HOW TO IDENTIFY AND DEAL WITH CLIENTS’
MENTAL HEALTH/ILLNESS ISSUES
ALLAN K. DUBOIS
Law Office of Allan K. DuBois, P.C.
1455 Frost Bank Tower
100 W. Houston Street
San Antonio, Texas 78205
(210) 227-3106
ANN FOSTER
Texas Lawyers’ Assistance Program
State Bar of Texas
1414 Colorado
Austin, Texas 78701
(512) 427-1463
[email protected]
State Bar of Texas
25 ANNUAL ADVANCED CONSUMER BANKRUPTCY COURSE
September 17-18, 2009
Houston
th
CHAPTER 18
ALLAN K. DUBOIS
Law Office of Allan K. DuBois, P.C.
1455 Frost Bank tower
100 W. Houston Street
San Antonio, Texas 78205
210-227-3106
Fax: 210-227-1290
[email protected]
BIOGRAPHICAL INFORMATION
EDUCATION
B.A. and J.D., the University of Texas
PROFESSIONAL ACTIVITIES
State Bar of Texas, Board of Directors; Director for District 10
Immediate Past President of San Antonio Bar Association
Past Chairperson and current Board Liaison Member, Texas Lawyers’ Assistance Program Committee
Director, Lawyers Concerned for Lawyers (LCL)
Certified Attorney Monitor for the Board of Law Examiners
Sustaining Life Fellow, Texas Bar Foundation
Trustee, San Antonio Bar Foundation
Board Member, Community Justice Program
College of the State Bar
Fellow, International Association of Defense Counsel
Task Force on Alternative Lawyer Discipline (2005-2006)
Lawyers Mental Health Task Force (2007-2008)
District 10 Grievance Committee Professional Enhancement Panel (1996-2002)
PUBLICATIONS, ACADEMIC APPOINTMENTS & HONORS
Ralph Mock Award (LCL Service)
President, San Antonio Council on Alcohol and Drug Abuse
Ann D. Foster
Licensing
Licensed by Supreme Court of Texas, 1985
Licensed by Texas Board of Examiners of Professional Counselors, LPC-Intern, 2009
Education
BA, Smith College, Northampton, Massachusetts, 1979
JD, University of Texas School of Law, Austin, Texas, 1985
MAC (Masters in Counseling), St. Edward’s University, Austin, Texas, 2005
Mediation Basic Course, Dispute Resolution Center, Austin, Texas, 2007
Work Experience
1985-1997, practiced law in Houston, Galveston and Austin, focusing on litigation in a
variety of civil, criminal and administrative contexts
1997-1999, Assistant Director, Texas Lawyers’ Assistance Program, Professionalism
Enhancement Program and Mentor Program
1999-present, Director, Texas Lawyers’ Assistance Program and State Bar of Texas
Employee Assistance Program
Related Activities
Advisory Member/Commissioner, American Bar Association Commission on Lawyer
Assistance Programs, 2001-2003
Commissioner, American Bar Association Commission on Lawyer Assistance Programs,
2003-2006
Volunteer Member, American Bar Association Commission on Lawyer Assistance
Programs Diversity Outreach, Judicial Initiatives, Law School Outreach and Life
Balance Committees, 2006-present
Advisory Member, American Bar Association Standing Committee on Substance Abuse,
2009-2010
TLAP/adfbio09.doc
How to Identify and Deal With Clients’ Mental Health/Illness Issues
Chapter 18
established the Task Force on Lawyer Mental Health,
after writing her column “Outside Your Comfort Zone”
in the July 2006 Bar Journal (attached). The Task Force
report regarding mental health disorders observed:
HOW TO IDENTIFY AND DEAL
WITH CLIENTS’ MENTAL
HEALTH/ILLNESS
ISSUES
Major depression is a serious medical illness
affecting 9.9 million American adults, or
approximately 5 percent of the adult
population in a given year. Studies have
shown that lawyers are at significantly higher
risk for developing the illness of depression.
Unlike normal emotional experiences of
sadness, loss, or passing mood states major
depression is persistent and can significantly
interfere with an individual’s energy level,
memory, and ability to focus and think clearly.
It affects behavior, mood, activity level, and
physical health.
All ethnic, racial and
socioeconomic groups suffer from depression.
An episode of major depression can last
anywhere from six months to a year and if left
untreated, the episodes tend to recur and can
lead to suicide.
