My brother, Doug, was a practicing Oklahoma lawyer. Like any of us, he had enjoyed success in school and work. He had a T-shirt that read, "I'll try anything once ... maybe twice," which summed up his personal philosophy. That credo could be shared by many lawyers. The DNA of an attorney is often uncommon intelligence blended with a need for excitement and risk, and the adrenaline and dopamine rush that comes with it.

It had started in high school, where he was on the debate team – often a training ground for future lawyers. Periodic out-of-town trips allowed him to sneak the occasional drink and cigarette in the hotel room with his teammates. Inevitably, as high school progressed, the partying expanded to include frequent Friday and Saturday nights when his group would pool their money and rent a room at a local hotel. The hospitality suite was open – an early taste of college life.

When he went to a private Texas university on a debate scholarship, his partying expanded. The occasional out-of-town trips in high school blossomed into multi-day tournaments to both coasts in a van led by the team’s broad-minded 20-something-year-old coach. Lots of time was spent sitting around hotel rooms, socializing after rounds, drinking scotch and maybe smoking an occasional joint. My brother had discovered the exhilaration many of us have known (and that is termed, often with admiration, "work hard, play hard”).

Finally, when he failed to show up for a semester final and failed a class (archery for God’s sake), my father summoned him home to go to a local university, especially if he was serious about going to law school, something he had wanted since the sixth grade. He came home, left his drinking for the most part to weekends and pulled his grades up. He was admitted to law school and maintained his regimen of occasional social drinks during the week, leaving more earnest recreation for the weekends. He could function that way.

He did well enough in law school and as a beginning lawyer to land good jobs at respected firms and eventually made partner doing oil and gas title work. All the while, his drinking continued to escalate. Like many seasoned drinkers, my brother drank every night but performed well enough the next day. Again, “work hard, play hard." But like almost every story of a practicing alcoholic, his drinking began to consume more and more of his spare time. Going out after work became a regular ritual, followed by more drinks at home and more drinking on the weekends. He carried a liter bottle of scotch in the trunk of his car like a spare tire, just in case.

He had always been careful about appearances; most lawyers are because our reputations mean so much. Despite his daily struggles with alcohol, Doug was an award-winning Boy Scouts Scoutmaster for many years, and he served on the board of a local high school. He had close and caring friends. And like many of us, he had a servant’s heart, a great sense of humor and could compartmentalize his demons when necessary. We lawyers are not purely good – no one is – but more akin to the biblical David, capable of great wisdom and folly, great deeds and misdeeds.

As his illness progressed, he withdrew from friends if they became aware of his excesses. He began to tell elaborate lies and drop vague dramatic hints about terminal illness. His best friends were a small, close-knit circle of wonderful people who might have known he was drinking too much but, understandably, were protective of him. They loved him as we all do our closest friends and did not want to embarrass him or lose him as a friend after a confrontation. The same, I suppose, could be said of his firm colleagues.

As the years passed, his health deteriorated; he developed high blood pressure in his early 30s, a bleeding ulcer, worsening asthma and other medical issues. His medicines and pills amounted to a small traveling pharmacy; he kept them in a tackle box.

In the latter stages of his illness, our family became more and more suspicious. He slowly withdrew, leaving gatherings early or avoiding them altogether. He became financially reckless and borrowed money from our parents. He gave extravagant gifts to friends and spent large amounts on guns and other expensive hobbies. Our father eventually questioned him directly and called some of his close friends; they shared our concerns. We did not contact his firm for fear of putting his job in jeopardy. The firm never let us know if it had been concerned, but we learned later that a few of his close colleagues were, and a senior partner who had faced the same challenges informally counseled him. They cannot be blamed. It was a different time, and again, he appeared to perform well enough during business hours.

Our family eventually set up an intervention, and he reluctantly agreed to enter treatment. When he came out, we held our breath to see how he would do.

A few weeks later, I got a call from our father at work. My brother had not gone to the office and had not been heard from. He lived alone and had always let Mom and Dad know if he planned to leave town. Dad was worried and decided to check his house. When he arrived, he found the house locked up tight. The door had been nailed shut. Checking the kitchen window, my father saw a large, sloppy stack of pipe tobacco on the table with papers lying around on the floor. He instinctively knew something terrible had happened. To spare the rest of us, my father called his best friend, who lived nearby, and with his help, broke into the house to search for my brother.

My 66-year-old father then walked into Doug’s bedroom and found his 35-year-old son lying on the floor. He had died from a self-inflicted gunshot wound.

We later spoke to a psychiatrist whom my brother had used during treatment. His alcoholism had been fueled by his bipolar disorder. He used alcohol to self-medicate, but drinking had only worsened his condition and deepened his periods of depression.

In the years that have passed, I have seen other examples of the “functioning alcoholic” and have seen the same pattern play out, although, thankfully, usually not with the same tragic conclusion. Lawyers and firms often do not know what to do with the functioning addict or alcoholic. No one benefits, including the clients.

Law firms have generally followed one of three philosophies:

• To generally be sympathetic but choose to leave the impacted lawyer alone, maybe months or even years, thinking they will eventually “self-correct,” or someone else closer – maybe a family member – can, should and will intervene;
• To choose to honor the myth that we lawyers hold especially dear, that we are wholly autonomous independent beings, and out of respect for the troubled lawyer’s dignity, we should leave them alone, even if they may be in the process of self-destruction;
• To fear losing our relationship with a professional colleague (or we may be in a subordinate position to the troubled lawyer) and don’t want to do anything that puts our relationship or position at risk with that person or the firm. At most, we may discreetly advise a senior or managing lawyer or make informal gestures of concern but force nothing until there is a pattern of irrefutable acts endangering others or clients.

