|Members Present |
Alice Senechal, Chair
Judge Karen Braaten
Dr. Richard Olafson
|Members Absent |
|Others Present |
Barbara Harper, Director, Lawyer Services Department, Washington
State Bar Association
Bill Leary, Director, Lawyer Assistance Program, Louisiana
State Bar Association
Paul Jacobson, Disciplinary Counsel
Cheryl Tryhus, Program Coordinator, ND State Bar Association
Chair Senechal called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (November 9, 2001) - minutes of the September 14, 2001 meeting..
It was moved by Randy Lee, seconded by Marilyn Foss, carried unanimously that the minutes be approved.
Lawyer Assistance Program
Following introductions, Chair Senechal welcomed Barbara Harper, Lawyer Services Department, Washington State Bar Association, and Bill Leary, Lawyer Assistance Program, Louisiana State Bar Association, for a discussion of lawyer assistance programs in their respective states and observations generally about establishing a lawyer assistance program. Both are also members of the American Bar Association's Commission on Lawyer Assistance Programs.
Barbara Harper explained that the Washington lawyer assistance program began in the mid-1980's at the request of a group of volunteer lawyers in recovery. She said the program was established with a fairly broad focus, addressing not only problems associated with alcohol but with other forms of substance abuse that affected lawyer conduct. She said she joined the program in 1987 as a clinician and assistant director. To more adequately address substance abuse issues, she said the program hired an individual with a Ph.D. in addictionology, and the program currently has three clinicians on staff. She said having a lawyer in recovery involved with program, which is the case with her program, is a distinct advantage. Referring to distributed information concerning the Washington program, she noted that the Washington Supreme Court adopted a rule providing confidentiality for those involved in an assistance program. A copy of the information is attached as Appendix A. She said the confidentiality provision was initially included in the Rules for Lawyer Discipline, but has since been relocated to avert perceptions that lawyer assistance was involved with lawyer discipline and to ensure maximum reporting.
Bill Leary said the Louisiana effort in lawyer assistance began in 1985 when a lawyer attended an ABA Annual Meeting and learned that some states had begun establishing programs to help lawyers with alcohol and substance abuse problems. After assembling information on assistance programs, he said, the state bar association was approached about establishing a 1-800 number as a contact method for lawyers with abuse problems. After the number was put in place, he said, it became clear by the absence of calls that people with problems would not contact the bar association and admit a problem. It was subsequently suggested, he said, that to be effective lawyers must know the contact and assistance would be confidential. Thereafter, he said, a confidentiality rule was adopted by the Louisiana Supreme Court. He said a statute was later enacted that provided confidentiality, as well as immunity to the director of the program and to members of the program's committee on alcohol and drug abuse. He noted that the statute has been tested in state and federal court and the program has never been required to divulge any information. Copies of the rule and statute are attached as Appendix B. He said the program conducts monitoring for the lawyer disciplinary system, the court, law firms, and individuals who seek to enter a recovery program. He said those participating in the program enter into a recovery contract that requires attendance at a certain number of recovery meetings per week and attendance at lawyer support group meetings.
With respect to the number of lawyers that have substance abuse problems, Bill Leary said it is generally thought that approximately 10 percent of the American population have an alcohol problem. It is estimated, he said, that 18-22 percent of those in the medical and legal profession have some form of substance abuse problem. He said his experience indicates that that is a fairly accurate estimate. Additionally, he noted that mental health problems are emerging as equally important matters requiring attention.
In response to a question from Randy Lee, Barber Harper said that less than 5 percent of lawyers in the Washington program have been referred to the program by disciplinary counsel. Bill Leary said approximately 16 percent of those in the Louisiana program have been referred by disciplinary counsel. Both agreed that most program participants are self-referrals.
In response to a question from Marilyn Foss concerning the use of lawyer assistance programs as opposed to other programs, Barbara Harper said lawyers rarely use employee assistance programs, for example. Lawyers tend to come to lawyer assistance programs, she said, because they have received a substantial amount of information about the program and have the assurance that their participation is confidential. Bill Leary said he has found that attending lawyer support group meetings is often a means of easing into other kinds of programs, such as Alcoholics Anonymous.
Dr. Olafson observed that alcoholism is a disease and therefore information about how to deal with it is extremely important. The first step, he said, in a person's recovery is when the person becomes aware of the nature of the problem. He asked what education programs are or should be used to heighten awareness of the problems. Barbara Harper suggested presentations during ethics classes in law school, and, thereafter, she said program representatives should speak often at bar meetings and law firms. She noted that peer counselors are used in Washington for which annual training is provided. Most peer counselors, she said, are lawyers in recovery, while others are lawyers who simply want to assist in the program. Bill Leary suggested articles should be written for the local bar magazines or journals.
With respect to referrals from disciplinary counsel, Paul Jacobson asked whether those referrals are made before or after a finding of misconduct. Barbara Harper responded that Washington only recently established a lawyer diversion program and she has not yet received any referrals from that program.