“A lawyer is a representative of clients, an officer of
the legal system and a public citizen having special
responsibility for the quality of justice. Lawyers, as
guardians of the law, play a vital role in the
preservation of society.” From the Texas Disciplinary
Rules of Professional Conduct, Preamble: A Lawyer’s
Responsibilities
It is a difficult challenge to represent a client who is
operating under a cloud of fear, anxiety, and
apprehension, and immeasurably more difficult by the
existence of substance abuse and/or depression. We
require accurate histories, recollection of important facts
in context, and the client’s full capacity to participate
meaningfully in discovery and proceedings before the
court. “Mental illness” obstacles may seem to be
insurmountable, in a process which requires counsel to
discharge responsibilities with truthfulness and accuracy.
At times, practical and ethical challenges may reach epic
proportions affecting both lawyer and client, but help is
available.
The Texas Lawyers Creed, a “mandate for
professionalism in the practice of law” defines counsel’s
owed duties to client, other lawyers, and the Court. Our
responsibility to the legal system is to “assure that all
persons have access to competent representation
regardless of wealth or position in life.” To clients, we
owe the duty of our “allegiance, learning, skill and
industry”; employing “all appropriate means to protect
and advance the client’s legitimate rights, claims and
objectives.” The “impaired” client (or lawyer) will pose
obstacles, intentional or otherwise, which interfere with
the lawyer’s duties to opposing counsel of candor and
cooperation; and impede the discharge of similar
obligations to the Court. Enjoying the benefits of wise
counsel in planning ethical strategy, assessing the merits
of settlement proposals, or effective advocacy in
contested hearings or trial, cannot be accomplished
effectively by one who is “mentally impaired”.
Disciplinary Rule of Professional Conduct 1.02(g)
“Scope and Objectives of Representation” and Rule
1.05c(4) “Confidentiality of Information” may require
disclosure of a client’s mental illness in order to seek
appropriate representation or protective orders.
Frequently, mental “impairment” is due to drug and/or
alcohol abuse, sometimes where the depressed or
mentally ill client may be harmfully “self-medicating”.
Thoughts of “ending the pain” may be entertained,
sometimes with the intention to act.
In 2007, Texas Bar President Martha Dickie
Studies have repeatedly shown that there is an increased
risk for developing depression when there is a family
history of this illness. This suggests a genetic
predisposition for depressive disorders. Life events, such
as the death of a loved one, a major loss or change,
chronic stress, or alcohol and drug abuse may trigger
episodes of depression. Some illnesses such as heart
disease and cancer and some medications may also
trigger depressive episodes. However, it is also
important to note that many depressive episodes occur
spontaneously and do not appear to be linked to a life
crisis, physical illness, or other risk factors.
Although major depression can be a devastating
illness, it is highly treatable. Between 80 and 90 percent
of those suffering from serious depression can be
effectively treated and return to their normal daily
activities and feelings. Many types of treatment are
available. The treatment chosen depends on the
individual, the severity and the pattern of that person’s
illness.
The Task Force recommended positive education
and awareness strategies for Texas lawyers after
observing from existing studies:
•
•
1
Out of 105 professions studied by John
Hopkins University, lawyers topped the list in
incidents of major depression.
Those who suffer from perfectionism are
driven by an intense need to avoid failure.
Nothing seems quite good enough, and they
are unable to derive satisfaction from what
ordinarily might be considered even superior
How to Identify and Deal With Clients’ Mental Health/Illness Issues
•
•
performance, and are at a higher risk for
suicide.
Depression is involved in more than half of all
attempted suicides.
Estimates from around the country indicate
that the incidence of substance abuse among
lawyers is higher than the national average,
and substance abusers are 10 times more likely
to commit suicide.
Chapter 18
explained the work of the relatively new Grievance
Referral Program of the Texas Chief Disciplinary
Counsel’s Office. It is designed to address other
personal/professional issues, frequently seen, but not
usually addressed, arising in a minor misconduct
disciplinary case. These may sometimes include “mental
health issues impacting on a lawyer’s ability to practice
law such as depression or a substance use disorder.”
Under strict criteria for eligibility, this (diversion type)
Program has the dual goal the protection of current and
future clients from being harmed by a repeat of similar
behavior on the lawyer’s part, while assisting the
individual attorney. Ms. Long furnished instructive
information regarding two main types of depression:
dysrythmia and major depressive disorder; bipolar
disorder and signs of the clinically depressed lawyer, as
well as a list of common signs and symptoms of chemical
dependency. These additional education “resources” are
included as attachments. In the past decade, both suicide
prevention awareness training for attorneys, and
recognition of the symptoms in others has expanded as
part of the mission of the Texas Lawyers Assistance
Program. Many articles are published on the State Bar of
Texas/TLAP website. Long ago, Don Jones (currently
Executive Director of Texas Lawyers Care) and the late,
beloved Mike Crowley (the “father” of Texas TLAP and
former Chair of the State Bar Board) pointed out these
suicide “myths” and facts:
Ms. Dickie’s mental health initiative culminated in the
production of the highly successful video “Practicing
From the Shadows.” We can view it at any time,
available online through the State Bar of Texas website.
