(This article appeared in Journal 21,4, December 2016)
“It’s a little Anxious,” Piglet said to himself, “to be a Very Small Animal Entirely Surrounded by Water. Christopher Robin and Pooh could escape by Climbing Trees, and Kanga could escape by Jumping, and Rabbit could escape by Burrowing, and Owl could escape by Flying, and Eeyore could escape by – by Making a Loud Noise Until Rescued, and here am I, surrounded by water and I can’t do anything.”
― A.A. Milne
“Good morning, Eeyore,” said Pooh.
“Good morning, Pooh Bear,” said Eeyore gloomily. “If it is a good morning,” he said. “Which I doubt,” said he.
“Why, what’s the matter?”
“Nothing, Pooh Bear, nothing. We can’t all, and some of us don’t. That’s all there is to it.”
“Can’t all what?” said Pooh, rubbing his nose.
“Gaiety. Song-and-dance. Here we go round the mulberry bush.”
― A.A. Milne
Anxiety and depression. Both conditions, as well as other mental health concerns, are prevalent in the legal profession. The same is unfortunately true of substance abuse. The American Bar Association Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation recently released a study entitled The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys.1 The study of almost 13,000 employed attorneys confirmed that lawyers have significantly more drug, alcohol, or mental health problems than other professionals or the general population. Sadly, lawyers are not seeking the help they need.
As part of the study, participants were asked to identify the biggest barriers to seeking treatment or assistance. Fear of being “found out” or stigmatized was the overwhelming first choice response. The study also revealed that while 84% of the lawyers indicated awareness and knowledge of lawyer assistance programs, only 40% indicated that they would be likely to utilize the services of such a program. Again, privacy and confidentiality concerns were cited as the major barrier to seeking help through a lawyer assistance program.
These concerns should never prevent a North Carolina lawyer from seeking support in addressing substance abuse, mental health issues, or other debilitating conditions.
The North Carolina Lawyer Assistance Program (“LAP”) provides free, confidential assistance to lawyers, judges, and law students. The LAP provides both formal and informal mental health and substance abuse assessments. The LAP refers lawyers to appropriate therapists and to the counselors, treatment centers, psychiatrists, career counselors, physicians, and other health care professionals who are best suited to assist each lawyer with his or her particular issue. The LAP also provides follow-up counseling.
All communications with the LAP are strictly confidential.
When a lawyer contacts the LAP, the information is never conveyed to anyone outside of the LAP program without a written release signed by the lawyer. All communications with the LAP are confidential. This means that the LAP does not speak to family members, law partners, friends, colleagues, or any State Bar staff.
The confidential nature of these communications is specifically recognized in our Rules of Professional Conduct. Pursuant to Rule 1.6(d):
The duty of confidentiality described in [Rule 1.6] encompasses information received by a lawyer then acting as an agent of a lawyers’ or judges’ assistance program approved by the North Carolina State Bar or the North Carolina Supreme Court regarding another lawyer or judge seeking assistance or to whom assistance is being offered. For the purposes of this Rule, “client” refers to lawyers seeking assistance from lawyers’ or judges’ assistance programs approved by the North Carolina State Bar or the North Carolina Supreme Court.
The deference that the North Carolina State Bar gives to these confidential communications is expressed in comment [22] to Rule 1.6:
Information about a lawyer’s or judge’s misconduct or fitness may be received by a lawyer in the course of that lawyer’s participation in an approved lawyers’ or judges’ assistance program. In that circumstance, providing for the confidentiality of such information encourages lawyers and judges to seek help through such programs. Conversely, without such confidentiality, lawyers and judges may hesitate to seek assistance, which may then result in harm to their professional careers and injury to their clients and the public. The rule, therefore, requires that any information received by a lawyer on behalf of an approved lawyers’ or judges’ assistance program be regarded as confidential and protected from disclosure to the same extent as information received by a lawyer in any conventional client-lawyer relationship.
A formal ethics opinion, 2001 FEO 5, also affirms the confidential nature of communications between a lawyer and the LAP. To assist lawyers who are suffering from depression or another debilitating mental condition, the LAP organizes support groups for lawyers sometimes called “accountability groups.” At a meeting of one of these groups, lawyers share their experiences in an effort to support each other’s recovery. A designated representative of LAP is present and facilitates each meeting of a group. Pursuant to 2001 FEO 5, to promote the purposes of the LAP program, disclosures made during a LAP support group meeting are confidential and not reportable to the State Bar under Rule 8.3.2
The LAP is separate from the disciplinary arm of the State Bar.
