Are You Certain That Your Lawyer Is Not Impaired?

Are You Certain That Your Lawyer Is Not Impaired?
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I have written a number of articles about the negative impact that certain "types" of attorneys have made on our "system of justice." The first article I wrote on that subject was titled "'Pit Bull' Attorneys and Family Law," which was published in the March/April 2010 edition of the San Gabriel Valley Psychological Association's newsletter. Furthermore, the first article I wrote for the Huffington Post was titled "The Personality and Philosophy of Attorneys Impact the Results." I most recently touched upon the subject in my article titled "Must Parties Confirm That They Are Open to Settlement For Mediation to Be Effective?," in which I addressed the issue of the percentage of lawyers and judges who abuse substances. Since subtlety is not my strong suit, I think it's about time that I try a different approach.

On April 9, 2014, the ABA Journal published an article titled "Ex-wife gets less in divorce of BigLaw partner because her badmouthing hurt rainmaking, judge says." The article states in pertinent part as follows: "Judge Laura Drager of Manhattan said the couple's divorce was 'one of the most contentious litigations this court has ever presided over.'" It just so happens that the husband is a partner at a large law firm and the wife "worked as an associate at a personal injury law firm before the birth of her children. She also was an unpaid advocate for people with hearing loss."

It would be a mistake to consider that case an isolated incident. In fact, on August 12, 2012, the ABA Journal published an article titled "Judge calls law profs' 17-year divorce-related legal battle 'frightening.'" That article described "law professors Christo Lassiter of the University of Cincinnati, and Sharlene Boltz of Northern Kentucky University were married for 10 years after wedding in 1986. [As of the date of that article,] their divorce-related legal battles had lasted for 17 years." As the article provides, each of them "has more than pushed the envelope with regard to abusing the court system." In a 2002 opinion, the District Court of Appeals wrote, "This court has not seen many domestic relations cases more contentious and acrimonious ... than this case. The parties, who are both law professors and who ought to know better, engaged in thoroughly inappropriate behavior that was detrimental to the resolution of their case and to the welfare of their children for which both claimed to be primarily concerned." Please note that the 2002 opinion was written a decade before the ABA Journal article.

The two cases I cited above are only two of many cases in which divorcing lawyers turned their own divorces into nightmares. Unfortunately, this is not only true when lawyers divorce each other. Generally speaking, every time I have handled a divorce wherein just one of the spouses was an attorney, the divorce turned out to be more contentious than similar cases wherein neither spouse happened to be a lawyer. Of course, sometimes lawyers learn from the mistakes of others and make a conscious decision to do things differently when it comes to their own divorce. Such attorneys tend to be "divorce insiders," specifically family law attorneys. In fact, one such lawyer wrote about just that in an article he published on January 13, 2014 titled "A Family Lawyer Reflects on His Own Divorce." Please note that he was able to learn from the mistakes of others because he had been practicing family law for several years before he divorced. In the article, he stated, "But, here is the thing - and what I wanted to stress - we never stepped into court to fight over anything. The Court system should never be your first resort." As he stated, they "argued; but, outside of court and with respect for each other."

As J. Richard Kulerski and Kari Cornelison wrote in their article titled, "What Do Divorce Lawyers Do In Their Own Divorces?," divorce lawyers try to stay out of court:

Despite their familiarity with the system, and despite any perceived advantage they are believed to have, they do everything they can to settle their case before it reaches the court system. Divorce insiders try to resist the inclination to fight. They think going to court is a losing proposition. It wastes energy, time, and money and is a last resort; it is something they will consider only when there is no other choice.

The fact that lawyers tend to make a mess of their own divorces, unless they happen to be "divorce insiders" and learned from the mistakes of others, is a rather important reality to consider. In order to understand the significance, we must pay attention to history and statistics.

Studies indicate that the law, along with other helping professions such as medicine, dentistry and social work tend to attract a statistically greater number of those individuals who are prone to the development of chemical dependencies, predominantly alcoholism.... The pressures and difficulties of professional practice provide ready excuses for outbursts of temper, confusion or delay, exhaustion, inattention, or anxiety.... Most lawyers who suffer from addiction will never become involved in disciplinary matters. At the very least, alcoholic lawyers fail to enjoy their potential. Their clients, the legal profession, and the community as a whole are impoverished in the process. At the worst, alcoholic lawyers will lie, cheat and steal and thereby damage their clients, down- grade the profession, and destroy their careers and reputations. The same holds true for drug addicts.

-- The Benchmark Institute

It is estimated that 18 to 20 percent of the nation's lawyers abuse alcohol or drugs. By comparison, among the general population, including persons in other highly stressful professions such as physicians and pilots, the estimated rate of chemical abuse is at a much lower eight to ten percent.

-- American Bar Association

Diagnoses of substance use disorders include Substance Abuse (a maladaptive pattern of use leading to clinically significant impairment and distress) and Substance Dependence (cognitive, behavioral, and physiological symptoms indicating continued substance use despite significant substance-related problems). The latter diagnosis is more severe and should raise significant concerns within a bar application. Because drugs of abuse achieve their 'highs' by altering brain chemistry, they can affect every aspect of behavior. Diagnostic criteria for abuse of alcohol and virtually every other drug indicate cognitive impairments and aberrant behavior and emotions that can impact every aspect of the essential eligibility requirements for the practice of law.

-- National Conference of Bar Examiners

Did it ever occur to anyone that when a case goes before a judge and two lawyers are involved, there is a 3/5 chance that one of those three legal professionals has a problem with substance abuse and is not sober? How do you think that impacts the manner in which that case will proceed? What about when Minor's Counsel is appointed to represent the interests of the child(ren)? Doesn't that increase the chances that one of the legal professionals involved in the case has a substance abuse problem? By the way, this is by no means specific to family law. In fact, "the data suggest that nearly 70 percent of lawyers are likely candidates for alcohol-related problems at some time within the duration of their legal careers..."

Sadly, the concern doesn't end there because we haven't yet addressed the percentage of attorneys with personality disorders and/or high conflict personalities. I will address those issues in a subsequent article. In fact, "estimates of the number of lawyers affected by substance abuse, psychological disorders, or other impairments vary greatly, from a low of 15 percent to a high of 50 percent (in a 1996 Washington Lawyer Assistance program study)... A 1992 Illinois Lawyers Concerned for Lawyers study documented that between 50 percent and 80 percent of all cases appearing before disciplinary committees, including minor matters, have as their cause some form of chemical or psychological impairment..."

One or both parties in many (most?) Family Court cases today have a mental health issue that is unrecognized -- such as a personality disorder, substance abuse, bipolar disorder, depression -- disorders which are often characterized by denial and blaming others. This reflects the growth of these problems in the larger society today. These are not problems unique to Family Court, but Family Courts need to recognize them.

Along those same lines, J. Kim Wright recently shared the following with me:

A judge told me that he never sees anyone in custody court unless one of them has a personality disorder, addiction or impairment. All others have resolved long before they come to him. (He pointed out that sometimes it is not the client who is impaired, rather the lawyer.)

The presumption ought to be that two parents know what is best for their children. If they are unable to agree and therefore end up abdicating their roles to the Court, the presumption ought to be that they're in need of serious therapy and that the children probably need more.

I completely agree with that assessment. If you pay close attention to what that judge told Ms. Wright, you will notice that "sometimes it is not the client who is impaired, rather the lawyer."

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