HELPING THE ALCOHOLIC LAWYER

By Jonathan Goodliffe (jgoodliffe@dial.pipex.com)

In the first part of this series of articles, I described typical behaviour patterns and symptoms of lawyer alcoholism. This week I shall discuss what action can be taken.

Once there are indications that a colleague is addicted, it is important that immediate action should be taken. The condition is unlikely to get better if it is ignored and the longer intervention is put off, the more difficult it will be to achieve success. Alcoholics do not generally seek help unless they come under pressure to do so. Often what will most help the alcoholic is what he least wants and what he most wants, or thinks he wants, is what will most hinder his recovery.

Promises, promises

The preferred way in this country of handling the problem of the alcoholic colleague, is to have a private word with the individual concerned⁽¹⁾. If he is simply "going through a bad patch" and drinking heavily without being addicted, or if he is a young assistant who has not yet "grown up" the approach may be successful. If, on the other hand he has a long history of addictive behaviour, any promises he gives are likely to be broken; indeed broken promises, as we have already seen, are a symptom of the condition.

Nothing that is said by a drinking alcoholic can be taken at face value. It is best to work on the hypothesis that however much he may want to change his behaviour, nothing of substance will be achieved unless the initiative is taken by the firm itself.

The only real purpose of accepting promises from an alcoholic is to prepare the ground for his expulsion.

Expelling the alcoholic

Expulsion will sometimes be the only option, for a variety of reasons. Small firms may not have the resources to carry an alcoholic through the early months of his recovery when he will be unproductive. Alternatively he may have irreparably damaged his relationship with his colleagues or simply be in the wrong job or career. If so, the sooner he leaves the better. The pain and indignity of unemployment may be what he needs to find the motivation to stop drinking.

This may sound like a ruthless approach. For that reason many firms equivocate for months or years before adopting it. On the one hand they are not prepared to give their alcoholic colleague the support which may help him to stop drinking. On the other hand they cannot face up to the alternative, thus prolonging the problem and increasing the damage to their firm and their colleague's career. Paradoxically, the firm often does not get around to expelling the solicitor until he is sober.

Expulsion need not prevent the firm from providing the alcoholic and his family with help and support. Financial help for solicitors who are destitute is also available from the Solicitors' Benevolent Association; and it is not unknown for alcoholic solicitors who lose their jobs to be re-engaged after they get sober.

In any event an expulsion or dismissal for drunkenness should be carefully handled. It is not clear from the case law of the Employment Appeal Tribunal to what extent alcoholism is to be treated as a medical problem. To the extent that it is, the employer must obtain medical evidence and consult the employee before dismissing him⁽²⁾. Most partnership deeds make no express provision on this point.

Although expulsion can be the only viable solution to the problem of lawyer alcoholism it will often create its own problems. Apart from the litigation which will often arise, it discourages other employees with health problems from coming forward. It often involves a considerable waste of human resources. However weak and unprofessional the alcoholic may appear to be at his "rock bottom", the chances are he will be a better lawyer than he ever was after a few years of sobriety.

Expert advice, from SolCare or otherwise, will usually suggest more constructive solutions.

Easing the alcoholic out

One common way of avoiding the inconvenience and expense of expelling the alcoholic or supporting him through treatment is to encourage him to find another job, either directly or indirectly. This also conveniently ensures that the alcoholic is not seen to be "thrown in the rubbish bin" by being put out of a job at the weakest point in his life.

When the alcoholic finds another job with a new firm he will often be sent on his way with a glowing reference. The problem is then passed on to someone else. Typically the alcoholic will only last a matter of weeks or months in the new job. More damage will be done to his professional career than if he had been expelled.

A variation on this approach, adopted within the civil service or in large corporations, is for the alcoholic to be retired on medical grounds. Often the diagnosis will ignore his drinking and will treat his condition as incurable or terminal. This passes the problem from the employer to the family while ensuring that the alcoholic has a guaranteed source of income cushioning him against the consequences of his behaviour.

The "easing out" approach is socially irresponsible. It is to be hoped that in time the profession will develop standards discouraging it. Most importantly firms should be discouraged (perhaps by means of the law of fraud and negligence) from giving glowing references to active alcoholics. Such a policy simply transfers the problem to a new firm, prolongs the period of addiction and creates a market in alcoholic lawyers.

A responsible, though perhaps controversial, policy would be for the firm to assure itself of the ex-employee/partner's rehabilitation and sobriety before giving the reference. This would put the maximum pressure on him to face up to his problems.

Recovery

A study of 61 lawyers who had suffered from drink or drug problems, commissioned by the Law Society and published in January 1996⁽³⁾, noted that the majority had achieved sobriety through abstinence-based approaches, primarily Alcoholics Anonymous ("AA"). Similar conclusions have been arrived at in other studies⁽⁴⁾.

