History & Background
The Louisiana State Bar Association Committee on Alcohol and Drug Abuse was first established in 1985 to provide confidential assistance to members of the Bar and their families who were experiencing problems with alcohol or drug abuse. The Committee is composed of men and women volunteers, some in recovery from alcohol and drug abuse, some family members in recovery, and some just interested in helping with this mounting problem which permeates our profession and our society.
Due in large measure to the commitment, support, and encouragement of the Louisiana Bar Foundation (IOLTA), Louisiana Supreme Court and Louisiana State Bar Association, the Committee formed a non-profit corporation in 1991 and hired a director to coordinate and carry out the goals of the Committee. This corporation was aptly named “Lawyers Assistance Program, Inc.” (LAP).
In April, 1992, an office was opened separate from the Bar Center, which allowed the director to better organize a network of practicing lawyers willing to provide assistance to impaired lawyers and judges. The office has given the committee members access to a vast amount of professional education information that enables them to deal appropriately with impaired lawyers and judges.
The goal of the Lawyers Assistance Program is to serve the public, the Bar and the profession by assisting, on a confidential basis, lawyers or judges whose professional impairment may stem from alcohol/drug abuse, mental health problems or gambling addiction. LAP is first and foremost an absolutely confidential method of providing help to an impaired lawyer or judge. By La. R.S. 37:221 and La. Supreme Court Rule XIX, Sec. 16(J), any information received by the LAP director or committee members must remain completely confidential.
Telephone calls or other communications from or about an impaired lawyer or judge are directed to the LAP director, who is then responsible for getting immediate and confidential assistance to the lawyer or judge. The follow-up action by the LAP director usually takes the form of personal and individual assistance to the lawyer or judge in question. One or more lawyers in that area of the state in which the impaired lawyer or judge is located (and who is recovering from the same type of impairment as is affecting the lawyer or judge) is requested by the LAP director to become involved in a collaborative assessment process. If needed, the LAP director is personally involved in the intervention process and/or assisting in proposing a treatment plan.
Louisiana Supreme Court’s Evolving View of the Degenerative Role Played by Chemical Dependency in Attorney-Discipline Situations
Our Louisiana Supreme Court is responsible for both monitoring the practice of attorneys in this state and for meting out discipline to lawyers guilty of various transgressions.
The Supreme Court first noted the adverse role played by alcoholism in our profession in 1988. In that year, the Court reviewed the case of The Louisiana State Bar Association vs. Longenecker, 538 So.2d 156 (La. 1989). The disciplinary issue in the case revolved around whether disputed fee portions of a check received to satisfy a judgment should remain within an attorney’s trust account until the dispute is resolved. (Although the facts of the case are not germane to this discussion, for the record: disputed fee proceeds should always be maintained either in a separate trust account or in the registry of the court until the fee dispute is resolved!)
In this case, the Louisiana Supreme Court was first called to pass upon the weight to be given to the respondent’s alcoholism during the pertinent period of practice and to his subsequent rehabilitation. Addressing this issue, the Longnecker court wrote as follows:
“This consideration (alcoholism and subsequent rehabilitation) is particularly appropriate as a factor in mitigation when the attorney has subsequently undertaken to rehabilitate himself and has been continually successful in recovering from the disease of alcoholism, especially if the clients did not sustain substantial harm. Disciplinary proceedings are not primarily to punish the lawyer but to protect the court and the public from unprofessional conduct…. In terms of public protection, a lesser penalty is warranted where there was misconduct largely attributable to the alcoholism of an attorney who has subsequently rehabilitated himself and no longer presents the same danger to his clients.” The Louisiana State Bar Association vs. Longenecker, 538 So.2d 156 (La. 1989).
The very next year, the Louisiana Supreme Court addressed a similar situation in the case of Louisiana State Bar Association vs. Arthur F. Dumaine, 550 So.2d 1197 (La. 1989). Louisiana State Bar Association vs. Dumaine, 550 So.2d 1197 (La. 1989). Again, the operative facts giving rise to the need for attorney discipline are not germane to these discussions, but they revolve around the respondent’s conviction of a felony for the illegal use of a weapon. Mr. Dumaine was convicted and sentenced to one year at hard labor, a sentence ultimately vacated by the Supreme Court as too harsh.
The reasons surrounding Mr. Dumaine’s discharge of a firearm were integrally related to his chemical dependency and are set forth with specificity within the opinion. What is important for these proceedings, though, is that the Dumaine fact pattern gave the Louisiana Supreme Court another opportunity to address the manner in which professional infractions related to alcoholism should be addressed. As a matter of fact, the very first paragraph of the opinion reads as follows:
“This attorney disciplinary proceeding calls upon us to set forth precepts for determining whether a lawyer who has committed serious ethical violations should be placed on probation and allowed to continue to practice because his infractions were related to alcoholism.”
Later on the first page of the opinion, the Court viewed its role in this effort as follows:
“In making such a determination, the primary issues we must consider are whether the attorney’s lapses stemmed mainly from chemical dependency rather than lack of moral fitness and whether his recovery has progressed to the extent that he may be permitted to practice without undue risk of harm to his clients, the legal profession or the Courts.”
Louisiana State Bar Association vs. Arthur F. Dumaine (1989): The Supreme Court Sets Guidelines For Supervised Probation of Attorney in Certain Misconduct Cases as Opposed to Suspension or Disbarment.
The Dumaine Court was the first to recognize that chemical dependency may cause an attorney to commit acts of professional misconduct which would not have occurred but for his impairment. As a result of this inquiry, they opined that – in a case in which misconduct stemmed primarily from the impairment and when the attorney has recognized his affliction and has attempted to overcome it – supervised probation may be the most effective means of assuring the lawyer’s reform while affording protection to the public, the profession and the courts. Louisiana State Bar Association vs. Dumaine, 550 So.2d 1197 (La. 1989). Of crucial importance to the Court’s view was the conclusion from the evidence in the Dumaine case and the record as a whole that it was highly unlikely that the profession or the public would be in danger by the continuation of the attorney’s license to practice law under probationary guidelines.
In formulating this view, the Louisiana Supreme Court reviewed various approaches taken in other jurisdictions, primarily Illinois and Minnesota. While the Louisiana Supreme Court was not prepared to order the adoption of similar programs as those existing within sister states, the justices of the Louisiana Supreme Court agreed that the problem of chemical dependency among lawyers is so prevalent, that they realized the Court would soon be called upon to adopt more systematic rules and procedures for evaluating disciplinary cases involving alcohol and drug abuse. Ronald J. Johnson 322 N.W. 2d 616 (8/6/82). James Francis Driscoll, 85 Ill.2d 312 (6/26/81).
In fact, there was convincing evidence put before the Court that chemical dependency is so widespread among the legal profession that it cannot be deterred or even coped with by the normal enforcement of the disciplinary rules. Instead, it was clear to the Louisiana Supreme Court that the “evil has become ascendant” and, if it was to be curbed, it had to be addressed “openly, vigorously and holistically by the entire organized bar.”
Even more troubling for the Court, the statistics provided by experts indicated that between 40 and 60% of lawyers who appeared before disciplinary boards nationwide had some type of alcohol or drug abuse problem.
In response to this growing attorney impairment problem, 86% of the state bar associations have some type of impaired lawyer assistance program.