The Texas Lawyers Assistance Program (TLAP) web
page also has a free download of the (2009) ABA/CLE
ethics course “What Lawyers Need to Know About
Suicide During a Recession: Prevention Identify and Law
Firm Responsibility.”
In the twenty years since its inception, the Texas
Lawyers Assistance Program has addressed substance
abuse/depression issues in many publications, through
articles in the Texas Bar Journal and in seminars
primarily addressed to such issues relating to lawyers,
and handouts for caring persons who seek to help those
“afflicted”. At the end of this paper are useful lists
addressed to identify dependency or clinical depression
in clients and colleagues. Most lawyers begin as
relatively idealistic professionals who genuinely want to
help others. Sometimes we become alienated from these
original principles and goals. Although still concerned
about client needs, we may feel a lack of ultimate control
or influence, and become overwhelmed by the workload
associated with discharging professional responsibilities.
When the stresses of the legal profession begin to take a
toll on their lives, unfortunately, lawyers are notoriously
reluctant to seek help for personal issues, perhaps
concerned about a “stigma” or damage to reputation.
Isolation, however, is conducive to professional
dereliction of duty; even depression and suicide. To
effectively represent others, we must be “mentally well.”
•
•
•
•
•
In a recent presentation, “Lawyer Impairments:
Identification and Rehabilitation Efforts”, by Christine
Long, J.D. L.C.S.W. (Special Programs Coordinator
State Bar of Texas Office of Chief Disciplinary Counsel),
addressed the Texas Disciplinary Rule of Professional
Conduct 8.03(c) “Reporting Professional Misconduct”.
It requires reporting an attorney who is “impaired by
chemical dependency on alcohol or drugs or by mental
illness”. The duty can be discharged by making such a
report to an approved peer assistance program rather than
an appropriate disciplinary authority. This referral may
be confidentially made to TLAP, an established “peer
assistance program.” It is also a protected disclosure
under the Texas Health & Safety Code. Ms. Long also
•
“People who talk about suicide are just seeking
attention and won’t really try to kill themselves.”
(FALSE)
“Talking about suicide and a person’s suicide
feelings will only encourage that person to commit
suicide.” (FALSE)
Approximately 75% of those who commit suicide
talk about it or display other warning signs before
they attempt suicide. (TRUE)
The majority of suicidal people is not intent upon
dying, but currently simply sees no other viable
option. (TRUE)
There are often “warning signs” they give as
desperate calls for help before they take this final
option. (TRUE)
Frankly talking about a person’s suicide feelings
can give them a sense of connection and hope, and
shows that someone cares and finds them important
enough to listen to and try to help. (TRUE)
It is a common refrain after a suicide, for friends and
colleagues to say “... if I had only known.” Any list of
“warning signs” may be incomplete or over-inclusive, as
individuals may display none or few, but still be at risk
for committing suicide. Others may display warning
signs, but have no intent. Basic “risk factors” and
“warning signs” to tell if someone is “suicidal” are listed
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How to Identify and Deal With Clients’ Mental Health/Illness Issues
in attachments to better inform you how to identify the
need to offer a helping hand.
The essence of a decision to become involved in a
potential life-saving intervention, bears keeping in mind
some very simple caveats:
drug dependence and mental illness are as critical to the
practitioner as they are to our clients. We both are
entitled to each other’s best efforts to succeed. In Texas,
we are blessed with nationally recognized resources,
available from Texas Lawyers Assistance Program. We
have trained professionals available to discuss and
available resources for intervention, treatment, and
recovery (to both lawyer and client). Pick up the phone
(1-800-343-TLAP Confidential help for members with
mental health and substance use concerns); or visit the
State Bar of Texas - TLAP Website, at any time “24/7"
(www.texasbar.com/tlap). You will be well received.
REMEMBER: depression is a treatable recognized
mental illness, and suicide is often preventable.
Also, every threat of suicide is a call for help.”
TAKE IT SERIOUSLY! After taking the issue
seriously and deciding to reach out, specifically:
•
•
•
•
•
Chapter 18
LISTEN, LISTEN, LISTEN. So often, suicidal
people feel isolated, unconnected and unimportant.
It is crucial to be as nonjudgmental and empathetic
as you can.
If they are feeling suicidal, ask them if they have a
plan. Find out if they have the means to attempt
suicide and whether they have thought about when
they would make the attempt.