These philosophies, as natural and humane as they may seem, not only enable the impacted lawyer but also put clients at risk. The correct path is to rigorously follow Rule 5.1 of the Oklahoma Rules of Professional Conduct, as it outlines a proactive approach that is designed to protect clients but will protect you and your practice group in so doing. It requires lawyers with “managerial authority” in any association of lawyers to “make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.” We are, of course, familiar with systems to docket dates and check conflicts, but maintaining healthy lawyers? Not so much. Because it is hard to do, given privacy issues and our resistance to outside accountability.

One way would be to impose greater supervision over the work of younger lawyers and maintain direct accountability of all lawyers, even the ones with many years of experience. Mentorships are one way. A “wellness and practice committee” would be another. Issues could be discovered earlier, and the lawyer could be directed to treatment before it is too late.

Other rules are germane. Rules 10.1 and 12.1 of the Rules Governing Disciplinary Proceedings create a direct obligation for a lawyer associated with the impacted lawyer to notify the General Counsel’s Office of a lawyer’s incapacity due to “[h]abitual use of alcoholic beverages [author’s note: any mentally or physically disabling substances] ... to any extent which impairs or tends to impair ability to conduct efficiently and properly the affairs undertaken for a client in the practice of law.” Importantly, Rule 12.1 states that any other lawyer should give notice if it appears notice was not given.

Other rules – such as ORPC Rule 5.2, “Responsibility of a Subordinate Lawyer” (not alleviated from responsibility), and Rule 8.3, “Reporting Professional Misconduct” (when certain knowledge) – also create duties that should be considered and that provide accountability.

The best approach would incorporate opportunities for lawyers to seek assistance confidentially, before they hurt themselves or a client and before a mandatory reporting duty is triggered. Perhaps the firm or legal group could set up a “lawyer assistance group” or a single lawyer to whom the troubled lawyer could initially report, safely and confidentially. That committee or contact could then assist the troubled lawyer in finding the next right step, whether it is an appointment with a mental health provider, a referral to Lawyers Helping Lawyers or placement with a rehab facility. The firm should reassure the troubled lawyer, if possible, that they will not be impacted should treatment be successful.

Many years have passed since my brother died. The firm he knew is long gone, and his former partners are either retired or have moved on in some way. I’m sure they dealt with him as best they could at the time, but more should be expected of us now for the sake of the lawyers and, most importantly, the clients. Romantic notions of stubborn self-reliance should be seen for what they are – often harmful to both lawyers and clients.

Another and more personal way to further improve the odds of success with troubled lawyers is to elevate the way we look at our fellow lawyers – see them as not just professional colleagues but also as part of our professional family. Like genuine family members, we would rush to help or assist with a problem. Instead of quietly standing by, we should proactively act on the impulse to intervene in an obviously bad situation.

We should recognize that we are privileged to practice one of the historical professions; like physicians and priests, lawyers are often called to serve people and institutions at the most critical and painful times in their lives. We all share that honor and privilege but also the unique stress and emotional weight that goes with it, an unavoidable and dangerous burden.

We all must do our part to uphold the long black line of the law, for ourselves, for our clients and for our colleagues. We are inextricably bound in this profession, as people with very similar attributes and weaknesses in the same place and time, like a flesh and blood family – like brothers, like sisters.

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WARNING SIGNS OF SUICIDE

The National Institute of Mental Health publishes a list of behaviors that may indicate someone is thinking about suicide. The signs might include:

Talking about:

• Wanting to die
• Great guilt or shame
• Being a burden to others

Feeling:

• Empty, hopeless, trapped or having no reason to live
• Extremely sad, more anxious, agitated or full of rage
• Unbearable emotional or physical pain

Changing behavior, such as:

• Making a plan or researching ways to die
• Withdrawing from friends, saying goodbye, giving away important items or making a will
• Taking dangerous risks, such as driving extremely fast
• Displaying extreme mood swings
• Eating or sleeping more or less
• Using drugs or alcohol more often

If these warning signs apply to you or someone you know, get help as soon as possible, particularly if the behavior is new or has increased recently.

https://www.nimh.nih.gov/health/publications/warning-signs-of-suicide

988 SUICIDE AND CRISIS LIFELINE

According to fcc.gov, every 11 minutes, someone in the United States dies by suicide; suicide is the leading cause of death for those between 10 and 34 years of age.

The 988 Suicide and Crisis Lifeline is a network of mental health centers across the nation assisting those with urgent mental health crises. If you or someone you know is in crisis, you can call or text 9-8-8 to be connected with mental health professionals who are trained to help you overcome these difficult and urgent situations.

For more information, visit fcc.gov/988-suicide-and-crisis-lifeline.

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ABOUT THE AUTHOR

Travis Pickens is a civil litigation and ethics lawyer in private practice in Oklahoma City. From August 2009 to January 2015, he served as ethics counsel for the Oklahoma Bar Association and as an OBA liaison to the Lawyers Helping Lawyers Assistance Program Committee. For many years, he served as an adjunct professor of law practice at the OCU School of Law.