Help for Addicted Attorneys
By Alex Ricciardulli
Edited by Peg Healy
Category: Special Credit--Substance Abuse
In November 2000 California's voters enacted a comprehensive drug initiative (Proposition 36) to divert thousands of addicted offenders into treatment and rehabilitation. Many defendants formerly facing certain jail time must now be sentenced to probation and treatment. This sea change in the state's criminal laws has recently been augmented by the Legislature's enactment of a diversion and treatment program for lawyers who have substance abuse problems or mental illness.
Senate Bill 479, written by Senator John Burton (D-San Francisco) and sponsored by the California State Bar, was approved by the Legislature and signed by Governor Davis in July 2001, enacting the Attorney Diversion and Assistance Act (Bus & P C §§6230-6238). The new legislation is not geared to keeping addicted attorneys out of jail but instead is aimed at saving their bar cards. The bill creates a confidential diversion and assistance program that a lawyer can enter either voluntarily or through referral by the State Bar. Lawyers who successfully complete the program are eligible for dismissal of discipline allegations or a reduction in the recommended discipline. Bus & P C §6233.
Support for the new program comes from a fee of $10 added to active lawyers' State Bar dues. However, attorneys participating in the program pay for their own treatment costs. Under the legislation, the State Bar must also provide financial assistance to ensure that no member is denied acceptance into the program solely due to lack of ability to pay. Bus & P C §6235(b).
The new lawyer-diversion law reflects the reality that the State Bar has the full power and authority to impose discipline, including disbarment and suspension, regardless of the outcome of a criminal case against an attorney. Even if a lawyer has criminal charges dismissed or is acquitted, the State Bar can impose discipline. See Hawkins v State Bar (1979) 23 C3d 622, 627. Of course, possession and use of some addictive substances is wholly legal, but the new diversion law reaches out to professionals who abuse alcohol as well as narcotics.
The magnitude of the problem is tremendous. As of December 30, 2003, the California State Bar has more than 145,500 active members. Using information from a 1988 medical study from Washington state, the American Bar Association's (ABA) Commission on Lawyer Assistance Programs has estimated that 15 percent to 18 percent of the nation's lawyers abuse alcohol or drugs (see www.abanet.org/legalservices/colap/home.html). If the numbers hold true for California, that would mean that more than 20,000 lawyers are potential candidates for treatment.
According to the ABA, the bar associations of all 50 states have developed lawyer assistance programs or committees that use intervention, peer counseling, and referral to twelve-step programs. The California Legislature looked particularly at the programs in Washington state, Oregon, Texas, and Florida in proposing the new California attorney diversion program.
An addicted California lawyer can obtain help through a variety of ways. Law professionals actually charged with criminal offenses because of possession or use of illegal drugs can avail themselves of Prop. 36 treatment programs or Deferred Entry of Judgment (DEJ) to wipe their records clean. To stave off or preempt State Bar discipline, lawyers can enroll in the new attorney-diversion program. They can seek help from established attorney alcohol and substance abuse programs sponsored by the State Bar, such as The Other Bar and The Lawyer's Personal Assistance Program, or numerous other reputable organizations and programs.
Criminal Charges and Diversion
Denial is a powerful psychological phenomenon. For many people (including lawyers) who abuse alcohol or drugs, the first occasion they are forced to acknowledge that a problem exists is when a police officer catches them drunk behind the wheel or holding a cocaine pipe. Then they sober up in a local jail. Those convicted of driving under the influence of alcohol have long been required to participate in alcohol education programs as a condition of probation.
Diversion from criminal drug charges entails navigating the intricacies of Prop. 36 or DEJ, both of which divert from criminal prosecution only people charged with simple possession or being under the influence. Trafficking charges are excluded (Pen C §§1000(a), 1210(a)), and other eligibility limitations apply. Both programs require the defendant to attend and complete a certified or approved drug rehabilitation program. When the treatment is complete, the defendant's conviction is erased from the record. The goal of both programs is rehabilitation rather than punishment, but there the similarities end.
