an inventive approach to mental illness &...

AN INVENTIVE APPROACH

TO MENTAL ILLNESS &

SUBSTANCE ABUSE

We’re Betting…

• You’re only here to get credit.

We’re Betting…


• You don’t really care about mental

health or substance abuse (at

least in the context of ethics).

We’re Betting…


• You don’t really care about mental

health or substance abuse (at

least in the context of ethics).

• You’re sure none of this stuff

applies to YOU…

WAKE UP TO THE FACTS!

Did you know…

• 27% of North Carolina lawyers are clinically

depressed

Did you know…


depressed.

• 11% of North Carolina lawyers think about killing

themselves at least once every month

Did you know…


depressed.

• 11% of North Carolina lawyers think about killing

themselves at least once every month.

• Lawyers are #1 of 105 professions in incidence of

depression.

Depression

• 15% of people with clinical

depression kill themselves.

Depression

• 15% of people with clinical

depression kill themselves.

• Every day, 84 people in this

country commit suicide; another

1900 attempt it.

Lawyers succeed…in ways

we don’t like to recognize

• Twice as many male lawyers kill

themselves as do men in the

general population.

We don’t like to recognize…

• Twice as many male lawyers kill

themselves as do men in the

general population.

• Women attempt suicide even

more frequently—twice as often

as men.

Substance abuse makes it

worse

• Substance abusers are 10 times

more likely to commit suicide than

the general population.


worse

• Substance abusers are 10 times

more likely to commit suicide than

the general population.

• 1 in 5 lawyers are addicted to

alcohol.


worse

• Substance abusers are 10 times more likely to commit suicide than the general population.

• 1 in 5 lawyers are addicted to alcohol; 70% have alcohol problems at some point in their career

• 25% of lawyers have substance abuse addictions

SETTING THE STAGE FOR PROBLEMS

« Strong drink » –

a state tradition

“Law and Moonshine – Illegal Whiskey in North Carolina” –

Harper’s Weekly, 1879

http://hdl.loc.gov/loc.pnp/cph.3a01309

It’s a tradition that’s always

appealed to lawyers

Advertising Ephemera Collection - Database #A0514

Emergence of Advertising On-Line Project

John W. Hartman Center for Sales, Advertising & Marketing History

Duke University Rare Book, Manuscript, and Special Collections Library

http://library.duke.edu/digitalcollections/eaa/

Advertising Ephemera Collection - Database #A0679

Emergence of Advertising On-Line Project

John W. Hartman Center for Sales, Advertising & Marketing History

Duke University Rare Book, Manuscript, and Special Collections Library

http://library.duke.edu/digitalcollections/eaa/

Word Mark BILTMORE ESTATE

Goods and Services IC 033. US 047. G & S: STILL AND SPARKLING WINES.

Registration Number 1616971

Registration Date October 9, 1990

Owner (REGISTRANT) BILTMORE COMPANY, THE AKA BILTMORE

ESTATE CORPORATION DELAWARE ONE NORTH PACK

SQUARE ASHEVILLE NORTH CAROLINA 28801

Alcohol remains important…and

lawyers remain involved

Word Mark STOLICHNAYA RUSSIAN VODKA

Goods and Services IC 033. US 049. G & S: vodka.


Registration Date September 6, 1994

Owner (REGISTRANT) PepsiCo, Inc. CORPORATION NORTH

CAROLINA

« Moonshine » has grown up

Word Mark BIOLUME

Goods and Services IC 033. US 047 049. G & S: brandy spirits; champagne;

cognac; cordials; alcoholic punch; prepared wine cocktails;

wine; liquor; distilled spirits, and prepared alcoholic

cocktails.


Registration Date December 28, 1999

Owner (LAST LISTED OWNER) BIOLUME, INC. CORPORATION 109

TRELLINGWOOD DRIVE MORRISVILLE NORTH CAROLINA

27560

Some brands go « high tech »

Word Mark RAGAPPLE LASSIE

Goods and Services IC 033. US 047 049. G & S: Wine


Registration Date June 10, 2003

Owner (REGISTRANT) Hobson, Lenna H. & Hobson, Frank W., Jr.

