Alcohol and drug abuse among practicing attorneys occurs at alarmingly high levels.1 While recent studies conservatively suggest that at least 20% of practicing lawyers are problem drinkers,2 a study by the Association of American Law Schools indicated that 30.9% of the students surveyed stated that they had abused alcohol during their lifetime, and 10.1% admitted that they abused marijuana.3
Substance abuse can seriously diminish an attorney’s ability to practice effectively and cause a variety of professional problems, including missed filing deadlines, failure to advise clients of legal proceedings, missed court appearances, unauthorized use of client funds, inattention to the work and poor judgment.4 Moreover, it is generally estimated that almost half of lawyer discipline cases involved some type of substance abuse problem.5 Specifically, in Illinois, 36.7% of attorneys subject to formal disciplinary proceedings between July 1, 1988 and June 30, 1993 either asserted that they suffered from or were found to suffer from an impairment.6
To intelligently deal with this problem and its victims, the Attorney Registration and Disciplinary Commission and the Illinois Supreme Court have established enlightened procedures that safeguard the public and maintain the integrity of the legal profession, but also encourage impaired attorneys to admit to the abuse and obtain the appropriate treatment.
This article first examines the disciplinary process when an attorney either asserts or is found to suffer from an impairment arising out of substance abuse.
Next, this article discusses confidentiality issues at each stage of disciplinary proceedings involving attorney impairment.
Finally, this article considers an impaired lawyer’s opportunities for help in rehabilitation under the Illinois Lawyer’s Assistance Program ("LAP").
I. The Disciplinary Process
A. The Inquiry Phase and Informal Supervision
The disciplinary process starts at the intake level. Here, six of the ARDC’s 35 lawyers with caseload responsibility screen grievances to determine whether a grievance is meritorious.7 In order for a grievance involving attorney substance abuse to advance to the inquiry level, the grievance must factually allege either a rule violation or that the attorney is incapacitated from continuing to practice law due to substance impairment.
Under the first situation, if there is an alleged rule violation associated with the attorney’s impairment and the grievance proceeds to the inquiry level, the respondent attorney can voluntarily acknowledge the impairment and enter into an agreement with the Administrator under ARDC (Rule 108).8 This is an informal type of plea bargain. The Inquiry Board, with the agreement of the attorney and the Administrator, may defer further proceedings pending the attorney’s compliance with certain conditions imposed by the Board. Under this procedure, the Inquiry Board imposes informal probation or supervision, which is completely confidential under Illinois Supreme Court Rule 766.9
Rule 108 sets forth a nonexclusive list of conditions that the Administrator may insist upon as part of the arrangement. Some notable conditions include the attorney’s participation in psychological counseling or treatment and abstinence from alcohol or drugs. Periodic testing of drugs and alcohol may also be included in the arrangement. Rule 108 supervision however, is generally limited to less egregious rule violations committed in conjunction with the impairment. In particular, the Inquiry Board may not defer proceedings under Rule 108 if: 1) the conduct involves misappropriation of a client or third person’s funds; 2) the conduct involves criminal activity reflecting adversely on the attorney’s honesty; 3) the conduct resulted in or is likely to result in a loss of property or rights of a client or third person; or 4) the attorney has previously been disciplined under Rule 108.10 Currently, only two attorneys suffering from an impairment are on Rule 108 supervision.11
In my opinion, the rare use of Rule 108 supervision is in part due to many respondents’ unfamiliarity with the rule and their denial, which results from their impairment. Attorneys with substance abuse problems are well advised and best served by engaging counsel to represent them at the Inquiry level, especially if the counsel is familiar or experienced with the ARDC rules and proceedings. At this level, the process is adversarial, but with the help of good counsel, developing problems can be eliminated in an entirely confidential setting.
The second way a grievance involving attorney substance abuse might proceed to the Inquiry level is if the grievance alleges facts sufficient to cause the Inquiry Board to conclude that the attorney is incapacitated from continuing to practice law by reason of the impairment. If the Inquiry Board finds that there is reason to think the attorney is incapacitated as a result of the impairment, the supervision or probation procedure under Rule 108 is not available to the respondent. The Administrator must file a petition with the Hearing Board under Supreme Court Rule 758.12
B. Formal Disciplinary Charges and Hearings
If a formal complaint or petition is brought against the attorney, he or she must then go before the Hearing Board to answer the charges. At this level, an attorney’s impairment resulting from substance abuse becomes an issue in one of two ways: 1) under Rule 758, the Administrator files a petition alleging that the attorney is incapacitated from continuing to practice law by reason of mental infirmity, mental disorder, or addiction to drugs or intoxicants; or 2) under a Rule 753 disciplinary proceeding, either the attorney introduces evidence of impairment or rehabilitation of impairment as a mitigating factor in considering the appropriate sanction for violation, or the Administrator introduces evidence of the impairment as an aggravating factor.
