A Critique of Lawyers Concerned for Lawyers – Karen Marcus

Introduction

While alcohol and drug addiction is a widespread public health problem, lawyers and law students are particularly prone to fall prey to this epidemic. Lawyers are twice as likely to become addicted to alcohol or drugs as is the average American (1). About one-fifth of lawyers abuse alcohol; one-quarter of lawyers have used cocaine (2). For law students facing overwhelming workloads and strict curves, the drug of choice is the concentration-enhancing Adderall (3).

Because lawyers have a legally-binding fiduciary duty to serve their clients loyally and competently, the legal profession has been reluctant to admit that such a large percentage of lawyers use substances that affect their ability to effectively advocate (4). However, some legal organizations, such as Lawyers Concerned for Lawyers, have begun to bravely confront the issue.

Lawyers Concerned for Lawyers of Massachusetts (hereinafter LCLMA) is “the sole lawyer assistance program in Massachusetts exclusively dedicated to helping with the many personal and professional issues of life in the law” (5). Sponsored by the Supreme Judicial Court of Massachusetts and paid for by the yearly registration fee to practice before the Massachusetts bar, LCLMA reflects an important attempt by the legal community of Massachusetts to recognize and support the struggles of its members (6). One of LCLMA’s most important services is a public health intervention program for lawyers struggling with drug or alcohol abuse. LCLMA provides assessment services, peer support networks, and support groups for attorneys facing these addictions (6). While LCLMA’s addiction program has taken the unprecedented step in Massachusetts of facing this problem head-on and has provided invaluable services to the legal community, the intervention could be more effective. This paper will suggest that a sister organization to LCLMA that more carefully takes account of public health theories could better address the alcohol and drug addiction problem among lawyer. This paper will address three major flaws with LCLMA’s addiction intervention, suggest ways that a sister organization that avoids these flaws could improve on LCLMA, and explain how behavioral models and theories support these new methods.

Critique of Current LCLMA Approach to Attorney Addiction

LCLMA has three major flaws in its intervention to stop attorney alcohol and drug addiction. First, the program fails to address the root causes of attorney and law student addictions, assuming instead that these addictions stem from stress alone. Second, despite its best efforts to provide anonymity, LCLMA’s partnership with the legal entities responsible for punishing incompetent attorneys prevents lawyers from truly trusting their services. Third, the program makes only the most modest attempts at public education; its approach is almost entirely at the individual level.

Root Causes of Addiction Veiled by Illusion of Control

LCLMA attributes the disproportionate rate of attorney alcohol abuse solely to “personal and professional patterns of over-achievement, heavy workloads, intense competition, and daily stress” (7). Because LCLMA attributes alcohol addiction solely to individual lawyer stress, the main form of alcohol abuse prevention intervention it provides is individual counseling, either provided to overworked attorneys to forestall an alcohol addiction or provided to already addicted attorneys to help them stop drinking (6). Although stress is certainly a factor, this approach fails to acknowledge that several complex factors, rather than stress alone, make lawyers and law students uniquely susceptible to alcohol and drug addiction.

The need to concentrate for long periods of time on complex and detailed legal problems encourages the use of drugs that improve concentration or prevent exhaustion, such as Adderall and cocaine (3). New lawyers, suddenly catapulted to one of the highest pay grades in the country, can afford these expensive drugs much more easily than can the average American (8). The wealthy firms and companies that hire lawyers also often cater events that supply large amounts of alcohol (9). These networking events are touted to law students and young lawyers as the lifeblood of their burgeoning careers (10); alcohol consumption is the social lubricant always provided at these networking events.

