effects of stress. Dr. Steven A. Ager, a psychiatrist who specializes in the treatment of lawyers, was quoted in the September 2006, ABA Journal, as finding that lawyers tend to have personalities “in which they are not as aware of their feelings as most people.”

            Demands on lawyers have been exacerbated by the very real technological revolution which has occurred in the last few years. Lawyers can, and some do, consider themselves on call 24 hours a day. Every lawyer I know has received e-mails from adversaries or colleagues on holidays, weekends, or in the middle of the night. These advances in technology have enabled lawyers who have a perfectionist streak to drive themselves even harder, to the detriment of their health.

           

Moreover, the practice of law is undergoing tremendous change. It is simply not as remunerative as it once was. Competition among law firms has increased and the profession seems to be under assault daily. The public perception of lawyers is not a good one. All of us are human, and all of us resent disparagement of our profession after working tirelessly to solve clients’ problems.

           

It is no surprise then that current studies show that the incidence of serious depressive episodes and substance abuse is much higher among lawyers than among the general population. The Maine Lawyers’ Assistance Program asserts that lawyers abuse alcohol at a 50- to 80-percent higher rate than the general population does. A recent ABA study indicates that 50 percent of all disciplinary cases involve impaired lawyers.

           

The NH Bar Association has been helping lawyers through a volunteer program called the Lawyers Assistance Committee, headed by attorney John Tobin. In addition, there is also a stand-alone volunteer organization known as Lawyers Concerned for Lawyers, managed by Judge John Maher. Both programs have done extraordinary work. But the increase in the number of lawyers and the changes in the profession have outstripped the ability of volunteer programs to deal with these problems.

           

The vast majority of states have now established professional programs to deal with lawyers’ mental health and substance abuse problems. Illustrative of this is the program established in September 2002 by the Supreme Judicial Court in our neighboring state of Maine. This program has three purposes: 1) to protect the interests of clients and the general public from harm caused by impaired lawyers or judges; 2) to confidentially assist impaired members of the profession to begin and continue recovery; and, 3) to educate the bench, the bar, and the public to the causes of and remedies for impairments affecting members of the legal community.

 

Maine’s Success

           

The Maine program was established to prevent or alleviate problems before they jeopardize a lawyer’s or a judge’s practice and profession, as well as to offer help and assistance at any time. It has been tremendously successful. It has been used by Maine disciplinary authorities to establish a formalized probation program, making discipline more remedial rather than purely punitive.

           

A study by the Oregon Attorney Assistance Program (OAAP) provides convincing evidence that getting impaired lawyers into recovery saves dollars as well as lives and it protects the public. The OAAP, funded by the Oregon State Bar professional liability fund, provides a broad range of services to attorneys, including assistance with alcoholism and chemical dependency sobriety. A study was done in Oregon in 2001 involving 55 recovering lawyers who were in private practice for five years before their sobriety dates and five years after their sobriety dates, a 10-year period in all. The study showed that malpractice and discipline complaint rates for the lawyers before recovery were nearly four times greater than that of the lawyers in recovery. Applying Oregon’s average malpractice cost per claim to claims made against the 55 lawyers in the study, the study concluded that the reduced incidence of malpractice resulted in a savings of approximately $200,000 a year attributable to just 55 lawyers in recovery. The Oregon study stated that the savings to the Oregon State Bar disciplinary process are less quantifiable, “but it is obvious that sobriety brings savings that follow from the reduction in discipline matters in need of prosecution.”

 

Bar Suggests Funding Mechanism

           

The NH Supreme Court recently promulgated a rule proposing a professional lawyers’ assistance program for New Hampshire. The NHBA Board of Governors voted unanimously in May of 2005 to support such a program. But as is often the case, the devil is in the details. The cost of such a program, modeled on programs in other states, is estimated at $100,000 to $125,000 per year. After careful review and analysis, the board voted at its September 2006 meeting to recommend to the Supreme Court that the program be funded by a fee to be paid by each practicing attorney. However, because it is obvious that this program will reduce professional liability claims, and therefore demands upon the Public Protection Fund, by unanimous vote the Association Board also decided to recommend that the funds necessary to run the program be taken from part of the annual assessment for the Public Protection Fund.

           

Presently, there is more than $2 million in the Public Protection Fund. The Bar’s proposal is expected to result in a reduction of the amount of money paid by most lawyers annually, while preserving the fund, and likely reducing the number of claims against it.

           

The humanitarian reasons behind a professional lawyers’ assistance program are self-evident. The damage that untreated mental disease and substance abuse does to the lives of members of our profession is simply too devastating to ignore. But there is another reason for the Bar to support this program. The program demonstrably protects the public by reducing the incidence of malpractice claims and discipline claims, and claims on the Public Protection Fund.

 

It is not always the case that one can do good and do well for oneself. Here, the profession can do both by supporting funding of the NH Lawyers’ Assistance Program. I hope you will join me and the Board of Governors in support of this proposal.

 

 

Lawyers Assistance Resources

           

A lawyer is more likely to suffer from mental health or substance abuse problems than the average person. The NH legal community has two, peer-directed, confidential resources to help members of the profession struggling with these issues.

           

The NHBA Lawyers’ Assistance Committee (LAC), under NH Supreme Court rules exempting it from reporting requirements, provides confidential help for Bar members. To contact the Lawyers Assistance Committee, call 603-226-0871. The phone is answered 24 hours a day.

           

A second organization—independent of the Bar and the court system—also offers help to members of the legal profession in need. Lawyers Concerned for Lawyers of New Hampshire (LCL) meets on the first Tuesday of each month at 6:15 p.m. at the Manchester Country Club. No reservations are required. Call John at 603-436-8035 for information.

 

 

 

 

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