History & Background

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.

The Court recognized that the "Impaired Professional Committee" was formed in 1985 by the Louisiana State Bar, said committee being renamed "Louisiana State Bar Association Committee on Alcohol and Drug Abuse."

The next year, this Court amended Article XV, Section 13 of the Articles of Incorporation of the Bar Association to recognize the Committee on Alcohol and Drug Abuse and to make privileged any attorney's communications with the committee, its members or agents.

The Dumaine Court wrote as follows:

"The Committee on Alcohol and Drug Abuse is therefore an absolutely confidential method of providing help to an impaired lawyer. By order of this Court, any information received by the Committee must remain completely confidential. Information the Committee receives from or about an impaired lawyer cannot be divulged to any other person, including any grievance or disciplinary committee, the Bar Association, or any committee or agent thereof." Dumaine at page 1204.

The Louisiana Supreme Court in Dumaine also envisioned a day when it would be unworkable for the clerk of the Louisiana Supreme Court to supervise practicing attorneys who were afflicted with the disease of alcoholism. Consequently, the Court thought it would be more appropriate and more in keeping with the concept of a self-governing bar for the Committee on Professional Responsibility or some other person or entity designated by that Committee to be a supervising agency. The Court also mandated that "the supervising person or agency should be assisted by another attorney who is also a recovering alcoholic. This attorney should be designated by the Committee on Professional Responsibility after consultation with the Committee on Alcohol and Drug Abuse and the respondent attorney.

Studies Cited By The Louisiana Supreme Court Indicate the Rate of Addiction Among Legal Professionals May Be Triple The National Average

A growing body of studies indicated to the Louisiana Supreme Court that attorneys are more at risk for various types of impairment, particularly alcohol abuse, than the general population. It is widely accepted that about 10% of the adult workforce in the United States suffers from alcoholism. Therefore, it may be conservatively assumed that more than 1,900 of the just less than 20,000 (19,726) lawyers of the Louisiana State Bar Association are affected by the disease. Recent studies indicate, however, that - among attorneys and some other professionals - the rate of alcohol abuse may be more reliably estimated to be 20 - 30%. 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.

The Louisiana Supreme Court Articulates the Need for a Lawyers’ Assistance Program (LAP)

AAs the evolution of this State’s treatment of alcoholic practitioners has advanced, it became clear that the Bar Association and the Committee on Alcohol and Drug Abuse would need assistance in supervising lawyers who were attempting to recover from the disease of alcoholism. To meet this need, the Louisiana version of the Lawyer’s Assistance Program, Inc. (LAP, Inc.) was created.

Since the formation of LAP, Inc., an ever growing number of lawyers have been accepted for supervision in the hope that the disease process leading to whatever professional difficulties are faced by the attorney can be addressed and remediated. LAP, Inc. operates under the auspices of the Committee on Alcohol and Drug Abuse and those individuals affiliated with LAP, Inc. all sit as members on that Committee. Consequently, all members of LAP, Inc. are legislatively provided with privileges and grants of both immunity and confidentiality so that they can interact with attorneys or members of the judiciary in the open, vigorous and holistic approach endorsed by the Louisiana Supreme Court in Dumaine, supra.

Alcoholism and Chemical Dependency Is More Prevalent Among Lawyers Than the General Population.
Alcoholism, drug addiction, and mental health problems are illnesses that affect a great number of professionals, including lawyers and judges. Reports now estimate that while 10% of the general population has problems with alcohol and other drugs, a greater percentage of the lawyer population battles the same problem. It is agreed that many lawyers and judges are overachievers who carry an extensive workload, and the daily pressures placed on these individuals can lead to inordinate amounts of stress and related difficulties. It is also known that stress, tension and anxiety do not cause alcoholism, although they may be wonderful excuses for drinking. There is no persuasive evidence that alcoholics suffer from more stress before the onset of the disease than do nonalcoholics.

Once the disease has progressed to a certain point, however, the alcoholic is bound to experience more stress than the nonalcoholic as a result of withdrawal symptoms and life's problems. Also, recent reports have shown that a majority of disciplinary problems involve chemical dependency or emotional stress.

Alcoholism, addiction and depression thrive in our midst, taking a tremendous toll claiming practices and lives, and causing devastating harm to clients. An attorney actively suffering from chemical dependency or serious mental illness is generally unable to practice law within competent and ethical parameters, and often does harm to clients. Charged with the onerous duty of protecting the public from errant or unfit lawyers, disciplinary and licensing authorities in Louisiana must address chemical dependency and mental illness in bar applicants and practicing lawyers.