If so many additional factors beyond mere stress exacerbate the problem of addiction among lawyers, why does LCLMA concentrate on stress alone? The theories of Optimistic Bias and of the Illusion of Control may explain why the lawyers who created LCLMA may have been reluctant to face these additional causal factors. The Optimistic Bias theory posits that individuals will always overestimate their chances of a positive outcome in any given situation (11). The related Illusion of Control theory suggests that individuals see themselves as being more capable of assuring their own success than is mathematically possible (12). LCLMA’s emphasis on stress suggests that the lawyers who created LCLMA may have fallen prey to these two types of thinking. While they laudably wanted to help their addicted colleagues, they may not have wanted to admit that they themselves could fall prey to addiction. The idea that the stress of competition and overwork alone causes alcoholism and drug addiction includes the veiled assumption that only those weak attorneys who cannot compete or keep up with the workload will succumb to these addictive behaviors. Looking through the lenses of these two theories, this assumption may have reassured the lawyers who started LCLMA with the notions that they were more in control than these weak attorneys. In contrast, the other causes of alcoholism among lawyers insist on the uncomfortable notion that any lawyer – even very good lawyers – can become alcoholics or drug addicts. After all, the most competitive lawyers may seek the edge that Adderall or cocaine might give them, the highest paid elite are the most capable of buying these expensive drugs, and every good lawyer knows the importance of networking. Perhaps because of optimistic bias and the illusion of control, LCLMA refuses to confront a number of major factors that cause attorneys to become addicted to alcohol and drugs. This flaw prevents LCLMA from being fully effective because LCLMA shapes its interventions around only one of several causal factors.

Lack of Trust Due to Stigma

The second flaw of LCLMA is its close association with the Supreme Judicial Court (“SJC”) and the Board of Bar Overseers (“BBO”) (6). LCLMA’s decision to connect with these organizations is understandable. The SJC and the BBO legitimize LCLMA, shows support by the most formal legal institutions in Massachusetts for provision of services to attorneys, and (perhaps most importantly) fund LCLMA (6). However, the close connection with these groups may prevent lawyers from trusting LCLMA enough to seek help.

The SJC and the BBO’s championship of LCLMA is admirable; however, these institutions face a major conflict of interest in funding and support LCLMA. As the highest court in Massachusetts, the SJC is responsible for maintaining the ethical standards within lawyers practicing at the Massachusetts bar. The SJC delegated part of this responsible to the BBO: the BBO’s sole purpose is to “investigate and evaluate complaints against lawyers” (13).

As previously mentioned, one of the most important ethical obligations lawyers, as fiduciaries, owe their clients is competence (4). Because drug and alcohol addiction can dramatically affect behavior and ability, an addicted lawyer may not be able to competently serve his client. The fact that this inability stems from disease or mental disorder does not negate this obligation. Failure to competently protect and advocate on behalf of clients can result in official sanction, loss of license, or even a malpractice suit for money damages; addiction cannot shield an incompetent lawyer from these consequences (14-15).

The threat of these punishments formalizes the stigma within the legal community that is associated with addiction. While the SJC and BBO have a legitimate interest in protecting attorneys’ clients, the side effect is to confirm the marginalization of all addicted attorneys. Labeling theory holds that stigmatization of mental illness and addiction can lead those facing these issues toward behaviors that add to the problem, including hiding the problem and withdrawing from friends and colleagues who might suspect a problem (16). In the case of addicted attorneys, fears of public exposure and loss of license could easily prevent them from seeking LCLMA’s help.

Because attorneys undergoing treatment for addiction may reveal incompetent behavior that amounts to ethical misconduct or malpractice, it is very problematic that LCLMA relies on the patronage of the two institutions responsible for punishing this misconduct. LCLMA attempts to resolve this conflict through anonymity policies that attempt shield attorneys from the SJC and BBO (17). However, these policies simply cannot solve the problem completely. First of all, true anonymity cannot exist in a group-service model, and LCLMA exhibits the typical chinks in the armor: attorneys seeking help will bump into their colleagues in the hallways and the group support listservs are not anonymous. Nor can LCLMA claim that BBO is entirely hands-off; in fact, the BBO often supervises the LCLMA services provided to an already-sanctioned addicted attorney fulfilling the rehabilitation requirements to be reinstated after loss of license (18).

