Utah Bar Journal

¥ Stephen Owens, Epperson & Rencher, Commission Member, Chair

¥ Gus Chin, Summit County Attorney, President-Elect of Bar - Liaison to Lawyers Helping Lawyers

¥ George Daines, Cache County Attorney, Past President of Bar

¥ Julie Wray, Questar Corporation, Women Lawyers of Utah

¥ Leslie Francis, U of U College of Law

¥ Felshaw King, King & King, Commission Member

¥ Rob Parkes, Administrative Office of the Courts, Human Resources

¥ John Baldwin, Executive Director of the Bar, Non-Voting Staff Member

The Committee met many times and studied hundreds of documents consisting primarily of submissions from the Utah Lawyers Helping Lawyers (LHL) Program and proposals from various Employee Assistance Programs (EAPs) that had been requested from the Bar.

The Committee invited current LHL Committee Chair Roger Cutler to attend one of its meetings and to make a presentation and answer questions. The committee unanimously praised Roger and his committee and director Rich Uday for all of the meaningful work they have done over the years.

At the risk of oversimplifying, a little background is in order. Approximately three years ago, the Bar Commission approved $120,000 each year as a separate line item of the Bar budget to finance Lawyers Helping Lawyers (LHL), with approximately $20,000 of that effectively paid back to the Bar by its endorsed legal malpractice insurance broker, Marsh. The plan was for there to be an evaluation of LHL at the end of three years to determine whether the Bar should continue the present model or move in a different direction to help lawyers in crisis.

Nothing in this review should be viewed as criticism of LHL or an effort to devalue the significant work by the LHL Director and its Committee over the last three years, and for many years before that. The desire of this Committee has been to evaluate LHL and to consider other proposals and models to try to reach more lawyers in a more effective and efficient way.

By most estimates reported to the Committee, 10 - 15% of lawyers are in crisis, yet only a small number are being helped by the Bar. The LHL 2004 statistical breakdown showed 10 contacts receiving a small amount of help, 27 receiving a moderate amount of help, and 17 receiving more significant help. Assuming 6,500 active lawyers in Utah, these 54 contacts represent .83% of Utah lawyers when, applying the 10 - 15% figure, between 650 - 975 lawyers need assistance.

ISSUES ADDRESSED
During the Committee's meetings, the following issues were discussed:

¥ Attorneys can be proud, arrogant, and skeptical of seeking help.

¥ Would an attorney in crisis more likely call a peer-based program or a mental health professional-based program?

¥ Is state-wide assistance provided?

¥ Is complete confidentiality guaranteed? The current LHL situation offers limited confidentiality for disciplinary cases only. It is our understanding that LHL records and staff could be subpoenaed in other civil or criminal cases, including a legal malpractice case.

¥ Would an EAP constitute something like a union benefit when most attorneys can pay or are insured for their own mental health care?

¥ The LHL Committee does not want to provide practice management or direct case assistance to lawyers in crisis.

¥ If an EAP model is adopted, should LHL serve "under" the EAP or as a separate entity to provide peer-based support?

¥ Although LHL is quite separated from the Bar, are lawyers still hesitant to approach LHL because of a perceived connection to the Bar?

¥ All agreed that LHL had done a good job of reaching out to troubled lawyers, but questioned whether we are getting the most efficient return on our investment of resources or if our model is broken.

¥ If we were to stop the Bar's financial support of LHL, would we be losing expertise and the progress that has been made in the last three years and potentially offend and demoralize those who have worked so hard in the past on these issues?

¥ The Administrative Office of the Court contracts with a company on a "pay for as you go" contract. The multi-disciplinary team that includes a physician, clinical social worker, psychologist, and nurse practitioner. The company provides initial phone screening for inquiries and matches client needs to the appropriate clinician. Appointments are scheduled within five days (excluding emergency care).

¥ Does LHL have the professional expertise to provide the needed service?

¥ The State Bar of California offers both a short-term counseling and peer-based recovery program, which the committee generally liked.

¥ Most lawyers are probably covered by health insurance that may cover mental health visits at least in part. (Most plans have a 50% payment level for contracted professionals.) Lawyers may be hesitant to use their health insurance for mental health care for fear that their employers may learn about it.

¥ One question that was asked of each committee member was, "Assuming that you are in crisis, would you be more likely to contact a mental health professional or an attorney peer for help?" Each of the committee members stated that he or she would be more inclined to call a mental health professional.

¥ Regardless of the Bar's decision, committee members wanted the LHL or similar committee to continue to function, to meet together, to sponsor CLE, and to provide support to lawyers seeking help. There remains an important role for peer support.

¥ It is clear that we are not reaching all of the troubled lawyers that the Bar should be reaching.

¥ If LHL's funding is taken away, will LHL be able to function or do we risk losing a group of lawyers who need help because there is not a paid director for the program?

¥ Should LHL be judged only on member usage? It may be that LHL' outreach efforts are helping lawyers who do not personally contact LHL.

COMMISSION VOTE
After great study and deliberation, six of the seven voting members of the subcommittee felt that changes need to be made in the Bar' Lawyer Assistance Program to try to reach more individuals. These recommendations were adopted by a 10-2 vote of the Bar Commission. The following changes are now being implemented:

1. The Bar will contract with an employee assistance program guaranteeing complete confidentiality and free, statewide, one-on-one in person counseling with at least a Master's Degree level professional.

2. We will have a telephone help line that is covered 24 hours a day by a mental health professional.

3. Under the auspices of the EAP, a peer counseling, outreach, and education program should continue through Lawyers Helping Lawyers.

4. The Bar will set up a formal diversion or alternative discipline program for some disciplinary issues, which will require new rules and a petition to the Utah Supreme Court. This will apply for certain lawyers in crisis in lieu of disciplinary actions. The State of Utah currently has a program for healthcare providers that may provide some guidance. California's State Bar also runs such a program.

5. The Bar will not run the EAP and will only receive completely anonymous reports from the EAP.

We appreciate your support of this experiment of sorts. Our only goal is to help as many lawyers as possible with the available resources. A majority of the Commission felt that these changes would provide a more effective approach. The subcommittee did not recommend that the amount of money being spent on our Lawyers Assistance Program be reduced or increased.

You will be hearing more about this as these recommendations are implemented. I hope this is a helpful overview of these developments. Please contact me at sowens@erlawoffice.com or (801) 983-9800 if you have any thoughts on these issues.