1. Rule 758 Petition
In the first situation, the Administrator files a Rule 758 petition because the Inquiry Board finds reason to conclude that the attorney is incapacitated as a result of an impairment. In addressing a Rule 758 petition, the Hearing Board must determine if the attorney is incapacitated. If the panel enters that finding, it must then recommend that either the attorney be transferred to inactive status until the disability ceases or the attorney be permitted to practice law subject to certain conditions.13
For example, In re Waugh,14 the Administrator filed a 758 petition alleging that the respondent was incapacitated by reason of a mental infirmity, mental disorder or addiction to intoxicants. When the respondent appeared before the Hearing Board he admitted abusing alcohol, codeine, valium and crack cocaine, and that he had participated unsuccessfully in three chemical dependency programs because he "didn’t have the right attitude." Furthermore, two psychiatrists testified regarding the respondent’s substance abuse. Both psychiatrists concluded that he suffered from poly-substance abuse and a bi-polar disorder, but that he could return to practice if he remained drug and alcohol free.
Based on the medical testimony, the Hearing Board found that the respondent was incapacitated due to a mental disorder and addiction to drugs.15 The Board stated that it was mindful of the respondent’s recent strides toward controlling his problem and abstaining from drugs and alcohol, but noted that not enough time had elapsed to accurately assess the respondent’s commitment to treatment. The Hearing Board noted that the respondent had only abstained from alcohol for a few months and had just recently completed a chemical dependency program. Accordingly, the Board recommended that the respondent be placed on inactive status, which was subsequently approved by the Review Board and implemented by the Illinois Supreme Court.16
The Waugh case also provides an example of a situation in which an attorney seeks restoration of his practice privileges after being placed on inactive status as a result of a Rule 758 petition. Nine months after the Supreme Court placed him on inactive status, Waugh filed his petition for restoration under Rule 759.17 The Administrator filed exceptions to the petition and urged that the Hearing Board require him to show that he was no longer incapacitated. In addition, the Administrator requested that the Board appoint a medical expert to examine the petitioner.
The evidence at the restoration hearing consisted of the testimony of the petitioner’s mother, a psychiatrist, and the deposition of a mentor. The psychiatrist testified that, although in his opinion the petitioner seemed able to practice law, he still had the propensity to revert back to alcohol and drugs when confronted with stress.
The Hearing Board found that the petitioner was not ready to be restored to active status. In making this determination, the Board noted that the petitioner has the burden under a Rule 759 petition to establish by clear and convincing evidence that "his mental disorder has been cured [or overcome] and is not likely to recur, and that he is fit to practice law."18 In this case, the Hearing Board found that, although the petitioner had sufficiently established that he overcame his drug and alcohol dependence, the evidence still showed he had a potential to revert to alcohol or drug use when faced with stress. Therefore, the Board recommended that the petitioner be restored to active status on June 1, 1998, provided he abstain from alcohol and drug use for a year and comply with certain other conditions.19
In ruling on a Rule 758 petition, the Supreme Court can enter an order transferring an impaired attorney to inactive status or impose reasonable conditions upon the attorney’s continued practice of law. Also, the court can put an impaired attorney on probation under Rule 772, which covers impairment and non-impairment matters.20 Currently, one attorney is on active status with conditions pursuant to Rule 758 and 75921; whereas under Rule 772, there are currently nineteen attorneys on probationary status for impairment and non-impairment matters.22 Regardless of the approach, both of these rules provide flexibility for fashioning conditions that will encourage the attorney to rehabilitate himself, while, at the same time, achieve the two-part goal of the disciplinary process: safeguarding the public and maintaining the integrity of the legal profession.
2. Mitigating Circumstance For Other Misconduct
An attorney’s alleged substance abuse impairment also can become an issue in a disciplinary proceeding when, as a respondent, the attorney introduces evidence of the impairment or rehabilitation of impairment as a mitigating circumstance in determining the appropriate discipline for other misconduct. The respondent or his counsel may introduce evidence in order to convince the Hearing Board to recommend a lesser sanction than suspension or disbarment to the Supreme Court. A respondent’s goal in introducing this evidence is to receive a recommendation of probation under Rule 772.