No matter what assurances LCLMA provides, LCLMA will never convince attorneys of their safety from punishment. Because LCLMA is so closely connected to the two institutions that regulate behavior within the legal community, addicted lawyers fearing sanction may never feel entirely comfortable seeking help from LCLMA.

Lack of Public Education Focus Due to Lack of Group Models of Behavior

LCLMA’s third flaw is its failure to use group models to understand and combat lawyer addiction. As discussed above, LCLMA emphasizes only the stress and overwork causation factor of lawyer and law student addiction. One of the problems that stem from this focus is an individual-model level theory of intervention. The theory that only the lawyers who cannot quite cut it and succumb to stress and overwork become alcoholics implies the further idea that alcoholism is a private, individual problem. Because LCLMA sees alcoholism and drug addiction as problems that affect individuals at only the most private level, the focus of LCLMA’s work is in providing one-on-one counseling, referrals, and small support groups to addicted attorneys seeking help (18). While counseling addicted attorneys is incredibly important, LCLMA does little work to prevent addiction before it starts. The extent of their preventative work is narrow: they “from time to time” provide presentations and they publish materials on addiction usually written by other groups (19-20). LCLMA could be much more effective in preventing drug and alcohol addiction among attorneys through a public health campaign that reaches all law students and practicing attorneys as a group. Currently, LCLMA artificially limits its impact by dealing with attorneys one by one only after they have already developed a problem.

Proposal: A sister organization

After analyzing the three main flaws that prevent LCLMA from more effectively combating addiction within the legal community, it is possible to consider how a new and improved sister organization to LCLMA could avoid these pitfalls and better fulfill this admirable goal. This new organization devoted to addiction problems alone would be separated from LCLMA – and from the LCLMA’s affiliation with the SJC and the BBO. While the new organization would continue to provide the same individual counseling that LCLMA provides, it would also provide a number of other programs.

A great deal of its work would be focused on public health campaigns aimed at preventing the average lawyer or law student from becoming addicted to alcohol or drugs. These campaigns should include regular presentations to law schools and firms on safe behaviors and prevention. There would also be presentations that combat some of the root causes of addiction rather than addiction itself. For example, the organization could provide presentations on how to safely improve concentration, on the importance of avoiding drinking too much at networking events, and on money management. Such campaigns would be supplemented by a new, brighter, more complex website that would provide information to average lawyers and not simply to those seeking intervention services. This information would be presented in the form of personal stories of successful attorneys who overcame an addiction.

Perhaps the most important services it could provide would be services to solve some of the problems – including stress – that lead to addiction without introducing alcohol. The organization could do so by presenting itself to the majority of the legal community as an organization that encourages a better quality of life for all attorneys in order to prevent addiction. For example, the organization would have a section of its website devoted to links to stress-reducing “splurges” that attorneys could take advantage of over their brief breaks, including popular spa visits or weekend getaways. Most importantly, the group could provide regular networking functions that provide non-alcoholic drinks and food. By inviting all members of the legal community to these functions under the auspices of an organization dedicated to improving quality of life for attorneys, the group could promote awareness of addiction prevention while also directly combating the causes of this disease.

Defending the New Organization

Although the current LCLMA provides valuable services to Massachusetts attorney, the proposed new sister organization would solve the three major problems that prevent it from being more effective. Firstly, the expansion of public education programs and services that attempt to solve some of the problems that lead to alcoholism and drug addiction would address the root causes of attorney addiction. Secondly, the separation of this group from the SJC and BBO would assuage any fears addicted attorneys might have of being punished for seeking help. Finally, the new public education programs and services would help to change the legal community as a group rather than focusing on one individual at a time.

Defense #1: Address the Root Causes of Addiction

The first major correction the new sister organization makes to LCLMA is to address directly the multiple factors that cause and exacerbate addiction among attorneys and law students. Because many students and attorneys drink in the context of networking events, the new group will sponsor networking events that do not involve or encourage alcohol. To address both the stress of lawyering and the impetus of highly motivated lawyers and law students to do above average work over long periods of time, the group will provide alternatives to Adderall and cocaine by advertising relaxing and rejuvenating products, services, and trips. To counter the temptation to buy expensive drugs that many young lawyers face when they suddenly can afford them, the organization will provide money management seminars. The sister organization will also aggressively market the need for preventative techniques to average attorneys and lawyers by making many presentations at law schools and firms and by providing extensive materials on a user-friendly website.