Paul Jacobson observed that in his experience very few lawyers will admit to having a problem, so he would expect there to be few instances in which he would recommend anything other than the standard disciplinary approach. Bill Leary observed that his program will often be approached by lawyers seeking assistance because they are about to have problems with the discipline system. He said the program will assist the lawyer in recovery, but will not assist the lawyer in avoiding discipline. However, he said, the fact that a lawyer has entered into a recovery contract with the program will sometimes be taken into account by disciplinary counsel.
Marilyn Foss said the discussion and distributed information describes fairly extensive assistance programs. She inquired whether there is a less ambitious kind of program that may be more suitable for a state such as North Dakota. Barbara Harper suggested that the program start small beginning with funding for a telephone contact and distributing information about the program. She said it would be necessary to identify service providers who would be available to accept referrals if a lawyer were to call the association. She stressed the importance of providing confidentiality for those involved in the process.
In response to a question from Christine Hogan concerning how to develop a network of peer counselors, Bill Leary suggested beginning with an article in the Gavel on depression, chemical dependency, and other kinds of abuse as a means of educating lawyers about the possible problems. Then, he said, the association could advertise the need for peer counselors and determine the level of interest and availability.
Dr. Olafson observed that the association's resources are quite limited and the lawyer population fairly small and, therefore, public. He wondered about the viability of coordinating assistance efforts with other professional organizations. Barbara Harper said, because North Dakota is just beginning discussion of establishing an assistance program, it may be an opportune time to consider a kind of consortium with other professions.
Bill Leary stressed the importance of providing access for addiction specialists to bar association annual meetings, at which time useful information can be provided to most lawyers about addiction issues. Barbara Harper noted that the Pennsylvania program has developed a very good training video that depicts a day in the life of a lawyer with a substance abuse problem.
In response to a question from Marilyn Foss regarding the cost of participating in an assistance program, Barbara Harper said peer counseling in Washington is provided on a volunteer basis. She said evaluations for mental health services or drug or alcohol treatment are provided at no cost. If, however, ongoing therapy or monitoring is provided, she said, a sliding fee ranging from $40 to $90 per hour is assessed. The fee, she said, is based on the ability to pay. She said her sense is that professionals need to pay for what they get, otherwise there is a perception that they are not receiving anything worthwhile. Bill Leary said lawyers pay for evaluations in his program, although Louisiana has several kinds of free treatment programs. He noted that paying for treatment is an important part of the person's recovery.
Randy Lee asked whether the establishment of a lawyer diversion program has changed the role of lawyer assistance programs in either Washington or Louisiana. Bill Leary said it has changed the relationship with his program because disciplinary counsel had previously been administering their own program. Additionally, he said, there is now an opportunity to place a lawyer on disability inactive status if necessary. He noted that, in conducting evaluations of other state assistance programs, he has encountered disciplinary counsel who were very opposed to providing confidentiality for the assistance process because it might be perceived as a method for covering up lawyer misconduct. Those disciplinary counsel, he said, are less resistant after reviewing the operation of assistance programs and confidentiality provisions in other states. There is clearly no intent, he said, to use confidentiality as a shield for lawyers with problems.
Elaine Fremling said there are a number of possible approaches that could be discussed. She said it may be useful to know what other professions need and provide assistance services and whether they could provide those services to the bar association. Additionally, she said there are clear cost benefits in terms of insurance costs that can be achieved by providing access to assistance programs. She said it may also be worthwhile to learn from an insurance claims perspective the costs associated with someone participating in a disability program, which may be lessened if there was an assistance program available before insurance became an issue. It would also be helpful, she said, to assemble information concerning treatment and counseling service providers located within local communities.
Mike Williams noted that Blue Cross Blue Shield compiles a list of addiction counselors in the state. He agreed it may be worthwhile to consider some form of collaboration with other professional organizations that provide assistance services for their members.
In response to a question from Marilyn Foss regarding the association's possible approaches to lawyer assistance, Christine Hogan said there would likely be an education component consisting of articles in the Gavel and legal education programs. She said another component might be the establishment of a peer committee, which could be coordinated through the association. She said it may be necessary to pursue a rule establishing a board within the association to oversee operation of the assistance program.
Bill Leary observed that his program was established as an independent, 501c (3) non-profit organization so they could obtain funding from a variety of sources. He said there are distinct benefits if the assistance program can be structured in that fashion because it can serve as a funding source without having the program run directly through the bar association.
In response to a question from Dave Hogue, Barbara Harper suggested moving slowly in establishing an assistance program before considering development of a lawyer diversion program. Bill Leary said diversion is more an arm of discipline, while lawyer assistance programs do not focus on discipline issues. He emphasized the importance of maintaining a separation between the two kinds of programs.
With respect to confidentiality for lawyer assistance programs, Bill Leary reiterated that confidentiality for his program was first provided by Supreme Court rule and then later expanded by statute. He noted that several states have similar confidentiality provisions. Barbara Harper noted that the ABA Model Rule for Lawyer Assistance Programs recommends that no records concerning those in the program be maintained. She said that would be a mistake because there is a clear need to have some idea of those who are served by the program.
