Bar News - December 16, 2015
Opiate Epidemic Burdens NH Law Practices
By: Kristen Senz
New Hampshire lawyers see the impact of the state’s opiate addiction crisis up close in their cases, in their communities, in the media, and for some, even among their colleagues.
The problem “has really reached epidemic proportions,” NH Attorney General Joe Foster recently told the NH Bar Association Board of Governors. “Many states [have serious opioid addiction issues], but I will tell you, we are way worse than the rest of the nation.”
As community leaders who generally seek to assist people in distress, many attorneys struggle with how they can help or report the behavior of a person whose drug addiction may be putting the person or others in danger. Oftentimes, attempts to navigate the state’s scarce treatment resources and their own ethical obligations can leave attorneys feeling confused, frustrated or helpless to intervene.
“I know many lawyers are confronting substance abuse and addiction in their practices,” said NHBA President Mary Tenn. “These issues go beyond the criminal justice process and, whether the drugs are legally or illegally obtained, span a variety of different contexts.”
Encountering an addict or substance abuser is not uncommon in family law practice, employment law or housing matters, among others, and reporting it to the police is typically useless. “I think probably the police are overwhelmed, and they are not focusing on the user so much as the dealer,” says Foster. “You can certainly report, but I doubt most police departments are going to react to that.”
Assistance for Lawyers
Most attorneys are aware that the New Hampshire Lawyer Assistance Program is available as a confidential resource for attorneys struggling with substance abuse, whether their own or that of a family member, or who need to report concerns about a colleague. But the NHLAP, which is funded by a mandatory court fee bar members pay each year, is also available as a resource for attorneys with challenging clients and cases, said Cecie Hartigan, an attorney and executive director of the NHLAP.
“If a lawyer has a client who is doing heroin, and he’s trying to represent that client, that can be a problem for that lawyer, but it all depends on whether the lawyer sees it that way,” Hartigan said. “The system is burdened by addiction and addicts, so if a lawyer wants to learn more about the addiction issue in order to help a client, I am happy to assist them and, in that way, help make their practice more effective and their life less stressful.”
By providing education and support, as well as a level of understanding about the legal profession, Hartigan hopes to become the starting point for all New Hampshire lawyers who are forced to deal with substance abuse or addiction in some context, whether it be in their personal or their professional lives.
“I’m a ready resource for people on these issues,” she says. “I can send them a list of [treatment providers] that might be appropriate. I can kind of give them the big picture of what’s available and talk about what the case looks like based on my experience, which is substantial.”
Hartigan said family law attorneys especially have an obligation to intervene in cases of addiction that affect children. “It just goes to the heart of rendering good, long-term advice to people so that those long-term patterns that are harmful to people don’t just persist, and if they want my assistance with that, I’m happy to help, if they are at a loss about what to do,” she says.
“A lot of time, I’m simply helping people with the overall stress of the practice,” says Hartigan, “and these things are a huge burden on lawyers if they try to address it on their own.”
On the Front Lines
“You can certainly report, but I doubt most police departments are going to react to that.”
– Joseph Foster
NH Attorney General
Many New Hampshire lawyers and citizens in general don’t understand how long it takes for a person who is addicted to painkillers or other opiates to really get clean and stabilize their lives. Because the brains of addicted individuals are rewired by the drugs and the addiction, it can take as long as two years before meaningful treatment can even begin.
NH Superior Court Judge Jacalyn Colburn, a member of the NHLAP Board of Directors, sees the seriousness and the impact of addiction on a daily basis. She oversees the state’s newest drug court in Nashua, which has received two federal grants and currently has a total of 38 participants. She and the rest of the interdisciplinary drug court team use a system of frequent sanctions and rewards to help “high-risk high-need” offenders change their behavior over time, with the goal of keeping them out of jail or prison.
“These are folks we get to know very, very well, and we’re invested in not only their success in overcoming their addictions, but also in putting their lives back together,” she said.
The team understands what’s at stake and hopes to avoid the worst, but sometimes, addiction overpowers their best efforts. The night before Thanksgiving, Colburn learned that one of the drug court participants – a young man in his 20s – had overdosed and died.
“I knew this day would come,” she said. “I guess I was maybe naïvely hoping it wouldn’t… It hits home in a very personal way. As people, we are always going to say, ‘What should we have done?’ or ‘What could we have done better?” but in reality, if people are not in drug court, we’re going to lose a lot more of them… I hold onto that thought and keep fighting the fight.”
Colburn stresses that the people affected by New Hampshire’s opiate addiction crisis often don’t fit the stereotype of a criminal. The problem touches people of all different socioeconomic levels, ages, races, and ethnicities. “Right now, we’re in a dire place, and I think people need to really look at the seriousness of the problem that we have right now… As a community, we’re being very, very naïve if we think we can just do business as usual, because we can’t. It’s getting worse, and I see it day by day by day.”
A state matching grant program as a mechanism to help counties fund drug court is part of a bill now under review by a special legislative task force convened to combat the crisis. NH Superior Court Chief Justice Tina Nadeau says the program would provide assistance to counties who select drug court, which has been proven to reduce recidivism while saving money at both the state and county levels, as a corrections policy.
The bill would also establish the office of the statewide drug court coordinator, with a total of three staff members, to assist with start-up, certification, compliance, training and measuring outcomes for the state’s drug courts, at a cost of about $500,000 over the next biennium.
“The drug court is not for everybody,” Nadeau says. “It’s not going to solve the whole heroin epidemic. It’s not a silver bullet, but it is a good alternative for a specific category of offenders.”
Attorneys can read about the drug court legislation and other related bills on the General Court website and track any positions taken by the NH Bar Association using the Legislation Watch feature on the bar’s website.
Foster says it’s important for attorneys, as community leaders, to familiarize themselves with the issues and the legislative proposals, if the state is to find collaborative solutions to this complex and growing problem, which continues to be steeped in stigma. “One person is dying every day in our state,” he told the Board of Governors. “If it was from anything else, there would be an outcry.”
He recommended that lawyers read, Dreamland: The True Tale of America’s Opiate Epidemic, by Sam Quinones, for a detailed look at the issues. It shows how opiates “have really been woven into our daily lives due to prescribing patterns that years ago would have been considered unacceptable,” says Foster, recalling his own knee surgery, after which his doctor wrote a prescription for 30 painkillers, when he only needed four or five at most.
The number of prescriptions written for opiates quadrupled between 1999 and 2010, leading to the situation we have today in which the United States consumes about 80 percent of the world’s opiates. Foster’s office is investigating whether Big Pharma engaged in deceptive marketing to physicians that overestimated the painkilling properties of opiates and downplayed the potential for addiction. Meanwhile, there are no good, long-term studies on the effects of opiates, or whether they continue to work when taken for longer than 90 days.
Foster said the potent drug Fentanyl is exacerbating the problem on the streets. As much as 30 times stronger than heroin, Fentanyl is increasingly being found in the bloodstreams of overdose victims, often in combination with other drugs.
For attorneys in New Hampshire, dealing with substance abuse issues is nothing new, despite the near-daily media coverage and the political momentum gathering around the issue in Concord. The strain the problem puts on the justice system has been worsening for years, as the death toll continues to rise. The message Foster, Hartigan and others seem to be conveying is that instead of giving in to frustration and feelings of helplessness, attorneys can find answers to their questions and get involved in formulating solutions.
As Hartigan put it: “The legal profession is uniquely situated to have an effect on this ‘epidemic,’ as they are now calling it.”