A defendant is not eligible for DEJ if he or she has ever been convicted of any prior drug offense, even a crime such as possession of less than an ounce of marijuana. People v Paz (1990) 217 CA3d 1209. However, under Prop. 36, defendants can have drug convictions on their records and still be eligible for treatment. Pen C §1210.1(b). Furthermore, defendants can join DEJ only if they plead guilty; defendants are eligible for Prop. 36 treatment whether they plead guilty or are convicted after trial. Pen C §§1000.1(b), 1210.1(a).
Some addicted lawyers might have to avail themselves of DEJ instead of Prop. 36 because, although the overall eligibility criteria for Prop. 36 is looser than DEJ, Prop. 36 has some restrictions not found in DEJ. For example, people are ineligible for Prop. 36 when, in addition to the current drug offense, they are convicted in the same proceeding of (a) a misdemeanor not related to the use of drugs, or (b) any nonqualifying drug felony. Pen C 1210.1(b). Yet a person can participate in DEJ regardless of whether he or she is charged and convicted of an additional crime at the same time. See People v Fulk (1974) 39 CA3d 851 (Vehicle Code violation).
Diversion from Discipline
In enacting the Attorney Diversion and Assistance Act, the Legislature stated its intent that the State Bar seek ways and means to identify and rehabilitate attorneys with impairments due to abuse of drugs or alcohol, or mental illness, affecting competency, so that they may be treated and returned to the practice of law in a manner that will not endanger the public health and safety. Bus & P C §6230. Alcohol and substance abuse were the chief problems addressed by the act, but mental illness was also included within the new law's scope. This inclusion was undoubtedly a result of ABA estimates that, in addition to the estimated drug- and alcohol-dependent lawyers, another 10 percent suffer from some form of psychological distress. See Senate Comm. Judiciary Report on SB 479, p. 2 (May 1, 2001). Of course, mental illness and substance abuse often go hand in hand.
According to a report prepared by the California Senate Office of Research, entitled "Protecting the Public by Assisting Addicted Lawyers in Overcoming Substance Abuse" (February 2001), substance abuse and mental illness are factors in a significant share of the malpractice and misconduct charges filed against members of the legal profession. The ABA's Commission on Lawyer Assistance Programs recently reported that a majority of lawyer disciplinary problems involve chemical dependency or emotional stress.
The new attorney diversion act establishes a committee to oversee the operation of the program, composed of twelve members, with representatives appointed by the State Bar Board of Governors, the governor, the Senate Rules Committee, and the speaker of the Assembly. Bus & P C §6231. The new committee is required to establish practices and procedures for the acceptance, denial, completion, or termination of attorneys in the Attorney Diversion and Assistance Program and may recommend rehabilitative criteria for adoption by the State Bar Board of Governors for acceptance to, denial from, completion of, or termination from, the program. Bus & P C §6232.
There are three ways that a lawyer who is currently under investigation by the State Bar can be referred to the attorney diversion program: (1) by referral from the State Bar's Office of the Chief Trial Counsel, (2) by referral from the State Bar Court following the initiation of disciplinary proceedings, and (3) voluntarily. Bus & P C §6232(b). Self-referrals must comply with terms and conditions agreed on by the attorney participant and the chief trial counsel or on approval by the State Bar Court, as long as the investigation is based primarily on mental illness; the self-administration of drugs or alcohol; or the illegal possession, prescription, or nonviolent procurement of drugs for self-administration; and does not involve actual harm to the public or the attorney's clients. An attorney seeking self-referral may be required to execute an agreement stating that violations of attorney professional conduct statutes, or other statutes that would otherwise be the basis for discipline, may nevertheless be prosecuted if the attorney is terminated from the program for failure to comply with program requirements. Bus & P C §6232(b)(3).
An attorney who is not the subject of a current State Bar investigation may join this program on a confidential basis. This confidentiality is absolute unless waived by the attorney. Bus & P C §6232(d). Lawyers joining under this provision might do so in anticipation of the commencement of an investigation, or simply to spare themselves and the people around them the consequences of drug and alcohol abuse.
Neither acceptance to nor participation in the attorney diversion program relieves the attorney of any lawful duties and obligations otherwise required by law or agreement. Bus & P C §6232(c). Any attorney under investigation by the State Bar who enters the diversion program may be required to agree to practice restrictions such as scope of practice and monetary accounting procedures. Bus & P C §6233.