AA is a self-help organisation, founded in the USA in 1935, which regards alcoholism as an incurable disease from which recovery is possible through life-long abstinence, attendance at weekly meetings (of which there are more than 3,000 in the UK) and a programme of twelve steps. Despite its rather downbeat image AA caters for all classes of society. For those lawyers in recovery who also want to meet with fellow professionals there is another self-help organisation, the Lawyers' Support Group, which meets regularly in London, Birmingham and Manchester.

The limitation of AA is that it can only help those who are willing to accept help. The legal profession and law firms cannot always afford to wait until alcoholic lawyers, most of whom are in denial of their condition, are ready to stop.

When the alcoholic lawyer does take the initiative in seeking help, or perhaps more frequently when he reacts positively to the pressure otherwise than from his colleagues, it is important that his colleagues should support him in his process of recovery. Ways in which they can do so will be discussed in the next part of this series of articles, "Rehabilitating the Alcoholic Lawyer".

Intervention

For lawyers with a real concern for the welfare of their colleagues there is a strong case for confronting by way of an "intervention" a partner or employee who appears to be alcoholic and insisting that he stop drinking and accept treatment for his condition. Employers or partners are well placed to do this, since it can be made clear to the alcoholic that if he does not respond he will lose his job.

Interventions (or "support initiatives" as they may be called, to distinguish them from interventions under the Solicitors' Act 1974) are often effected by a group of senior partners. The alcoholic's family may sometimes also be involved. If the intervention is successful, the alcoholic will drop his work immediately and be examined by a consultant psychiatrist specialising in addiction. Thereafter he may be admitted immediately for treatment. He will return to work only when considered fit to do so.

In the study referred to above⁽⁵⁾, 4 of the respondents had been the subject of such an intervention. One of them commented:

"My partners gave me no choice but residential treatment .... their generosity cannot be overstated."

Unless one has previous experience or is very confident of what one is doing⁽⁶⁾, it is best to get professional advice on how to handle an intervention, to ensure that it achieves maximum impact without causing psychological damage.

Many smaller firms do not have the resources to support colleagues through treatment. In the case of sole practitioners, an intervention must come from a third party.

It is for these reasons and others that the Law Society and the Solicitors' Indemnity Fund have provided the finance to establish SolCare, an independent charity, to educate solicitors about alcoholism, drug abuse and related problems, to identify members of the profession who are addicted and to ensure that they get the appropriate help. This is an entirely confidential service available to solicitors and their staff free of charge. Early involvement of SolCare can avoid an intervention under the Solicitors' Act, the closure of a practice and/or disciplinary proceedings. Alternatively if a firm has private health insurance, a leading treatment centre or appropriately qualified addiction counsellor should be able to help.

Treatment

Residential treatment usually lasts for about 4 to 6 weeks or so plus a period of aftercare. Outpatient treatment may also be available. Patients are treated for the physical and psychological effects of their addiction and are helped to learn to cope without alcohol and drugs. Many treatment centres introduce patients to the recovery programme of AA and require them to attend regular meetings. The patient's family may be invited to sessions at the treatment centre.

The process of helping alcoholic colleagues is made immeasurably easier if all partners and employees of the firm are covered by private medical insurance. Unfortunately many such policies exclude treatment for alcohol dependence. Policies which include it are substantially more expensive, but worth the additional outlay. There is also a risk that if alcohol dependence is excluded from the insurance policy, the patient will end up being treated for the wrong condition.

Where insurance cover is not available, financing treatment can create serious problems. Even lawyers who are apparently very successful may have squandered their wealth through their addiction, especially if this involves illegal drugs as well as alcohol.

Where the money is not available it may be possible to arrange treatment through the National Health Service, which will make payment to the treatment centre by means of an "extra-contractual referral" ("ECR"). Whether an ECR is available will depend on the judgment of the local Health Authority. Often such authorities, whose own resources are limited, are not convinced by the benefits of private treatment⁽⁷⁾ and take the position that a few days de-toxication at a hospital, or even at home, is sufficient. In these circumstances it may be necessary for the firm to provide the money.

Helping the alcoholic to return to practice

A further article will discuss how a law firm can help an colleague recovering from an addiction to return to his or her practice.

NOTES

1. ¹ "Lawyers on the Rocks", M Cusick, Legal Business, June 1990.

2. ² East Lindsey District Council v Daubney [1977] IRLR 181

3. ³ Goodliffe and Brooke, "Alcoholism in the Legal Profession", New Law Journal, 12th and 19th January 1996.

4. ⁴ Bissell, L & Haberman, PW (1984), "Alcoholism in the Professions"; Coombs, RH (1997) "Drug Impaired Professionals".

5. ⁵ see note 3 above.

6. ⁶ Anyone reluctant to involve professionals might refer to "Concerned Intervention" J & P O'Neill, 1993

7. ⁷ Even though treatment programmes for professionals report high success levels; see Coombs, op. cit. page 253.