What JLAP Can Do For Your Firm

Since law firms represent a large portion of the legal community, law firms can contribute significantly in an effort to reach attorneys who need help. The Judges and Lawyers Assistance Program (JLAP), therefore, is offering law firm management the opportunity to become educated on the issue of impairment and available assistance resources. Historically, law firms have been reluctant to acknowledge the issue of impairment among legal professionals. Attorneys, viewed by society as authority figures, often are expected to project an image of perfection and invulnerability. In spite of their abilities and training, attorneys share the same problems as people within the general population. Attorneys hesitate to admit to problems with chemical dependency. Nevertheless, these problems exist and exert a profound, negative impact on the legal profession, the public and afflicted individuals. JLAP believes it is important to encourage law firm managers throughout the state to participate in the effort to identify and assist attorneys whose performance is impaired.

Members of law firm management know the productivity and work qualities of attorneys within their firm. The firm managers, therefore, may be able to detect – at an early stage – a colleague who may be grappling with serious personal issues that affect the performance of his/her job responsibilities.

The implementation of the techniques contained in this section may protect the public, save an attorney’s job, and, in some cases, save an attorney’s life. Responsible firm leadership throughout the State can now act to dramatically improve the quality of legal services provided to clients, lives of law firm personnel and the professional image of the Louisiana lawyer. Our State Bar leaders have already taken the first and most difficult step in acknowledging that the problem exists. As a profession, we are overcoming our own denial by facing this issue with honesty, sensitivity and strength. JLAP can assist law firms in understanding the magnitude of the problem and in setting up policies on alcohol and drug abuse, and other addictions, such as gambling.

Nature and Magnitude of the Problem

According to statistics from the National Institute on Drug Abuse, approximately 23 percent of all workers in the United States abuse alcohol and/or drugs on the job. In addition, according to testimony given before the House Labor Subcommittee on Health and Safety, drug and alcohol abuse in the workplace cost businesses approximately $70 million annually.

Impairment Among Legal Professionals

Legal professionals are among those in the workplace whose performance is more frequently impaired by chemical dependency and drug and/or alcohol abuse. Some studies indicate that the rate of attorneys who suffer from serious problems contributing to impaired job performance exceeds the rate for the general population. As noted previously, a Washington State Bar Association study found that over 18 percent of attorneys in Washington experience problems with alcohol. Impaired attorneys who continue to practice law adversely affect themselves, their clients, their colleagues, their community, their families and the legal profession. The California State Bar believes that over 50 percent of the attorney misconduct cases which it investigates involve trouble with chemical dependency. The American Bar Association estimates that alcoholism and chemical dependency are a factor in 40 to 60 percent of professional discipline cases nationwide. The actions of an attorney whose performance is impaired often result in harm to a client’s interests, legally and economically, as well as injury to the reputation of the firm with which the attorney is associated. Furthermore, attorneys who perform at a substandard level create noncatastrophic losses which require attention. These losses arise from excessive absenteeism, poor productivity and increased medical claims. In addition, attorneys with serious personal problems who conduct themselves unprofessionally affect employee morale and the firm’s reputation and can impact recruitment and training efforts. Law firms must face the issue of attorney impairment in the workplace. Polite avoidance of this serious condition only serves to support, delay resolution and magnify the impact of problems which arise.

The following discussion sets forth the steps management can take to address this subject in a constructive and positive manner, which both benefits and protects the firm and directs those who need assistance to providers of assistance.

Responsibility of Management

A. Firm management’s responsibilities

Firm managers (or supervising partners) are likely to become aware of an attorney whose work performance is impaired because of problems related to chemical dependency, either sooner, through direct observation of certain patterns of conduct, or the reports from other personnel or clients of these patterns; or later, through evidence of significantly diminished performance, malpractice claims or other instances of substantial harm. Clearly, a firm has a vested interest in identifying impaired colleagues as soon as possible before substantial harm has occurred.

Firm managers may play a significant role in identifying these attorneys before they cause substantial harm. Most managers, however, are not qualified to diagnose the reasons why an individual is no longer performing his/her job at a minimally acceptable level. Nevertheless, managers may contribute significantly to the eventual resolution of an attorney’s problem by referring him or her to an assistance program.

The following section sets forth information which may be useful to a firm manager who faces the problem of an attorney in the firm who is performing at a substandard level.