The LAP is not in cahoots with the bar’s Grievance Committee. They have entirely different functions. The LAP seeks to provide assistance for personal problems a lawyer may have that, if not addressed, could lead to professional discipline for misconduct. The LAP does not communicate any information to any other department of the Bar, including the Office of Counsel (which handles all disciplinary matters), and the Office of Counsel has no access to LAP files or communications. If a lawyer discloses to the LAP staff or to a LAP volunteer any misconduct or ethical violations, it is confidential and cannot be disclosed.
If a lawyer later becomes involved in the discipline process, the lawyer may choose to disclose his or her LAP participation. If the lawyer is the subject of a grievance that the Grievance Committee determines is “primarily attributable to the respondent’s substance abuse or mental health problem, the committee may offer the respondent an opportunity to voluntarily participate in a rehabilitation program under the supervision of [the LAP] before the committee considers discipline.” 27 N.C.A.C. 1B, Section .0112(j)(1). If the lawyer accepts that offer, he or she signs a written waiver authorizing the LAP to report compliance with clinical recommendations to the Grievance Committee. If the lawyer successfully completes the rehabilitation program, the committee may consider successful completion of the program as a mitigating circumstance and may, but is not required to, dismiss the grievance for good cause shown.
I have worked in the ethics department of the North Carolina State Bar for over ten years and I have never learned so much as the name of a lawyer participating in the LAP, unless it was given to me by, or with the written consent of, the participating lawyer.
The LAP website contains a treasure trove of information.
I urge you to take a moment to check out the LAP website for a complete description of the program and the extensive services available to all North Carolina lawyers: nclap.org.
The following testimonials illustrate how lawyers in our community have benefitted from the services offered by LAP:
“Of the tools for recovery from severe clinical depression, I found the single most effective and useful tool for me was the connection I had and the support I received from my LAP peer support mentor, another lawyer who had recovered from what I was going through.”
“I was at a point in my life where I was confronted with a question—did I want to continue my life of misery or did I want to change? There was no halfway measure I could employ anymore to avoid the misery. Thankfully the LAP created a program for me to not only recover, but to thrive in my personal life and professional career.”
“Already sober when I became a lawyer, I relapsed partially due to the inherent stresses of the profession. I had no energy left to take care of myself. LAP was there when I needed support to get back on track and get my life back in balance.”
“I needed help on two fronts: alcoholism and the Grievance Committee. When I reached out my hand for help, LAP was there for both.”
“LAP has strengthened my connection with others who are seeking sobriety, serenity, and a balanced life while practicing law.”
I also encourage every lawyer to subscribe to the Sidebar e-newsletter. The Sidebar newsletter is a forum through which LAP shares articles and information—from lawyers’ personal stories and perspectives on the practice of law, to national mainstream news articles about the effects of stress and strategies for work-life balance. All North Carolina lawyers are invited to subscribe. To do so, fill out the “Sign up for the Sidebar Newsletter” form on the LAP home page at nclap.org. All subscriptions are confidential and anonymous. I personally subscribe to the newsletter and have found it to be informative and inspirational.
So, back to poor Piglet surrounded by rising water. What did he do?
He found a pencil and a small piece of dry paper, and a bottle with a cork to it. And he wrote on one side of the paper:
HELP!
PIGLIT (ME)
and on the other side:
IT’S ME PIGLIT, HELP
HELP!
Then he put the paper in the bottle, and he corked the bottle up as tightly as he could, and he leant out of his window as far as he could lean without falling in, and he threw the bottle as far as he could throw.
Be like Piglet. Ask for help if you need it. You can call any of these individuals confidentially: Robynn Moraites at 704-892-5699, Towanda Garner at 919-719-9290, Cathy Killian at 704-910-2310, or Nicole Ellington at 919-719-9267.
Suzanne Lever is assistant ethics counsel for the North Carolina State Bar.
Endnote
1. Patrick Krill, Ryan Johnson, and Linda Albert, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, Journal of Addiction Medicine, Feb. 2016, Vol. 10, Issue 1, pp. 46-52.
2. Rule 8.3(a) mandates that a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, must report that information to the Bar. However, Rule 8.3(c) provides that there is no requirement to disclose information otherwise protected by Rule 1.6. Pursuant to 1.6(d), the duty of confidentiality “encompasses information received by a lawyer then acting as an agent of a lawyers’ or judges’ assistance program approved by the North Carolina State Bar or the North Carolina Supreme Court regarding another lawyer or judge seeking assistance or to whom assistance is being offered.”