Part 1 of a 3-Part Series
Ex-Cleveland Browns quarterback Johnny Manziel has been in the news a lot lately. And none of it has been good. The former Heisman Trophy winner and 2014 first round NFL draft pick was “much watch” sports TV for his prowess on the gridiron. His professional career, which began with such optimism just two seasons ago, appears finished. Now, football seems to be the last thing going on in Manziel’s life, which has taken a perilous turn for the worst.
Manziel’s off-field exploits, which began while he was still in college and have only gathered steam over the past year, have with incredible speed surpassed his athletic accomplishments. His personal misconduct, including multiple arrests and general bad boy behavior, have knocked him from the pedestal he once occupied as “Johnny Football” (TM pending).
In the past year alone, Manziel’s agent dropped him. His marketing firm dropped him. Nike dropped him. The Browns dropped him. His father told ESPN his son is a “druggie” who “needs help” and thinks that jail would be the best place for him. Manziel has literally been kicked off of the front of the sports page and into the tabloids. For Manziel, these are the bad times–and they could get worse as he faces criminal exposure arising from a domestic violence incident.
The point of this series is not to bash Johnny Manziel but to reflect on what his story means for lawyers. Johnny Manziel’s off-field troubles can provide valuable ethics insights to all members of the legal profession–from first year law students to the most veteran members of the bar. Here are some important ethics takeaways ripped from the pages of the Johnny Manziel playbook.
Lesson 1 – Alcohol and Drug Abuse Can Lead to Ethics Problems
One of the root causes of Manziel’s off-field problems stems from untreated alcohol or drug overuse and abuse. Substance abuse is a huge problem in the legal profession.
As we discussed in our February 8, 2016 post (here), and as The New York Times reported (here), “Lawyers struggle with substance abuse, particularly drinking, and with depression and anxiety more commonly than some other professionals, according to a new study conducted by the American Bar Association together with the Hazelden Betty Ford Foundation.” In fact, one in three practicing lawyers are problem drinkers, based on the volume and frequency of alcohol consumed, 28 percent suffer from depression, and 19 percent show symptoms of anxiety, according to the study, which involved 12,825 licensed, employed lawyers in 19 states around the country.
The ABA website has its own page dedicated to the signs of and problems associated with substance abuse. The American Bar Association explains:
While it’s uncertain why lawyers experience alcohol dependence and abuse at a higher rate, it is clear that alcoholism has devastating effects on a lawyer’s career and personal life.
As we previously reported, attorney alcohol and substance abuse often go hand-in-hand with misconduct that leads to professional discipline. Indeed, the root cause underlying many violations of the Rules of Professional Conduct is alcoholism or substance abuse.
In an article published in the February 2016 edition of The Bencher, attorney John Ratnaswamy noted that 27% of attorneys disciplined in 2014 in Illinois had at least one substance abuse or mental impairment issue. Other sources (although somewhat dated) suggest a higher correlation between substance abuse and discipline. In California, for example, alcoholism and other chemical dependency are estimated to be a factor in at least 30 to 40 percent of disciplinary cases. See Gronke, The State Assembly OKs Bar-Funded Rehab for Lawyers, L.A. Times, June 22, 2001, at B8. Other reports state substance abuse may be a factor in as many as 50 to 75 percent of all cases coming before other state bar disciplinary boards. See Thompson, Minet Quality Assurance Review, Effective Management of Risk in the Legal Profession (Spring 1994); Cocaine Blues, 72 ABA J. 25 (1986).
The Problems Start In Law School
Johnny Football’s apparent substance abuse problems manifest while he was still playing at Texas A&M. For many lawyers too, problems of alcohol and drug abuse starts in school. Take the following from the ABA’s 2014 Survey of Law Student Well-Being:
Stress, depression, anxiety, chemical dependency, substance abuse, and other mental health conditions and impairments among law students are problems that continue to spark a national dialogue among faculty, administrators, and students. While students enter law school suffering from clinical stress and depression at a rate that mirrors the national average, the rate sharply increases during the first year of law school. Through the duration of their legal education, the rates of law students grappling with substance abuse and mental health problems increase dramatically. If unrecognized and untreated, these issues can carry into their professional careers.
Consider the following data from the 2014 Survey of Law Student Well-Being:
– 89.6% of respondents have had a drink of alcohol in the last 30 days.
– 21.6% reported binge drinking at least twice in the past two weeks.
– 20.4% have thought seriously about suicide sometime in their life.
– 6.3% have thought seriously about suicide in the last 12 months.
– 17.4% of respondents screened positive for depression with 20% indicating that they had been diagnosed with depression at some time in their life.