B. Role of law firm management

1. Monitor job performance levels

Members of law firm management are usually aware of the job performance levels of attorneys within the firm. Most firms have established as a matter of policy the acceptable and unacceptable levels of productivity for each attorney within the firm. Firm managers are usually responsible for noting whether or not an individual attorney meets these standards. If an attorney fails to do so, he/she may be practicing law in an impaired condition. Managers will therefore be better able to detect this condition if they are aware of the most common signs of impairment.

2. Identify signs of impairment

Statistics indicate that the underlying cause for deterioration of an attorney’s ability to execute his/her job responsibilities in accordance with professional standards usually involves problems with chemical dependency or emotional distress. Most individuals who are suffering these or other problems which undermine their performance will reveal their condition by a pattern of conduct characterized by changes in behavior, physical appearance and/or job performance.

3. Changes in behavior and appearance

Managers should pay particular attention to changes in an attorney’s attendance at work. The most common behavioral change in a person in an impaired condition involves increased absenteeism, including complete absences from the office and onthejob absences such as excessive tardiness or frequent time away from his/her work area. Another common behavioral change involves the attorney’s relationship with his/her coworkers. As his/her condition worsens, the attorney becomes increasingly unable to get along with others. An attorney suffering from a serious problem may have mood swings and be irritable, argumentative, angry, depressed or unrealistically resentful. Another indication that an attorney may be impaired is the deterioration of his/her personal appearance and attention to hygiene.

4. Substandard job performance

An attorney, whose work is impaired due to chemical dependency, will eventually exhibit deteriorating job performance. The early signs of impairment may include uneven work habits and alternating periods of high and low performance, which become worse over time. As the attorney’s ability to maintain the workload diminishes, he/she will begin to receive complaints from clients and coworkers. In addition, the attorney may miss deadlines, lose files and other materials, have difficulty handling assignments or rectifying mistakes. The attorney will make more and more excuses for substandard performance or deny that there is anything wrong with his/her work.

Firm managers know the performance level of each attorney within the firm. If an attorney fails to meet the firm’s standards of performance, the attorney may be experiencing problems with chemical dependency or emotional distress. Managers are not trained to diagnose these conditions, but managers can develop an understanding of the signs exhibited by an attorney who may be suffering from such problems. Based on their knowledge of the facts and understanding of these signs, managers can detect attorneys who may be practicing law in an impaired condition before they cause substantial harm to the firm, its clients, or themselves. Furthermore, firm managers may refer attorneys who need help to appropriate sources for treatment.

C. Benefits of Law Firm Policies

A formal law firm policy on alcohol and drug abuse in the workplace may serve as an official firm statement on the conditions that prevent personnel from performing their jobs effectively, the procedures for dealing with impaired personnel, the consequences of impaired work performance, and what, if any, treatment or assistance programs are available. Simply by adopting a formal firm policy on impairment issues, firm managers increase the awareness among all personnel of impairment problems in the workplace and provide clear and uniform procedures that management can use to handle personnel with such problems. A law firm with an official policy on impairment issues fosters a more open atmosphere for the discussion of these sensitive matters. Furthermore, policies establish a mechanism for firm management to take corrective action and to provide help for colleagues who need help at the earliest possible stage, rather than allowing troubled attorneys to continue in a manner which causes harm to themselves, the firm and to the public. Early detection of impaired attorneys reduces the firm’s overall risk of malpractice claims.

D. Statement of Position

Most law firms value their reputations for high quality work and responsible client representation. At the same time, law firm managers recognize that workers with impairment problems can undermine the reputations they have worked to uphold. The adoption of a law firm policy concerning impairment issues restates a firm’s commitment to the integrity of its work, while at the same time recognizes that impairment problems may exist within the firm and will be handled professionally. In addition, a firm may indicate its support for a drug and alcohol free workplace for all personnel by adopting a policy which reflects this position. The policy notifies all personnel that the firm is committed to maintaining the highest standards of work performance and will take appropriate action when an individual’s conduct requires it. Furthermore, all personnel are usually required to read written policy documents upon hiring and are thus provided with the detailed information on the firm’s guidelines and procedures concerning this matter. In the event that an attorney’s condition interferes with his/her ability to work, both the manager and the involved person will have been informed regarding how the situation will be handled.

E. Increased Awareness

A law firm policy on impairment issues increases awareness among firm members of the presence of the problem. The firm may use this increased awareness to encourage further education on the topic of chemical dependency. When people understand the characteristics of these problems and the treatment options, they are much more likely to seek assistance for themselves or for their colleagues.

F. Reduced Liability

A firm benefits from a policy which encourages managers to detect personnel who are performing in an impaired manner because the firm can avert malpractice claims. Policies which increase management’s awareness of these issues and outline steps for handling these matters permit management to address the source of the problem and the impaired employee’s conduct before substantial harm has occurred to the firm’s or a client’s interests.

