Lawyers and Addiction: The Law Firm Management Perspective by Marta-Ann Schnabel and Leah Rosa
I graduated from law school in 1981. This seems like just yesterday to me, but my associates often gasp at the revelation, as though I were a relic from the decade that brought us the Harding-Coolidge-Hoover administrations. In other words, I am less iconic than Mad Men and more boring than Vietnam and Watergate!
The 1980s saw lots of bad hair and clothes, but they are not nearly as famous as other eras in history for focusing on either excess or abstinence. Yet, my early career memories somehow all center on the “after-work drink.” We seldom indulged in the three-martini lunch, but partying til the wee hours of the morning was not unusual. At some point over the past 30 years, the “business” of the practice of law became more focused, and the tolerance for frivolity, even in the guise of practice development, declined. But our affinity for stress release through substance abuse has not!
Leah Rosa, MAC, NCC, LCC, a licensed professional counselor with Assurance Recovery Monitoring, points out that difficulties with mental health issues, including substance abuse, are a reality of the current landscape of the legal profession that cannot be ignored. A 2016 study published in the Journal of Addiction Medicine states that between 21 percent and 36 percent of legal professionals had Alcohol Use Disorders Identification Test (AUDIT) scores consistent with hazardous drinking or possible alcohol use disorder.
In light of that reality, law firm management must be prepared to confront these sorts of problems. Employment lawyers often advise clients to (1) devise a drug and alcohol policy; (2) conduct pre-employment screening; (3) implement an employee assistance program; (4) train managers to recognize signs of substance abuse; (5) create an anonymous tip line; (6) provide managers with an “action plan” once a suspected employee is reported; (7) investigate; and (8) follow up as required by policy. The question is how to implement our own legal advice when it comes to our colleagues and partners.
Addiction specialist Rosa urges that law firms approach substance-use issues with the well-being of the lawyer in mind, which leads to two primary aims. First, be proactive in establishing both policies and procedures that should be followed when these situations occur. Too often firms find themselves in situations in which they are behind the curve in addressing these issues and damage has already been done to the attorney and the firm. Second, firms should actively participate in protecting the lawyer’s confidentiality throughout the process of addressing any mental health or substance issue. Despite access to healthcare and resources, fear of harming their reputations is one of the primary barriers that prevent attorneys from seeking help.
Partners may be concerned that having these policies and procedures in place sends the message that substance use is acceptable. However, if a firm approaches alcohol and drug issues with a zero-tolerance policy, it actually increases the likelihood that employees with a substance-use issue will be enabled by colleagues, which results in coworkers who continue to work impaired. Because addiction is a chronic, progressive disease, the effect that it has on all aspects of an attorney’s life worsens with time. Addiction thrives in secrecy and silence, and employees are much less likely to bring up their concerns about a colleague in a zero-tolerance environment. After all, zero tolerance signals that anyone who admits to a problem will be severely penalized. This encourages coworkers to keep quiet when they have concerns. Similarly, if a firm has no policy, employees may conclude that the actual “policy” is to pretend that no problems ever arise.
Even in today’s competitive marketplace, attorneys often identify with the phrase, “Work hard, play hard.” It’s not uncommon for attorneys to spend time together socially, letting off steam after a big week or trial. Alcohol is often used to decompress, and lawyers often find themselves in social situations with colleagues and clients that revolve around eating and drinking. It can be difficult to discern when a colleague’s drinking veers off course and progresses over the line from use to abuse or addiction.
There are behaviors that occur socially and in the workplace that may signal that someone is struggling with a substance-use issue. Behaviorally, some signs include the inability to stop drinking after the person has started; drinking before arriving at events, or “pre-partying”; binge drinking, consisting of five or more drinks at a sitting; irritability when regular drinking time has been derailed by personal or professional obligations; blackouts; and engaging in behaviors that are extremely risky, such as driving while impaired.
In their personal lives, signs may include sudden and extreme changes in behavior or circumstance. Ms. Rosa notes that separation or divorce, social isolation, an increase in health problems, and financial difficulties can be indicators of mental health or substance issues.