JOINT APPLICANTS UNITED STATES 3820 Rockford Road

Boonville NORTH CAROLINA 27011

Others sound « wholesome »

Word Mark FIRST FLIGHT CENTENNIAL

Goods and Services IC 033. G & S: Custom labeled wines.


Registration Date April 19, 2005

Owner (REGISTRANT) First Flight Centennial Foundation NON-

PROFIT CORPORATION NORTH CAROLINA P.O. Box 80337

Raleigh NORTH CAROLINA 27623

There are appeals to tradition

Word Mark REVAH

Goods and Services IC 033. US 047 049. G & S: Alcoholic beverages, namely,

liqueur, vodka, and wine.


Registration Date August 14, 2007

Owner (REGISTRANT) Ararat Import Export Co. LLC LTD LIAB CO

NORTH CAROLINA 3215 Wellington Court, Suite 103 Raleigh

NORTH CAROLINA 27615

Ethnic & snob appeal

Word Mark TOBACCO ROAD

Goods and Services IC 033. G & S: Wine.



Owner (REGISTRANT) Tobacco Road Cellars, LLC LTD LIAB CO NORTH

CAROLINA Suite 120 410 N. Boylan Avenue Raleigh NORTH

CAROLINA 27603

Links to collegiate sports

Word Mark JUNIOR JOHNSON

Goods and Services IC 033. G & S: Liquor.



Owner (REGISTRANT) Tobacco Road Cellars, LLC LTD LIAB CO NORTH

CAROLINA Suite 120 410 N. Boylan Avenue Raleigh NORTH

CAROLINA 27603

Links to professional sports

Word Mark ANY OTHER BEER IS A WATER HAZARD

Goods and Services IC 032. G & S: Beer; Lager.



Owner (REGISTRANT) MicroManagers, LLC LTD LIAB CO NORTH

CAROLINA 100 East Franklin Street, 3rd Floor Chapel Hill


And suggestive marketing

Drugs…also a state tradition

Treasury Dept. 1942 – Marijuana seizure in Garner,

NC

http://hdl.loc.gov/loc.pnp/cph.3c22908

Word Mark ROXICODONE

Goods and Services IC 005. US 006 018 044 046 051 052. G & S: pharmaceutical

preparations for the treatment of pain.


Registration Date February 11, 2003

Owner (LAST LISTED OWNER) AAIPHARMA, INC. CORPORATION

DELAWARE 2320 SCIENTIFIC PARK DRIVE WILMINGTON


Legal drugs

Word Mark SONATA

Goods and Services IC 005. G & S: pharmaceutical preparation for the treatment

of insomnia.


Registration Date June 23, 1998

Owner (LAST LISTED OWNER) KING PHARMACEUTICALS RESEARCH

AND DEVELOPMENT, INC. CORPORATION DELAWARE 4000

Centre Green Way Cary NORTH CAROLINA 27513

Made available with the help of

lawyers

Word Mark 911 STRESS CONTROL

Goods and Services IC 005. G & S: …homeopathic pharmaceutical preparations

for use during high pressure or stressful situations, and relief

from stress, nervous tension, minor anxieties, fearfulness,

oversensitivity, and mental & emotional trauma


Registration Date April 18, 2000

Owner (LAST LISTED OWNER) KING BIO, INC. CORPORATION NORTH

CAROLINA 3 WESTSIDE DRIVE ASHEVILLE NORTH CAROLINA

28806

Promising relief from all that ails us

WE’RE ALL UNDER PRESSURE

We’re all under pressure

• We are perfectionists



• We are stressed out by deadlines,

workloads, and feelings that both

of these often are beyond our

control



• We are stressed out by deadlines,

workloads, and feelings that both

of these often are beyond our

control

• We are stressed by our obligations

outside work as well

The results aren’t surprising

Substance Abuse & Depression

Pressures to take drugs, initially to help us, all too often to help us escape

Pressures to drink, both socially and professionally

Pressures of our work, home lives, and perfectionism

Remember

• 70% of us already have had or will have a

problem with alcohol at some point in

our careers

• 25% of us have a substance abuse

addiction

• 27% of us are clinically depressed right

now

Remember

• Fewer than 30% of us will finish our

professional careers without having

suffered from substance abuse or

depression

• More than 1 in 4 of us are having

such problems right now

WHY IS THIS A BAR ISSUE?