Chemical dependency is clearly a prevalent problem in the legal profession. Lawyers suffer from this illness at more than twice the rate of the public population. In addition, a 1991 Johns Hopkins University study found legal professionals suffer the highest rate of depression of any profession. It remains unclear whether a certain personality type is drawn to the profession, or if the nature of the profession itself leads to the higher incidence of addiction and depression.

For example, a Washington State Bar Association study found that over 18% of the attorneys in Washington experience problems with alcohol. Impaired attorneys who continue to practice law adversely affect themselves, their clients, their colleagues, their community members, their families and the legal profession. The California State Bar believes that over 50% of the attorney misconduct cases that it investigates involve trouble with chemical dependency. The American Bar Association estimates that alcoholism and chemical dependency are a factor in 40 - 60% of professional discipline cases nationwide. The actions of an attorney whose performance is impaired often result in harm to a client's interest 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 that require attention. These losses arise from excessive absenteeism, poor productivity, and increased medical claims.

LAP’s "800" number (866-354-9334) continues to be answered on a 24hour basis, and each year the number of calls increases as word of the work of LAP spreads in the legal community and in the homes of lawyers. This includes referrals from treatment centers and private practitioners. Members of the Committee on Alcohol and Drug Abuse continue to be a leading source of referrals as the lawyers and judges in their areas of the state know these committee members. The members also continue to make presentations at all the law schools in the state.

The LAP Director and committee members continue to monitor lawyers who have had disciplinary problems and have been referred to LAP by the Disciplinary Counsel's Office or the Disciplinary Board.

Characteristically, a professional who suffers from these diseases denies he/she has a problem and is unlikely to seek assistance as the disease progresses. Most often, family, partners and other lawyers are aware of the problem, and their acknowledgment of the problem can often break the denial barrier and lead to effective treatment. The earlier the intervention, the better the chance for rehabilitation. Each of us bears the responsibility to help others who may not recognize the need for assistance, and we must take every step necessary to provide that assistance. Only by recognizing this responsibility can we prevent the abuser from causing further harm to himself and others.

LSA - R.S. 37:221 - The Louisiana Legislature Provides Absolute Confidentiality and Privileges to the Committee on Alcohol and Drug Abuse.

Following the Louisiana Supreme Court’s decision in Dumaine, the Louisiana legislature visited the issue of whether or not statutory confirmations of privilege and confidentiality should be provided to members of the Committee on Alcohol and Drug Abuse. As a result of these discussions, the legislature enacted without amendment LSA-R.S. 37:221, which accomplishes the following:

1. It recognized that alcoholism and drug addiction in the judiciary and among the members of the Louisiana State Bar posed a serious health and ethical problem for the people of the State of Louisiana. Moreover, the legislature recognized the symptoms of this disease process, which revolve around denial. Consequently, the alcoholic practitioner had to be confronted with specific instances of misbehavior or unethical conduct. The legislature recognized the difficulty in bringing these specific instances of misconduct to light and confronting the alcoholic with them if there was a companion danger that the revelation of the instances could be utilized to sanction the attorney in any way.

2. Accordingly, Section (A)(4) of the statute was written to include the following language:

“It is hereby declared to be the public policy of the State of Louisiana to promote and encourage the use of counseling by peers and the intervention process in order to initiate successful treatment of alcoholism and drug addiction among the judiciary, members of the Louisiana State Bar Association, law students and prospective lawyers. The intent of this Section is to further this goal by providing for a privilege, confidentiality of information, and tort immunity for the Louisiana State Bar Association, the Louisiana Bar Association’s Committee on Alcohol and Drug Abuse, Lawyer’s Assistance Program, Inc., the Louisiana Bar Foundation, their officers, directors, agents and employees, and persons who furnish information and participate in the counseling and intervention program of the Louisiana State Bar Association’s Committee on Alcohol and Drug Abuse and Lawyer’s Assistance Program, Inc., a non-profit corporation whose activities are determined by the Committee on Alcohol and Drug Abuse."

3. The statute goes on to prescribe specific and particular rights of confidentiality and civil immunity. As a result, members of the Committee on Alcohol and Drug Abuse or the Lawyer’s Assistance Program, Inc. (LAP, Inc.) may interact with practicing alcoholics who are attorneys and confront them with their behavior and elicit confessions of misdeeds occurring as a direct result of their disease of alcoholism without the attorney or the member of the judiciary being fearful that these acts of misconduct will be reported to the disciplinary counsel or to any other tribunal or entity.

LSA - R.S. 37:221 - The Louisiana Legislature Provides Absolute Confidentiality and Privileges to the Committee on Alcohol and Drug Abuse.

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