If they don’t have a plan, there may not be an
immediate crisis, but the person nevertheless has a
serious problem in need of professional assistance.
Encourage them to seek professional help, and even
offer to help them make that first call.
If they do have a plan but are not threatening
immediate action, get them to commit to you not to
take any suicidal action until you visit about the
matter; again encourage them to seek professional
help; again offer to help them make that first call.
If they have a plan and are threatening immediate
action, do not leave them alone. Take whatever
action is necessary to get them into professional
hands. If you have to, take them to the emergency
room of the closest hospital, because immediate
medical intervention may be critical.
It is not productive to argue with a desperate friend or
colleague about the “right or wrong” of suicide. Avoid
platitudes like “... you have so much to live for”; or “... it
will all be better in the morning”. Likewise, avoid
discounting their problems with statements like “...oh,
that doesn’t seem so bad...”. Finally, do not be sworn to
secrecy - at least when it comes to calling in professional
help. The most important thing to remember is to do
something affirmative, and not just look the other way,
hoping someone else may help. In its professional
outreach, the Texas Lawyers Assistance Program website
provides multiple articles and studies under the general
topic link “Suicide,” which are equally applicable to
client or lawyer, with solid ideas in how you can help.
(www.texasbar.com/tlap)
In a successful practice of law, it is absolutely
essential that we take care of ourselves (in mind, body
and spirit), before we can effectively help others.
Recognizing and addressing issues such as alcohol or
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How to Identify and Deal With Clients’ Mental Health/Illness Issues
Chapter 18
APPENDIX
Attached Articles
1. Outside Your Comfort Zone, by Martha S. Dickie, Texas Bar Journal
2. Are You Witnessing Clinical Depression?
3. The Clinically Depressed Lawyer
4. Are you Witnessing Chemical Dependency?
5. Is There A Substance Dependent or Addicted Lawyer in Your Life? Ann Foster, Director, TLAP
6. Two Faces of Depression
7. Depression - Lawyers are at high risk to Depression
8. Some Signs and Symptoms of Chemical Dependency (Chart)
9. List of Suicide Risk Conditions
10. What To Do when a Colleague is Depressed.
ADDITIONAL RESOURCES
The Texas Lawyers Assistance Program (TLAP): What It is And How It Works www.texasbar.com/tlap
Included Topics and Links:
More About TLAP, Services and Support
Self Assessments - online screening tools
Cessation of Practice
FAQ’s
Financial Support
Interesting Case Law
Judges
Law Firms
Law Students
Links
Local Bars and Other Resources
Monitors and Monitoring
Mood Disorders, Depression, and Recovery
Personal Perspectives - 1st Person Stories
Practice Assistance
Reporting Misconduct: Disability and Grievance Issues
Stress Relief and Prevention
Substance Abuse, Dependency and Recovery
Suicide
TLAP Volunteer Information
ARTICLES
Preventing Suicide, “A Challenge to the Legal Profession” by Skip Simpson and Paul Quinnett, GP Solo (Oct/Nov
2008)
Recovery From Depression, and Life, Law and the Pursuit of Happiness by John McShane 8350 N. Central
Expressway, Suite 1200, Dallas, Texas 78206-1600 214-356-9007 [email protected]
Depression Among Attorneys Rises as Economy Sinks; by Karen Sloan, The National Law Journal (May 5, 2009)
High-Functioning Alcoholics: Lawyers Are Not Above the Bar, by Sara Allen Benton TheCompleteLawyer.com
(4/17/2009)
When A Lawyer Becomes Mentally Impaired, By Peter H. Geraghty, Director ABA Ethics www.abanet.org (June
2006)
BOOK
The Suicide Lawyers (Exposing Lethal Secrets) by C.C. Risenhoover (2004)
[Dedicated to people who “if they had only known” might have been able to prevent a loved one from committing
suicide, and to people who, hopefully, “by knowing” will be able to prevent such a tragedy in their lives.]
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How to Identify and Deal With Clients’ Mental Health/Illness Issues
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Chapter 18
Has his behavior changed suddenly so that
he is restless and more irritable? Does he
want to be alone most of the time? Has he
started
missing
work,
deadlines,
appointments or dropped hobbies or
activities?
Are you witnessing Clinical Depression?
The onset of an episode of clinical
depression may not be obvious at first if the
onset is gradual or mild. The symptoms of
depression characteristically represent a
significant change from how a person
functioned before the illness. These
symptoms include:
Has he talked about death, suicide or
harming himself?