LAWYERS MUST BE COMPETENT, DILIGENT

& TRUSTWORTHY

Lawyers must be competent

Rule 1.1 Competence

A lawyer shall not handle a legal matter that the lawyer knows or should know he or she is not competent to handle without associating with a lawyer who is competent to handle the matter. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Disability is no excuse

Rule 1.1 Competence

Comments

[8] Repeated failure to perform legal services competently is a violation of this rule. A pattern of incompetent behavior demonstrates that a lawyer cannot or will not acquire the knowledge and skills necessary for minimally competent practice. For example, a lawyer who repeatedly provides legal services that are inadequate … is not fulfilling his or her duty to be competent. This pattern of behavior does not have to be the result of a dishonest or sinister motive, nor does it have to result in damages to a client giving rise to a civil claim for malpractice in order to cast doubt on the lawyer's ability to fulfill his or her professional responsibilities.

Lawyers must be diligent in

work and in communication

Rule 1.3 Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

Rule 1.4 Communication

(a) A lawyer shall:…(3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; …

Diligence requires active case

management

Rule 1.3 Diligence

Comments

[2]A lawyer's work load must be controlled so that

each matter can be handled competently.

[3] Perhaps no professional shortcoming is more

widely resented than procrastination. A client's

interests often can be adversely affected by the

passage of time or the change of conditions. …

Even when the client's interests are not affected in

substance, however, unreasonable delay can cause

a client needless anxiety and undermine

confidence in the lawyer's trustworthiness. …

Loose lips sink ships

Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by [applicable law or rules].

Fraud & Other Misconduct

are UnacceptableRule 8.4 Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;…

The PTO’s Rules May Create

Additional Issues

37 CFR § 10.23 Misconduct.

(a) A practitioner shall not engage in disreputable or gross misconduct.

…

The PTO’s Rules May Create

Additional Issues37 CFR § 11.25 Interim suspension and discipline based

upon conviction of committing a serious crime.

(a) Notification of OED Director. Upon being convicted of a crime in a court of the United States or any State, or violating a criminal law of a foreign country, a practitioner subject to the disciplinary jurisdiction of the Office shall notify the OED Director in writing of the same within thirty days from the date of such conviction. Upon being advised or learning that a practitioner subject to the disciplinary jurisdiction of the Office has been convicted of a crime, the OED Director shall make a preliminary determination whether the crime constitutes a serious crime warranting interim suspension. If the crime is a serious crime, the OED Director shall file with the USPTO Director proof of the conviction and request the USPTO Director to issue a notice and order set forth in paragraph (b)(2) of this section.

WHY IS THIS A BAR ISSUE?

LAWYERS IN TROUBLE,

GET INTO MORE TROUBLE

The Misconduct/Impairment

Link

• 50% of all discipline is attributed

to impairment


Link


to impairment

• Lack of competence and diligence


Link


to impairment


• Failure to return calls

• Reluctance to admit errors

• Hiding errors

• Covering up errors


Link


to impairment


• Criminal violations outside the firm

• Repeated DWI

• Unlawful possession/sale of controlled

substances


Link

• Impaired lawyers steal

• Close attention to finances is more

difficult

• Poor work habits => less income

• Supporting the impairing problem

costs money

• Impaired lawyers = 80% of

misappropriation discipline

Remember:

• 80% of misappropriation

• 50% of all discipline

appears to be causally linked to substance

abuse and psychological impairment

Our Brothers’ Keepers

You can help.

Lawyers are in a natural position to

make a difference in the lives of

their clients, their co-workers, their

communities, and even themselves.