In a lawyer’s professional setting, primary signs can include changes in the quality of the lawyer’s work product, a decrease in billable hours, chronic attendance problems, late filing of paperwork, or last-minute requests for continuances or additional time to complete a project. If the behavior becomes severe, it is often accompanied by an urgency to make more money. In smaller or plaintiff firms, attorney trust funds may be implicated. In larger or defense firms, heightened focus on expense reimbursements or time-sheet and billing manipulation are likely, or all of these.
Because of the flexible schedules of many legal professionals, detecting these signs can be difficult. Erratic behavior is most often noticed by office staff, and they may “enable” the dysfunction by covering it up or making excuses.
“Enabling” is usually progressive, and support staff often find that they do not know what to do in such situations, and they fear reprisal or job loss if they make a report. This causes the cycle to continue.
Colleagues and staff often don’t know where to turn if they suspect that a lawyer has a mental health, drinking, or drug problem. It would be very beneficial if law firms had a designated person within the firm (one familiar with substance and mental health issues) with whom lawyers and staff would be directed to meet in the event of concern about a colleague’s behavior. Of course, that person would need to be familiar with the firm’s policies and procedures for handling these issues appropriately, but certainly he or she would not need to be a mental health professional.
Law firms often underestimate the leverage and influence that they have to help lawyers who struggle with substance issues. Firms hold, in essence, both a carrot and a stick. Firms can require employees to get an evaluation from a licensed mental health professional specializing in substance abuse evaluations. If treatment is necessary, it is best if the employee is given the support to attend and is required to complete treatment as a condition of continued employment. After treatment, firms can support the employee’s attendance at aftercare and 12-step meetings such as A.A. or SMART Recovery. They may also support continuing counseling or other therapies deemed necessary for successful recovery by the treating professionals.
One emerging option is for law firms to require attorneys who have been through treatment to enroll in recovery monitoring as a requirement of continued employment. Recovery monitoring is a professional and confidential service that provides long-term, active, aftercare management. It consists of random drug screening, tracking attendance at 12-step meetings, and tracking follow through on therapy attendance and medication management. Monitoring provides individualized oversite by clinicians who specialize in substance-use disorders. One of the most valuable benefits of recovery monitoring for law firms is receiving compliance reports that provide circular communication among the person who has been through treatment, the law firm, and the treating professionals. Successful monitoring allows law firms to get back to business, while removing the need to police or worry that the employee is impaired. This sets up both the individual and the law firm for tremendous success in managing these difficult issues.
Of course, most state bar associations offer lawyer assistance programs. Those programs are often helpful in guiding law firms toward best practices in policies and procedures. The programs usually also offer their own version of recovery monitoring. However, for firms and businesses that desire private and confidential assistance, which includes management in the recovery process, private recovery-monitoring alliances have had great success.
In short, developing firm policies and approaches to recognize and deal with employees who suffer from mental illness, substance abuse, or both—and often these problems arise in concert— are important. Such policies not only serve an impaired lawyer or staff member, but they also serve a firm as a whole.
Marta-Ann Schnabel is the managing director and a founder of O’Bryon & Schnabel PLC in New Orleans. She is a past president of both the New Orleans Bar Association and the Louisiana State Bar Association. In over 30 years of practice, Ms. Schnabel has primarily represented clients in matters involving business and commercial litigation, construction disputes, insurance coverage issues, casualty defense, premises liability defense, and professional malpractice defense. Ms. Schnabel is the DRI Louisiana state representative and
the DRI Law Practice Management Committee publications chair.
Leah Rosa, MAC, NCC, LPC, is the founding clinical partner of Assurance Recovery Monitoring. Ms. Rosa is an addiction specialist who has worked in a wide variety of settings, including as the clinical director for a statewide nonprofit, where she provided addiction and mental health services, including monitoring, for attorneys and judges. Her experience in mental health and addiction issues allows her to work effectively with individuals and organizations as they approach these difficult issues.