• Persistent sad or irritable mood;
• Pronounced changes in sleep, appetite,
and energy;
• Difficulty thinking, analyzing, concentrating,
and remembering;
• Physical slowing or agitation;
• Lack of interest in or pleasure from
activities that were once enjoyed;
•
Feelings
of
guilt,
worthlessness,
hopelessness, and emptiness;
• Recurrent thoughts of death or suicide;
• Persistent physical symptoms that do not
respond to treatment, such as headaches,
digestive disorders, and chronic pain.
Does he express feelings of sadness or
emptiness? Hopelessness, pessimism or
guilt? Helplessness or worthlessness?
Does he seem unable to make decisions?
Is he unable to concentrate and remember
things? Has he lost interest or pleasure in
ordinary activities – like work, sports,
hobbies, social activities? Does he appear to
have more problems at work and at home?
Does he complain of loss of energy and
drive – so that he seems “slowed down?”
Does he have trouble falling asleep, staying
asleep, or getting up? Is he losing or gaining
weight? Does he talk about headaches,
stomach aches, or back aches or chronic
aches and pains in joints and muscles?
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How to Identify and Deal With Clients’ Mental Health/Illness Issues
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How to Identify and Deal With Clients’ Mental Health/Illness Issues
Are you witnessing Chemical
Dependency?
•
•
Family/Social
•
Withdrawal from activities
•
Frequent absences from family life
•
Frequent
arguments;
child/spousal
abuse
•
Family members display codependent
behaviors
•
Sexual problems (impotence, affair)
•
Separation/divorce (initiated by spouse)
•
•
•
•
•
•
Physical
•
Multiple physical complaints
•
Increased use of prescription medicine,
alcohol, drugs
•
Increased accidents, trauma, ER visits,
hospitalizations
•
Frequent visits to physicians, dentists
•
Personal hygiene, dress deteriorate
•
Increased and serious emotional crises
Community
•
Decrease in participation in community
activities
•
Change of friends, acquaintances
•
Drunk and disorderly, PI, DWI
•
Loss of confidence in attorney by
community leaders
•
Change in Involvement with place of
worship
•
Sexual promiscuity
•
Withdrawal and isolation from support
systems
Work/Office
•
Changes in behavior, odd and unusual
behavior
•
Disorganized, inattentive, makes many
mistakes, produces sloppy work product
•
Hostile behavior to staff, clients, court
personnel
•
Inappropriate behavior/moods
•
Overreaction to real/imagined criticism,
resentful, arrogant
•
Frequently sick, absent, unavailable,
undependable
•
Offers excuses but does not correct
behavior
•
Clients begin to complain to associates,
staff, court
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Chapter 18
Decreasing quality of performance
Inappropriate or irrational decision
making
Borrowing money from friends, staff, coworkers
Missed
hearings,
depositions,
appointments
Co-workers and courthouse “gossip”
about changes in behavior
Possible unethical behavior
Malpractice and disciplinary claims
Loss of clients, practice, respect
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Chapter 18
2008-2009 Statistics
Texas Lawyers’ Assistance Program
Peer assistance outreach to 533 lawyers (55% Substance Use Disorders/45% MH Disorders)
Education, coaching and crisis assistance to 224 concerned others
Counseling and referrals for 49 SBOT Employee Assistance Program clients
43 CLE presentations by Staff and Volunteers
Distributed 900 DVDs, “Practicing from the Shadows: Depression and the Legal Profession”
500+ active volunteers
The Average TLAP client:
White male lawyer, 40-60 years old
Alcohol, drug and mental health issues combined
Solo practitioner, self-referral, no health insurance or financial resources and no
available help with law practice when seeking treatment/assistance
2008-2009 special projects and achievements:
Judicial Outreach Initiative: Email outreach and education/presentations offered for all Texas
Judges about how TLAP can help lawyers and judges
Lawyers’ Voices Project: Audio clips on webpage of interviews with Texas lawyers about
what it was like, what happened and what it’s like now
Creation of Houston Lawyers Forum on Depression: A monthly support and educational
meeting. Experience used for development of prototype for peer assistance group
facilitation in other cities
Monitoring support services: For the Board of Law Examiners and Chief Disciplinary
Counsel’s Office
Specialized staff training: Compassion fatigue, depression, substance use disorders, grief
and loss, eating disorders
Staff accomplishments: Compassion Fatigue Educator Certification (Rachel Madorsky);
Travis County Women Lawyers’ Association Public Service Attorney (Cameron Vann);
Extraordinary Women Lawyers in Texas Law (Ann Foster); Leadership/Membership in
SBOT programs: Move Team, Parking Team, Member Benefits Initiative, Employee
Events/Wellness
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