In the landmark decision of In re Driscoll,23 the Illinois Supreme Court considered for the first time an attorney’s alcoholism when deciding to impose a lighter sanction and suspend an attorney for six months instead of disbarring him for converting his client’s funds. Although the court declined to carve out a blanket defense of impairment for an ethical violation, the court noted that "[a]lcoholics need not be treated like other people; our duty to uphold the standards and reputation of the profession is not incompatible with sympathy and leniency for victims of alcoholism."24
This reasoning was reiterated by the Supreme Court in its In re Ackerman25 decision. In that case, the Administrator filed a petition charging the respondent with nine counts of neglecting legal matters entrusted to him. The Hearing Board found the respondent guilty of neglect on all counts and recommended that the respondent be censured and placed on probation for two years. The Review Board adopted the findings, but recommended that the respondent be suspended for three years, that the order of suspension be stayed, and that he be placed on probation for three years. The Supreme Court declined to follow the decision of the Review Board and, instead, suspended the respondent for six months, but stayed the suspension and placed him on conditional probation.26 In arriving at this decision, the court noted that the respondent had established that he was impaired during the greater part of the misconduct through the testimony of his physician. The Supreme Court, following the reasoning in Driscoll, stated the respondent’s alcoholism presented strong mitigating circumstances in this case justifying leniency.27
The Driscoll and Ackerman opinions illustrate the Supreme Court’s realization of the serious impact substance abuse has made on some members of the legal profession.
II. Confidentiality Issues And Attorney Impairment
Supreme Court Rule 766 sets forth disciplinary matters that shall remain private and confidential.28 Matters mentioned under this Rule include proceedings before the Inquiry Board. This provision applies to all matters brought before the Inquiry Board, whether they involve attorney impairment or not. Rule 766 also provides that proceedings before the Hearing and Review Boards pursuant to Rule 758 shall remain confidential.
Evidence of an attorney’s impairment at the Inquiry level is totally confidential; however, at the Hearing and Review Board levels, evidence of an attorney’s impairment is only confidential if the disciplinary proceeding involves a Rule 758 petition. Therefore, it appears that if an attorney introduces evidence of impairment at the Hearing Board level as a mitigating circumstance in a proceeding involving other misconduct, such evidence would not be private and confidential thereafter. However, it is not uncommon for the counsel for a respondent to seek a protective order sealing the reports of medical practitioners filed with the Hearing Board regarding the physical, psychological or medical condition of the respondent. Those motions have been granted in some cases.
Even in Hearing and Review Board proceedings pursuant to a Rule 758 petition, confidentiality is not absolute. When the Supreme Court rules in a disciplinary proceeding, the proceeding is public. Thus, even if the disciplinary proceeding was confidential at the Hearing and Review Board levels, it becomes a public matter once it reaches the Supreme Court level. If a confidential medical report or a physician’s testimony involving an attorney’s impairment is attached to the Hearing or Review Board’s report and recommendation that is filed with the Supreme Court, that information also becomes public even if it was protected below.
In contrast, proceedings before the Inquiry Board pursuant to Rule 108 remain totally confidential. This result occurs because a formal complaint is never filed against the attorney, and the attorney voluntarily agrees with the Administrator to enter into an informal probation or supervision. Thus, evidence of an attorney’s impairment, such as medical reports remain strictly confidential if the attorney agrees to Rule 108 supervision.
III. Lawyer’s Assistance Program
The Lawyer’s Assistance Program ("LAP"), which was established in Illinois in 1980, provides services for attorneys suffering from substance abuse impairment. The Illinois Supreme Court Rules of Professional Conduct were amended to ensure that all consultation between a lawyer and LAP, or any of its trained intervenors, remains strictly confidential. For example, Rule 1.6 provides that "the relationship of a trained intervenor and a lawyer, judge, or a law student who seeks or receives assistance through the Lawyer’s Assistance Program, Inc., shall be the same as that of lawyer and client for the purposes of the application of Rule 8.1, Rule 8.3 and Rule 1.6."29
LAP performs an invaluable function in assisting those members of our profession that suffer from substance abuse problems and want to seek recovery. Formed through the joint efforts of the Chicago Bar Association and the Illinois State Bar Association, LAP is an independent not-for-profit corporation that provides education, consultation, intervention, and other assistance to lawyers, judges and law students who are victims of substance abuse. LAP relies only on donations and contributions from bar associations, legal organizations, law firms and individuals as its source of funding. LAP is in need of regular monetary support to continue its worthwhile work. In May, 1997, both the CBA and the ISBA agreed to support a measure that would create a stable funding source. Under this measure, attorney registration fees would be increased by five dollars per attorney to provide funding for LAP. The increased funding will allow LAP to continue its efforts. As of the date of this article, the CBA and the ISBA have passed resolutions supporting the measure. This measure must be presented to the Illinois Supreme Court for final approval.
