Addiction and Psychiatric Impairment of Lawyers and Judges

A Search for Meaningful Data

A recent study of discipline cases in Ontario, Canada, revealed nearly 50% of lawyers facing serious disciplinary sanctions admitted to either alcohol, drug or psychiatric impairment. There are convincing reasons to believe that the actual rate of impairment of lawyers facing serious professional wrongdoing is higher than 50%. Nonetheless, the date from this study easily demonstrates the seriousness of impairment in our profession and the value of Lawyer Assistance Programs. This study also provides a model for further cost effective and reliable research.

For nearly 20 years, professionals involved in Lawyer Assistance Programs in Canada and in the United States have speculated that the rate of alcoholism, drug addiction and psychiatric impairment among Lawyers and Judges are substantially higher than those in the rest of the adult population. These speculations, supported by observation and anecdotal evidence, have lead to two working assumptions among Lawyer Assistance Program personnel. First, that addiction problems among lawyers and Judges run at about 15% and that psychiatric impairment also runs at about 15%; and, secondly, that perhaps one-third of each group of Lawyers and Judges is in both categories, for an overall combined rate of 25% addiction and/or psychiatric impairment.

Statistical data from the field and from several informal studies tell us that these working assumptions are reasonable. For example, it is accepted that 10% of the adult working population is alcoholic, which is to say, addicted to alcohol. The number is considerably higher if persons who abuse alcohol and are on the road to full addiction are included in the count.

As suggested above, the rate does seem significantly higher among Lawyers and Judges. Other professional bodies, including physicians and dentists, have come to believe that the rate of impairment among those professionals is about the same at approximately 25%. The rate appears to be even higher among older practitioners, suggesting the progressive nature of addiction and other forms of impairment.

In the United States, the American Bar Association Commission on Lawyer Assistance Programs has suggested that as many as 90% of all serious trust fund disciplinary matters involve substance abuse, primarily alcoholism. A recent study conducted by the Washington State Bar Association found that over 18% of attorneys were dependent on or had abused alcohol and that a similar number had suffered from depression. The State of Georgia has estimated that over 80% of clients' security-fund-related disciplinary cases involve Attorney substance abuse. Similar informal studies and estimates in other States and Provinces have suggested similar rate of alcoholism, depression and other impairment.

None of the research conducted to date meets the very high standard of the scientific method. Preliminary inquiries by the ABA and by the CBA into obtaining statistics or date that meet the scientific criteria have quickly come up against the enormous cost of such studies. Further, there is a lingering concern that a formal scientific study could prove unreliable in attempting to quantify impairment among professionals who will guard their privacy and hide their condition at all possible cost. Further, it has been observed that the legal profession has itself exhibited a form on institutional denial that has served to hide impairment of its members.

The Canadian Bar Association and the American Bar Association have searched for a cost-effective methodology for determining actual rates of addiction and impairment, but without success. Addiction and psychiatric illness are characterized by denial on the part of those who suffer and denial by their families, friends, professional colleagues and clients.

Collecting reliable data has proved to be difficult. Comprehensive scientific research, analysis and reporting would be prohibitively expensive. Considerable use can be made of the general population data already available but Lawyer Assistance Programs and their funding bodies would benefit from specific data about the rates of those impairments in the legal profession.

The organizers, coordinators, directors and funding bodies of Lawyer Assistance Programs have been keenly interested in the connection between impairment caused by addiction or psychiatric illness and the cost of negligence claims, disciplinary proceedings, compensation for trust fund defalcations and associated costs. Lawyer Assistance Programs and their supporters believe that the full funding of their programs is warranted by the cost savings enjoyed by Bar Associations, Law Societies, Indemnity Funds, Negligence Insurers and Health Care Insurers.

Lawyer Assistance Programs as well as the ABA and the CBA have searched for statistics or other data which will demonstrate the very high rate of impairment which they believe exist in the legal profession. They are not alone in this, as noted above. Physicians and dentists have come to believe that the rate of impairment in their professions is in fact as high as 25%, and even higher in older practitioners.

A recent study in Ontario, Canada, reveals that the reported decisions of lawyer disciplinary proceedings may offer a sound source of available data that will allow for a quantifiable assessment of the rates of addiction and psychiatric illness in lawyers coming before disciplinary bodies. The Ontario study involved the review and assessment of all disciplinary proceedings reported by the Law Society of Upper Canada in its Discipline Digest for a three year period.

The sum of this available data meets three important criteria:

1. The data is inherently reliable notwithstanding that the source will tend to understate the existence of addiction or psychiatric impairment
2. The data is inherently probative, in that the connection between impairment and professional malfeasance is almost inevitably made out
3. The data is easily available and inexpensive to retrieve

The Ontario Study

An experience trial lawyer reviewed all disciplinary proceedings reported by the Law Society of Upper Canada, the entity responsible in Ontario for governing and disciplining practicing lawyers. The Law Society publishes a Discipline Digest reporting on the allegations, evidence and disposition of all serious disciplinary proceedings against Lawyers. These disciplinary proceedings were reviewed for a three year period (October 1992 to October 1995), involving 172 cases. Each of the cases was carefully reviewed for mention of alcohol problems, drug abuse and psychiatric problems (including depression, stress and serious personal difficulties). Four categories were created for the different disposition of these 172 cased: (see Table I).


 

Table 1: Categories of Disciplinary Disposition

Source: Disclipline Digest, LSUC, October 1992 - October 1995

Table 2: Rates of Lawyer Impairment

Source: Disclipline Digest, LSUC, October 1992 - October 1995

The Ontario study found alcohol, drug or psychiatric impairment alleged in 22.6% of all disciplinary proceedings. The rate jumps to 48% if you look at category 2,(Permitted to Resign). The rate is a full 50% for category 3, (Suspension for 12 months or longer or indefinite suspension).The overall rate in serious cases, appears to be over 50%.

While the rate is only 14% for lawyers who are disbarred, this must inevitably involve considerable under reporting. An interesting observation from the researcher supports this proposition. There were 29 disbarments for the period under review, with a total of four cases reporting addiction or psychiatric impairment, for a rate of 14%.

The researcher was personally aware of two other cases of severe alcohol addiction and two other cases of serious psychiatric impairment where there is no mention of same in the official Disciplinary Digest report. If this information were included, the rate jumps to 28%!

It is reasonable to conclude that the actual rate is at least as high as in categories 2 and 3, approximately 50%. Research on a more in-depth scale could undoubtedly reveal a much higher rate. Discussions by the researcher with senior discipline counsel at the Law Society of Upper Canada confirmed that a review of the full disciplinary file (as distinct from the Disciplinary Digest) would generate a much higher rate of addiction and psychiatric impairment. If correct, this would mean that the reported incidence of 50% alcohol and psychiatric impairment, reflects an under reporting of the actual rate of impairment.

As a starting point for fact-finding and numerical analysis, this brief study in Ontario provides useful and meaningful data. Further, it provides a useful model for further investigation and research. For example, the review of the 172 Ontario disciplinary cases could be expanded to include a review of the disciplinary files themselves, discussions with the prosecutor or defence counsel or even interviews with the lawyers who were disbarred, permitted to resign, suspended or otherwise dealt with in discipline.

Perhaps the most significant conclusion we can draw from the Ontario study is that approximately 50% of lawyers facing serious disciplinary charges admit to addiction or psychiatric disability. Certainly, this provides a starting point for further research and a wider understanding of the role and importance of Lawyer Assistance Programs in the legal profession.