By addressing the aspects particular to the legal field that cause individual addictions, the new organization will be much more effective than LCLMA. The social structure of lawyers as a group shapes the disease of addiction that haunts the legal community (21). Only by addressing all the different factors that cause attorney addiction will a service group be able to effectively intervene to stem the epidemic; by refusing to do so, LCLMA doomed itself to individual-based interventions rather than group-based preventative measures (22). By addressing the causes of addiction within the legal world, the new sister organization will structure its resources in a way that promotes a new culture of addiction prevention within the legal community (23).

Defense #2: Acknowledge & Protect Against Stigma

By severing ties with the SJC and BBO, the new sister organization will earn the trust of addicted attorneys. These attorneys will be more likely to seek help from the organization once they are assured that no groups associated with the organization have an incentive to punish their behavior. Although the LCLMA’s connection with these organizations showed that the official arbiters of attorney conduct approved of the organization, these arbiters could express their approval in less intrusive ways, as through simple statements of approval. Their affiliation with LCLMA attempted to ignore the stigma associated with attorney addiction; this merely encouraged those stigmatized to hide their addictions and engage in self-destructive behavior (21). While the public education aspects of the new group may help to address the stigma, the most immediate and important step to take is to acknowledge that the stigma exists and avoid subjecting addicted attorneys to the stigmatizing of their peers (24). The new sister organization will be more effective because it addresses the feature of stigma specific to the legal community: the fact that exposure could lead to official condemnation and loss of license (25). By refusing the involvement of official attorney conduct oversight boards like the SJC and BBO, the new group will reassure addicted attorneys that they can seek help without risking their careers.

Defense #3 – Approach Incorporates Group Models

In addition to combating the causes of addiction, the new prevention approach also takes advantage of several group behavior models. For example, by reframing the sister organization from an organization that helps addicted attorneys to one that seeks to improve the lifestyle and help the careers of all attorneys (while also promoting awareness of addiction), the group takes advantage of one of the core tenets of marketing theory (26). Instead of selling attorneys what the group thinks they should want (to avoid alcohol and drugs), the group sells attorneys on what they do want (better careers and easier quality of life) (27).

The new group’s emphasis on creating networking events will be particularly important to reaching its goals. By helping reframe the group under marketing theory to one that “sells” better careers under marketing theory, the sober networking opportunities actually help to provide these better careers (13). This action takes advantage of Maslow’s Hierarchy of Needs (28). Scholars since Maslow have argued that order of needs for a particular group of people is context-specific; because the legal community is defined by people engaged in a particular career, the stability of the career is a very low order need within that community (29). Because maintaining the security of a stable career is a lower order need than is health for attorneys, the new group focuses on satisfying the higher order need only as part of providing for the more immediate need. The networking focus also takes advantage of the theory that health-related behaviors spread through social networks (30). These sober networking events will promote a healthy behavior – networking without alcohol – and diffuse it through the new networks of colleagues created at these events (31). The new sister organization will therefore be more successful than LCLMA because it structures its more robust addiction prevention campaign around several of the most innovative group-level theories of behavior.

Conclusion

In conclusion, LCLMA is a valuable resource to attorneys in Massachusetts that nonetheless could be more successful if it addressed several of its structural problems. In particular, LCLMA does not address the many root causes of attorney addiction, does not provide the true anonymity to addicted attorneys that their stigmatization within the community requires, and does not utilize group-level theories of behavior. The sister organization proposed above would solve these problems by reframing itself to address these root causes of addiction, by acknowledging the stigma of addiction and separating itself from organizations that may seek to punish addicted attorneys, and by structuring its addiction prevention campaign around several group-level behavior theories.

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