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Aug 20

What to do about drunk lawyers

That lawyers have a drinking problem hardly comes as a shock.  Just go to Netflix and pull down any movie or TV serial about lawyers.  In the entertainment world, the expression “drunk lawyer” is almost as redundant as “lying politician” or “cheating husband.” So it wasn’t a stop-press moment when Patrick Krill told an audience of California State Bar overseers yesterday that his research showed rates of alcohol problems among lawyers at least twice as high as in the general population.  Not only alcohol, but also mental health issues and drug use runs higher in the legal profession.

Krill’s findings generally confirmed the numbers from the last study of this kind, done thirty years ago.  The neon finding in Krill’s work — something totally unexpected and counterintuitive — was that the highest rates of problem drinking, drugging, and depression/anxiety/stress are found among the younger lawyers.  No age bracket is immune, but the hotbed of the epidemic lies in the entry level, the junior ranks.  Moreover, Krill suggested, many new Bar admittees bring the problem with them. The monkey climbed on their backs already in law school.  Or before.

Studies of this kind trade in correlations, and correlations are not causation.  In the discussion after Krill’s talk, some felt that the State Bar might have an obligation to warn entrants that the law is a dangerous profession.  This on the theory that lawyer work is more stressful, more likely to drive you to drink, than any other.  But it may also be the case that young people who already drink, drug, and stress above average feel an attraction to the law because they see it as an environment where that’s cool.

Krill, as a professional researcher, didn’t take a position on that.  Correlation is not causation.  But as a licensed drug and alcohol counselor (his other hat) he pointed out that the private firms where most young lawyers start out typically have an alcohol-positive internal culture.  The firms put out alcohol at every social function. This subculture promotes drinking as the solution to every psychological and social issue.  No wonder that problems develop.

Krill’s audience included practically all the heavy hitters in the State Bar administration concerned with drunken lawyers. The panel, held in the San Francisco office of the State Bar on Howard Street, ran with a video linkup to a similar meeting at the Los Angeles office.  It included the administration and clinical staff of the Lawyer Assistance Program (LAP), the statutory twelve-member Oversight Committee of the LAP, members of the LAP Evaluation Committee, and representatives of the State Bar discipline programs, the Office of Trial Counsel, and the State Bar Court.

The occasion for the meeting was the release of a consultants’ report on State Bar operations generally, with a chapter on the Lawyer Assistance Program.  The LAP specifically addresses lawyers with alcohol, drug, and mental health problems.  The consultants’ report was not flattering.  It found that 76 per cent of the lawyers who enrolled in the LAP withdrew before completing the program.  Only eleven per cent finished.  Current enrollment is 136 lawyers.  Approximately 15 lawyers per year complete the program, just three more than the membership of the Oversight Committee.

California has about 250,000 active lawyers.  Taking Krill’s research as yardstick, at least 20 per cent of these have alcohol problems.  That would be upwards of 50,000 lawyers needing help.  WTF?  How is it possible that the LAP is enrolling about two tenths of one per cent of its client base?  And that the numbers who complete its program make up about one tenth of that two tenths of one per cent?

Given this perspective, it’s perhaps no surprise that the consultants recommended that the position of the Director of the LAP, who makes a Grade 55 salary ($105-155K), “should be eliminated or re-purposed.”  What’s more surprising is that the consultants refrained from recommending that the whole LAP effort be scrapped and rebuilt. To be sure, the recovery of even a single lawyer is cause for celebration.

How can the California State Bar do a better job helping drunk/drugged/stressed out lawyers and protecting the public?  Given Krill’s findings that the center of gravity of the issue lies with the younger cohort, the first question that needs asking is whether the LAP has been doing a good job marketing itself to the millennial age bracket.

The answer, judging by the contributors to yesterday’s panel, is a loud negative.  According to one veteran speaker, the LAP has long been in a “symbiotic relationship” with The Other Bar (TOB).  TOB is an affiliate of Alcoholics Anonymous and its support groups rely on AA’s twelve steps.  This approach was formulated 80 years ago.  It tells people they’re powerless over alcohol, that their addiction is a result of defects in their character, and that they have to surrender to a higher power to find recovery.  Every American court of appeals that has considered the twelve step program has declared it religious in nature.  See, e.g. Hazle v. Crofoot (Ninth Circuit 2013) 727 F.3d 983.

The “symbiotic relationship” between the LAP and TOB has meant, among other things, that practically 100 per cent of the Mandatory Continuing Legal Education presentations on Substance Abuse, which lawyers are required to attend to  keep their licenses current, feature speakers from TOB who present the twelve step program as the only path and the LAP as the doorway.  The speakers may wrap it in gauze, but the religious core of the appeal isn’t lost on lawyers, who are not dumb.

These religious appeals are pitched to an audience of millennials who are the least religious generation in American history. For the first time since records have been kept, those who answer “none” to questions about their religion outnumber those of every religious denomination.  Pitching the twelve steps to young lawyers is like pushing rotary telephones to smartphone users.  The white-haired veterans who run TOB and who have somehow wrapped themselves symbiotically around the LAP just don’t get it.  Twelve step programs are fine for some people — whatever works — but promoting this as The Solution for Everybody is guaranteed to lead to microscopic attraction and retention numbers.  Lawyers who reject this path aren’t in denial.  It’s the advocates who are in denial.

The symbiosis between LAP and the twelve-step group may be costly to the State Bar in more ways than miniscule participation and completion rates.  The Ninth Circuit federal court of appeals meets barely ten blocks from the Bar’s Howard Street office.  In its Hazle v. Crofoot decision, this court expressed sharp annoyance with state agencies (the Department of Corrections, in this case) who still did not understand that twelve step programs are religious in nature, and that conditioning any state benefit or penalty on participation in such programs violates the Establishment Clause.  That case settled for close to two million dollars. Unless the LAP-TOB symbiosis is broken, it’s only a matter of time before a LAP participant files a suit similar to Hazle v. Crofoot.  What an embarrassment to the State Bar that will be.  I mean, the State Bar is supposed to know the law, isn’t it?

There are other problems with the LAP, discussed in the consultants’ report.  But the key problem is that the LAP has allowed its brand image to be captured by a twelve-step group.  Such groups can do fine work in individual cases. But they were never intended as a universal solution, and their core appeal is radically out of sync with the younger generation.  And, if Krill’s study is correct, that’s where the heavy end of the problem lies, where help is most urgently needed.

Read the section of the consultants’ report on the California State Bar concerned with the LAP

Read Patrick Krill’s research publication on the prevalence of alcohol/drug/mental health problems in the legal profession

P.S.  Another interesting finding in Krill’s study is that the highest prevalence of drinking problems is among lawyers working in Bar Administration and Lawyer Assistance Programs.  Probed about this finding, Krill underlined that the figures are solid and that they represent current drinking practices, not past drinking by persons now in recovery.  Although the numbers are too small to allow statistical inference (N=55), they definitely raise eyebrows.  Krill declined to speculate about causes or remedies.

 

 

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