You have a responsibility

• Lawyers have an ethical duty to

themselves, to their colleagues,

and to their clients and

community.

You have a responsibility

• Lawyers have an ethical duty to

themselves, to their colleagues, and

to their clients and community.

• “A lawyer, as a member of the legal

profession, is a representative of

clients, an officer of the legal system,

and a public citizen having special

responsibility …” [RPC Preamble]

No matter who you are

Rule 1.16 Declining or Terminating Representation

(a) [A] lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:…(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; …

When you’re in charge

Rule 5.1 Responsibilities of Partners, Managers, and

Supervisory Lawyers

(a) A partner in a law firm, and a lawyer who

individually or together with other lawyers

possesses comparable managerial authority,

shall make reasonable efforts to ensure that

the firm or the organization has in effect

measures giving reasonable assurance that all

lawyers in the firm or the organization

conform to the Rules of Professional Conduct.

When you’re a supervisor

Rule 5.1 Responsibilities of … Supervisory Lawyers

(b) A lawyer having direct supervisory authority over

another lawyer shall make reasonable efforts to ensure

that the other lawyer conforms to the Rules of

Professional Conduct.

(c) A lawyer shall be responsible for another lawyer's

violation of the Rules of Professional Conduct if: …

(2) the lawyer is a partner or has comparable

managerial authority in the law firm in which the other

lawyer practices, or has direct supervisory authority

over the other lawyer, and knows of the conduct at a

time when its consequences can be avoided or

mitigated but fails to take reasonable remedial action

to avoid the consequences.

When you’re a solo

Rule 1.3 Diligence

Comments

[5] To prevent neglect of client matters in the event of a sole practitioner's …disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's … disability, and determine whether there is a need for immediate protective action. Cf . 27 N.C.A.C. 1B, .0122 (providing for court appointment of a lawyer to inventory files and take other protective action to protect the interests of the clients of a lawyer who has disappeared or is deceased or disabled).

The denial dilemma

“The barrier all alcoholics and addicts face, but most particularly lawyers,

is DENIAL and it is a hallmark of this disease. Knowing this, it’s no mystery

why lawyers are one of the most difficult populations to reach. Lawyers are

skilled at denial. They are steeped in it. Beyond the normal denial symptomatic

of this disease and shared by other people and professions, the denial

encountered in the legal profession is more massive than in any other. Why?

Because the legal profession is the only profession in the world that demands

and rewards denial. Deny the facts. Deny the charges. Deny the allegations.

Fight to the end. Shove responsibility off on the other party. Minimize liability.

Rationalize and justify the consequences and your client’s position. Find the

legal loophole, the technicality, wiggle out of it. The glove doesn’t fit!!!! …

“Now, if lawyers will do all this for a client, imagine the lengths they will

go to protect their own rice bowls, … their own image. With an arsenal of

skills, they avoid being pinned down. This is their job, their training. So, when

confronted with the consequences of their own chemical use, they do what

comes naturally. They deny. They obfuscate. They deflect. They attack. They

defend. The foundation of their profession is adversarial. They succumb to

“paralysis by analysis”—debating the definition of addiction, their

consequences or steering the discussion to somebody else’s chemical use. Feel

familiar?” --Alice Tanner (2006)

Accept no excuses

When all else has failed

Rule 8.3 Reporting Professional Misconduct

(a) 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,

shall inform the North Carolina State

Bar or the court having jurisdiction

over the matter.

Remember:

• The public comes first; impaired attorneys must not

be allowed to harm clients

• You are responsible for ensuring that those under

your supervisions do not harm clients

• You are responsible for ensuring that you do not

harm clients

• DENIAL is normal…but it’s no substitute for detection

and cure

IT’S TIME FOR ACTION

Trust your informed gut…

Listen…REALLY listen…

Notice signs of depression

• A deep sense of depression, sadness, or hopelessness most of the day

• Diminished interest in most or all activities

• Significant appetite or weight change when not dieting

• Significant change in sleeping patterns

• Unusual restlessness...or unusual sluggishness

• Undue fatigue

• Persistent feelings of hopelessness or inappropriate feelings of guilt

• A diminished ability to think or concentrate

• Recurrent thoughts of death or suicide

And signs of substance abuse

• Absenteeism

• Confusion or difficulty concentration

• Spasmodic work patterns

• Generally lowered job efficiency

• Poor interpersonal relationships

• Physical problems/symptoms

• Observable physical signs

Intervene when needed

“[K]now this: Something WILL happen to

interrupt the downward spiral fueled by denial.