Randy Lee drew attention to Texas Rule of Professional Responsibility 8.03(c), which, he said, allows a lawyer to escape the general duty to report misconduct if, thinking that another lawyer's conduct is due to an alcohol, drug, or mental impairment, the lawyer reports the individual to a lawyer assistance program. However, he said, the rule goes on to provide that the reporting lawyer must also disclose to the program any conduct violations that the reporting lawyer would otherwise be required to report. Bill Leary said he would be concerned about such a provision because it may compromise the willingness of a lawyer to report another lawyer to an assistance program.
In response to a question from Christine Hogan concerning random drug testing as a part of routine monitoring, Bill Leary said such testing is included as part of the recovery contract. He said for those participating in the program in major cities in the state, his program has contracted with Louisiana State University Medical School to conduct random testing of those in the program. He said testing laboratories are available in other cities in the state to conduct the random testing.
In response to a question from Alice Senechal regarding how the state bar association could most effectively proceed, Bill Leary suggested attempting to identify impaired lawyers in the state who may be willing to participate in an assistance program or as peer counselors. Barbara Harper said there may be any number of lawyers in the state suffering from stress or depression and suggested a legal education program directed at problems in those areas. She recommended including gambling-related problems as well.
In response to a question from Chair Senechal, there was general agreement that the bar association should move forward with consideration of an assistance program.
It was moved by Mike Williams, seconded by Dr. Olafson, and carried unanimously that the Committee endorse the establishment of a lawyer assistance program; recommend to the Board of Governors that it proceed with the development of such a program,;recommend that the state bar association begin development of appropriate legal education programs addressing addiction, substance abuse, and mental health issues; recommend and support exploration of possible methods of cooperating with other professional organizations in providing assistance services; and that the Committee review draft proposals concerning confidentiality and immunity for those participating in lawyer assistance programs.
Christine Hogan said she would contact the Medical Association about the possibilities for cooperative efforts in providing assistance services. She will also visit with the association's CLE director about development of legal education programs.
Chair Senechal said she would convey the Committee's recommendations to the Board of Governors. She thanked Barbara Harper and Bill Leary for taking time to travel to North Dakota and share their expertise about lawyer assistance with the Committee.
Rule 3.1D, Rules for Lawyer Discipline - Amendments
Chair Senechal then drew Committee members's attention to Attachment C (November 9, 2001) - revised amendments to Rule 3.1D(2) and (3) of the Rules for Lawyer Discipline. She explained the amendments were reviewed and modified at the September 14 meeting, and Committee members had agreed to submit the revised amendments to the SBAND Board of Governors for review and comment. She said the Board reviewed the amendments and suggested they be further modified. A copy of the Board's suggested revisions is attached as Appendix C. Essentially, she said, the Board's suggested changes would require that a copy of any subsequent written reply by the complainant to the lawyer's response be served upon the lawyer, rather than "provided" to the lawyer as the amendments currently provide. She said the Board's changes also suggest moving the language concerning the subsequent written reply, which is located in Rule 3.1D(2) of the Committee's amendments, to Rule 3.1D(4), where it would seem more logically located.
Marilyn Foss observed that the Committee had discussed the service issue at length and had concluded that requiring that a copy of the reply be "provided" to the lawyer afforded inquiry committees latitude in determining how best to address the service issues. She suggested the Committee's amending language be retained. Judge Braaten agreed.
In response to a question from Chair Senechal, Committee members agreed with the Board's suggested relocation to Rule 3.1D(4) of the language regarding providing the written reply.
Randy Lee noted that the current language in Rule 3.1D(4), to which the new language would be added, requires the lawyer to "serve" a copy of the lawyer's response on the complainant. He wondered whether it would be inconsistent to add, in the same provision, language that a written reply to the response must be "provided" to the lawyer. Marilyn Foss observed that the lawyer knows how to serve the response and those serving the complaint know how service is achieved. It is at the point in the process, she said, that involvement of lay committee members is more common. And, she said, requiring a lay investigator to serve a written reply on the lawyer may impose unnecessary burdens on lay members of inquiry committees.
It was moved by Marilyn Foss, seconded by Judge Braaten, and carried unanimously that the amendments set out in Attachment C be modified to relocate the written reply language from Rule 3.1D(2) to Rule 3.1D(4) and that the amendments, as modified, be approved and submitted to the Supreme Court.
Proposed Rule 1.19 Regarding Client Files and Papers
Chair Senechal next drew Committee members' attention to Attachment D (November 9, 2001) - letters concerning submission of proposed Rule 1.19 regarding client files and papers to the Board of Governors for further review. She said her letter of October 22, 2001, also forwards the Committee's recommendation that the Board of Governors pursue legislation amending N.D.C.C. Section 35-20-08 to delete language relating to liens on client papers. She said she anticipates submitting the proposed Rule to the Supreme Court, as earlier directed by the Committee, as soon as the Board addresses the legislative issue.
Chair Senechal said the 2002 meeting schedule would be distributed as soon as workable dates are identified.
There being no further business, the meeting was adjourned at 1:40 p.m.