Benefits of Diversion
The anticipated advantages of the diversion program include: (1) protecting the integrity of the legal profession, (2) significantly reducing the harm inflicted on clients and the public by impaired lawyers, (3) reducing the number of disciplinary complaints and malpractice claims, (4) providing an effective alternative to disciplinary actions, (5) permitting oversight of lawyers' compliance with requirements for treatment as part of disciplinary actions, and (6) raising public and peer awareness of the problems of lawyer impairment due to substance abuse or mental illness. Senate Report on SB 479, p. 5.
Perhaps the biggest selling point that led to the adoption of the Attorney Diversion Act was that it might save a significant amount of money by reducing the number of disciplinary proceedings. The act was modeled on a 20-year-old program run by the Medical Board of California to deal with doctors who have drug, alcohol, or mental problems. Statistics from the physician program indicate that for the $3,225 spent on each physician in the diversion program, $29,000 is saved for each rehabilitated physician who avoids disciplinary action.
For the individual lawyer, the benefits of successful completion of a diversion program are substantial: It can save his or her bar card. The Legislature is constitutionally prohibited from mandating that when a lawyer completes diversion, disciplinary charges against him be dropped, because the final say in a disciplinary decision comes from the California Supreme Court. "In California, the power to regulate the practice of law, including the power to admit and to discipline attorneys, has long been recognized to be among the inherent powers of the article VI courts." Hustedt v Workers' Compensation Appeals Bd. (1981) 30 C3d 329, 336; see also Bus & P C §6237 (acknowledging legislative deference).
Nonetheless, on the successful completion of the program, attorney participants who have complied with all conditions of probation are eligible for reinstatement to active status and a dismissal of the underlying allegations or a reduction in the recommended discipline. Attorneys who have participated in the program with practice restrictions are eligible to have those restrictions removed and to dismissal of the underlying allegations or a reduction in the recommended discipline. Bus & P C §6233. Although these disciplinary results cannot be constitutionally mandated, they are strongly suggested outcomes and will likely be enforced by the State Bar Court.
As the old saying goes, you can lead a horse to water, but you can't make him drink. Or not drink, it could be added. There are an abundance of programs and services available in the community for a lawyer with a drug or alcohol abuse problem. But an attorney needs the will to face up to the problem, as well as a phone to call for help, or a computer to access a website.
The Other Bar was created to help lawyers who have problems with alcohol or drugs. It has about 750 lawyer-members who attend weekly statewide meetings and provides a 24-hour hotline at 800-222-0767. This organization is a private, nonprofit corporation funded by private donations and grants. It functions on a strictly confidential basis and offers referrals and counseling. Its website, which contains information and links, is www.otherbar.org.
A useful tool provided by the Other Bar is a self-test specifically tailored for lawyers to help them determine if they are addicted to drugs or alcohol. The test asks 20 poignant questions, including, "Have I missed or adjourned closings, court appearances, or other appointments because of my alcohol/drug use?" "Am I fooling myself into believing that drinking at business lunches is really necessary?" "Do I ever use alcohol/drugs before meetings or court appearances to calm my nerves, gain courage, or improve performance?" "Could disturbed or fitful sleeping be the result of my alcohol/drug use?" "Am I becoming increasingly reluctant to face my clients or colleagues in order to hide my alcohol/drug use?" "Do I frequently use alcohol/drugs alone?" Under the self-test, an affirmative answer to any of the questions means that the lawyer should seek help.
The State Bar operates The Lawyers Assistance Program. This group officially started operating in 1987 to help lawyers and their family members deal with stress, burnout, depression, chemical dependency, and other problems that might be related to the practice of law. Lawyers can obtain free, knowledgeable, confidential advice and referrals from the program. The program does not have a dedicated website, but it can be reached at 800-436-6644. Some more information can be found at www.calbar.org/2eth/3lpap/lpap_ index.htm.
Finally, the International Lawyers in Alcoholics Anonymous was established in 1975 and provides a bridge between lawyers who are reluctant to recognize they have a problem and Alcoholics Anonymous. Interested lawyers can contact the group by email at firstname.lastname@example.org or through its website: www.ilaa.org.
Alex Ricciardulli is an appellate attorney in the office of the Los Angeles County Public Defender.
Article updated: December 2003