It’s called an intervention. It can be the

unplanned, ugly kind of intervention (arrest,

public/professional embarrassment, divorce,

suspension/disbarment, jail, health problems,

financial ruin, death). You see this kind in your

local newspaper every day, many of them

unrecoverable and some involving lawyers and

judges. Or, it can be a planned, professional

intervention.”--Alice Tanner (2006)

Not just with games…

Take Advantage of NCLAPThe Lawyer Assistance Program - www.nclap.org

It’s confidential whether you are calling to seek help

for yourself, or are calling as a spouse, child, or colleague

of a lawyer whom you suspect may have an alcohol, drug

or mental health problem, and needs help. All inquiries,

questions and conferences are privileged and held in the

strictest confidence.

Under Rule 1.6 of the Rules of Professional Conduct of

the North Carolina State Bar, the attorney/client privilege

is applied to communications between a lawyer seeking

assistance with the Lawyer Assistance Program. In order

to assure this high degree of trust and confidence, the

Lawyer Assistance Program is, by rule of the State Bar,

which has been approved by order of the North Carolina

Supreme Court, entirely separate from any ethics or

disciplinary committee of the State Bar.

Help, don’t hurt

An attorney in Wilson with an addiction to alcohol came to the courthouse in Dec. 2008, whileintoxicated. His use of foul language drew attention, and since he was on probation following his mostrecent DWI conviction and subject to random bloodtests, one was given and was positive. In January, hewas sentenced to 61 days in prison and was takendirectly from the courtroom, despite a plea that hebe allowed to take care of financial matters for at least a day or two before reporting.

The attorney, who had been sober aftertreatment for almost a year, apparently relapsedafter drinking, the night before, at the Wilson County Bar Christmas party.

Should our bar do more?

And if so, what should we do?

• NC Lawyer Assistance Program

http://www.nclap.org

• National Mental Health Information Center http://mentalhealth.samhsa.gov/publications/allpubs/sma05-4129/

• ABA Model Law Firm Impairment Policy (introduction) http://www.dcba.org/brief/marissue/1998/art60398.htm

Resources

YOU ARE NOT ALONE - Local Group Meetings - www.nclap.org for info

• Asheville PALS/FRIENDS 2nd Thursday every month

• Boone 4th Friday every month

• Charlotte PALS/FRIENDS Every Monday at 5:00 pm; PALS Support Group 3rd Friday every month

• Durham/Chapel Hill PALS/FRIENDS Group 1st Tuesday every month

• Fayetteville /Sandhill PALS Support Group 4th Thursday every month

• Greensboro Triad PALS 2nd and 4th Wednesday every month; FRIENDS Support Group 1st Friday every month

• Greenville/Down East FRIENDS/PALS 2nd Thursday and 4th Wednesday every month

• New Bern, Morehead FRIENDS/PALS Quarterly on the 4th Tuesday of the month.

• Raleigh FRIENDS/PALS Dinner Group 1st Thursday every month at 6:30 pm; Ladies PALS/fRIENDS Support Dinner Group, 3rd Friday every month at 6:30 pm

• Raleigh Triangle FRIENDS Every Monday at 6:30 pm ; PALS Support Group 2nd Friday every month

• Wilmington FRIENDS Support Group 3rd Thursday every month; PALS Support Group 1st Wednesday every month

• Winston-Salem PALS/FRIENDS 2nd Friday every month

Meeting Dates as reported to NCLAP on 2/16/2012

Resources

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