Considering the seriousness of the problem of attorney substance abuse and our Supreme Court’s history of enlightened and thoughtful response to the problem, one can only hope that the established and sanctioned method for intervention and assistance will continue with some type of consistent funding. It seems a five dollar a year increase is not overly burdensome considering the benefits LAP provides the entire legal community. Also, it can be argued that intervention and early treatment is preferable in terms of protecting the public. However, if this source of funding does not become available, our state’s bar associations need to demonstrate the leadership necessary to preserve an institution important to their constituents.
Attorney substance abuse is a problem that adversely affects the entire legal community and the quality of legal services provided to the public. Illinois has been at the forefront of states that choose to deal with this problem in an intelligent fashion by establishing procedures that safeguard the public and maintain the integrity of the legal profession, but also encourage impaired attorneys to rehabilitate themselves and reestablish or maintain their professional fitness in a controlled setting.
Attorneys suffering from substance abuse are well advised to engage counsel familiar with these procedures to represent them at the Inquiry level. In doing so, impaired attorneys should be better able to obtain the best possible disposition.
1Rick B. Allan, Alcoholism, Drug Abuse and Lawyers: Are We Ready To Address the Denial?, 31 Creighton L. Rev. 265, 265-66 (1997) (citing studies conducted in Washington, Wisconsin and Arizona); see also Connie J.A. Beck et al., Lawyer Distress: Alcohol-Related Problems and Other Psychological Concerns Among a Sample of Practicing Lawyers, 10 J.L. & Health 1, 29 (1996) (finding that nearly 70% of lawyers who participated in Arizona and Washington studies scored above the case cutoff for possible lifetime alcohol related problems).
2Allen, supra note 2, at 266 (citing Report of the AALS Special Committee on Problems of Substance Abuse in Law Schools, 44 J. Legal Educ. 35, 43 (1994).
3Richard M. Marino, Appropriate Discipline for the Attorney-Addict, 68 Conn. B.J. 368, 368-69 (1994).
4John Rogers Carroll & Vincent J. Rinella, Jr., Attorneys and Alcohol: How to Help Impaired Lawyers, 30 Trial 28 (1994).
5Memorandum from Christine Anderson, Senior Counsel, Attorney Registration and Disciplinary Commission, to Mary Robinson, Administrator, Attorney Registration and Disciplinary Commission 3 (Aug. 1, 1995) (on file with author).
6Mary Robinson, Avoiding ARDC Anxiety: A Disciplinary Primer, 84 Ill. B.J. 452, 453 (1996).
7Rules Of The Attorney Registration and Disciplinary Commission Rule 108 (amended 1992).
8Supreme Court of Illinois Rules on Admission and Discipline or Attorneys Rule 766(a) (amended 1994).
9Rules Of The Attorney Registration and Disciplinary Commission Rule 108 (amended 1992).
10Report from Christine Anderson, Senior Counsel, Attorney Registration and Disciplinary Commission, presented at Attorney Registration and Disciplinary Commission Hearing Board Seminar (Apr. 11, 1997 & update Jan. 23, 1998) (on file with author).
11Supreme Court of Illinois Rules on Admission and Discipline of Attorneys Rule 758 (amended 1990).
12In re Thomas P. Cerone, 93 CH 204 (1994). See also Supreme Court of Illinois Rules on Admission and Discipline of Attorneys Rule 772 (1983) (setting forth conditions for probation where an attorney has a disability which is temporary or minor and does not require transfer to inactive status).
1394 SH 147 (1995), aff’d, M.R. 12522 (1996).
14Id. at 6.
15Id. at 6-7.
16In re Waugh, 97 RS 2512 (1997).
17Id. at 8 (quoting In re Hessberger, 451 N.E.2d 821, 823-24 (1983)).
18Id. at 9-13
19Supreme Court of Illinois Rules on Admission and Discipline or Attorneys Rule 772 (1983).
20Anderson, supra note 11, at 2.
22423 N.E.2d 873 (Ill. 1981).
23Id. at 874-75.
24457 N.E.2d 409 (Ill. 1983).
25Id. at 415.
26Id. at 412-15.
27Supreme Court of Illinois Rules on Admission and Discipline or Attorneys Rule 766 (amended 1994).
28Supreme Court of Illinois Rules of Professional Conduct Rule 1.6 (amended 1994).
David F. Rolewick is a Principal of Rolewick & Gutzke, P.C., Wheaton. His practice is concentrated in Business Representation, Real Property and Estates. He is an A.R.D.C. Hearing Board Chair. He received his Undergraduate Degree in 1968 and his Law Degree in 1971 from Loyola University-Chicago.