G. Provisions for Assistance

A law firm that adopts a policy on alcohol and drug abuse benefits from evaluating whether or not its policy will encourage treatment for attorneys who need assistance. A policy on this issue provides the firm with the opportunity to create formal procedures for the referral of its personnel to assistance. In the past, many law firms have hesitated to become involved in referring an attorney to an assistance program.

Attorneys who suffer from chemical dependency do not recover in most cases unless they receive assistance from someone trained in chemical dependency who is not a member of the law firm. If law firms do not encourage treatment for these attorneys, and these attorneys are unable to recover without treatment, the only remaining alternative is termination.

The attorney, however, may continue to practice law at a substandard level and continue to harm the public AND FIRM. A particular attorney’s clients may continue to suffer and the reputation of the legal profession is undermined. This cycle of harm continues unless the attorney receives assistance from another source, the attorney becomes involved in formal disciplinary proceedings after causing substantial harm or, in the worst case, the attorney causes significant harm to him or herself, which may result in death. A law firm that provides a formal mechanism through its firm policy for assistance has done everything in its power to stop this deadly cycle of harm. Remember: chemical dependency is a progressive disease that will worsen unless treatment is sought.

H. Policy Issues

Law firms which have decided to adopt a policy on personnel impairment must evaluate several points during the policy development process. These items include stating the firm’s philosophy toward impairment issues, identifying the scope of the problem within the firm, defining to whom the policy will apply, delineating uniform procedures for the disposition of impaired personnel, describing the consequences or disciplinary action that will be taken to address such workplace conduct, discussing treatment and rehabilitation alternatives and addressing the question of drug testing. Policy makers should consider each of these points to ensure a policy suitable to the firm’s specific needs.

I. Firm Philosophy

By adopting a policy on personnel impairment, a law firm may state formally its position on this topic and may reiterate the firm’s philosophy concerning its integrity and standards for quality work performance. The policy may become part of the firm’s personnel and procedures manual or rules. When defining its policy, firm members should consider the firm’s attitude toward impairment issues on chemical dependency and how the firm intends to address the use and abuse of alcohol and drugs, both in and away from the workplace.

J. Scope of Problem

To define an effective firm policy, firm members should consider to what extent, if any, personnel impairment impacts on the firm’s productivity and morale. If firm members lack knowledge regarding whether or not impairment is a problem among its personnel, some investigation should be conducted while the policy is being developed.

K. Procedures for Management

In addition to the policy and the scope of its application, a law firm should set forth procedures to be implemented by management when faced with a worker whose performance is impaired. These procedures can include referral to LAP or to some other designated third party for evaluation and recommendation as to treatment procedures. Policies can set forth various alternatives that management can present to an impaired individual, including rehabilitation programs, leaves of absence and adjusted work schedules.

L. Corrective Action

A firm policy should clearly state any corrective or disciplinary action that the firm intends to take when an individual continues to perform at a substandard level as a result of alcohol or drug dependency. Corrective action may require that an individual participate in a treatment program as a condition of continued employment or consideration for rehire. A firm policy may provide that participation in a treatment program will not protect a person from termination for unsatisfactory work performance.

M. Treatment Alternatives

In most cases, a policy on personnel impairment recognizes that unsatisfactory work performance due to chemical dependency is treatable. Policies may set forth treatment and rehabilitation services that are supported by the firm. If the firm has established a relationship with an employee assistance program provider, the policy may indicate under what circumstances referral to the LAP would be recommended. In addition, the firm should determine whether or not the cost of treatment would be covered by the firm, since the objective of treatment is to return the individual to full time working capacity. Of course, many treatment options may be covered by the firm’s health insurance provider.

N. Lawyers Assistance Program

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 are experiencing problems with alcohol or drug abuse. The Committee is composed of volunteers, both men and women, some in recovery from alcohol and drug abuse, some family members in recovery, and some people 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), the Louisiana Supreme Court and the Louisiana State Bar Association, the Committee formed LAP, an nonprofit corporation in 1991 and hired a director to coordinate and carry out its goals.

The goal of the JLAP is to serve the public, the Bar and the profession by assisting, on a confidential basis, lawyers and judges whose professional impairment may stem from alcohol or drag abuse. JLAP is first and foremost an absolutely confidential method of providing help to an impaired lawyer or judge. By state statute and Supreme Court rule, any information received by the JLAP Director or committee members must remain completely confidential.