– Roughly one-sixth of those with a depression diagnosis had received the diagnosis since starting law school.
The Problems Continue After School
Johnny Football’s problems with substance abuse followed him into the NFL. The same holds true for lawyers. According to the ABA/Hazelden study, being in the early stages of one’s legal career is strongly correlated with a high risk of developing an alcohol use disorder. Working from the assumption that a majority of new attorneys will be under the age of 40, that conclusion is further supported by the fact that the highest rates of problematic drinking were present among attorneys under the age of 30 (32.3%), followed by attorneys aged 31 to 40 (26.1%), with declining rates reported thereafter.
Ethics and Illegal Conduct
The ethics rules are not limited to conducted committed while practicing law. Personal conduct–or rather misconduct–is also considered a matter of character and thus bar counsel care when an attorney is convicted of a crime. Some disciplinary authorities, including the USPTO’s Office of Enrollment and Discipline (OED), require attorneys to self-report any convictions of any crime–including misdemeanor offenses such as DUI/DWI. See 37 C.F.R. Section 11.25(a). Other jurisdictions only require the lawyer to self-report convictions where the crime is one of “moral turpitude.”
For misdemeanor drug or alcohol convictions, reporting requirements vary by jurisdiction. While bar counsel may not necessarily seek to impose professional discipline arising from such convictions, especially for a first offender, the more convictions for substance-related misconduct, the more likely it is that the lawyer will face some level of professional discipline. (See, for example, the report here).
For felony drug or alcohol convictions, the matter is much more serious. Any felony conviction must be reported to an attorney’s state bar. The USPTO, as well as most states, consider felony convictions so serious that such convictions typically result in an automatic–and usually immediate or very fast–temporary suspension of the lawyer’s law license. See, e.g., 37 C.F.R. Section 11.25(a) (imposing interim suspension for felony conviction). The idea behind this rule is that a felony conviction is considered so serious that the convicted lawyer must be removed from the bar immediately, if only temporarily, to protect the public until formal disciplinary proceedings are completed.
Substance Abuse Adversely Affecting Lawyer’s Performance
It is not just the illegality of conduct committed under the influence that can cause ethics problems. For Manziel, his off-the-field problems were an embarrassment to his employer as well as a distraction to his team. Most lawyers will never come close to the level of public scrutiny as a Johnny Manziel. Nonetheless, that does not mean that counsel’s off-the-“field” behavior will be ignored. Disciplinary counsel police the behavior of lawyers regardless of whether that behavior arises in the course of providing professional services. And even if a lawyer’s substance abuse or use does not result in criminal sanctions, that does not mean it will not result in violations of the substantive rules of ethics.
For disciplinary counsel, one of their primary missions is to protect the public. Depending upon the seriousness of the lawyer’s addiction, as well as age and other factors, it is not a far stretch to find that substance abuse can contribute to substantive deficiencies in the addicted lawyer’s legal services.
There are, of course, those professionals–including doctors and lawyers–who are considered “high functioning” addicts. They are able, at least for a period of time, to continue to abuse drugs or alcohol without the addiction interfering with job performance. (See here). As one article posits, “Personality traits such as perfectionism, overachiever tendencies and a workaholic nature may help high-functioning alcoholics succeed professionally despite their disease.”
But the longer the addictive behavior persists without treatment, the more likely it is that even the highest functioning professional will begin to slip in their on-the-job performance. Or their overall health may decline, cutting short their abilities. For the addicted lawyer, this may mean, for example, increased absenteeism, missing meetings and deadlines, and an overall reduction in work quality and diligence. The addicted lawyer poses a greater risk for violating his ethical duties to clients, such as the duty of competence and diligence. If the addiction gets really bad, the lawyer may find themselves mishandling or even misappropriating client funds–violating their fiduciary duties to their clients and often leading to the most serious of penalties: disbarment.
Help Exists – But You Need To Ask
Manziel’s family has sought to get him treatment, but to no avail, according to his father. For lawyers suffering from addiction, there is help too. In addition to private treatment facilities, many state bars offer lawyer assistance programs (LAPs), which commonly work with and provide a wide variety of services for disciplinary authorities. The types of service programs provided for disciplinary counsel include attorney monitoring, contract development, screening, assessments and evaluations, support groups, and 12-step calls.
But lawyer assistance programs are underutilized, according to the LAPs themselves. Lack of awareness of their existence among the members of the bar and of the judiciary are two of their biggest problems. And, of course, if the lawyer does not want to get help, it matters not whether the help exists.
As for the so-called “high functioning” lawyer, one addiction specialist notes that they “pay a high price” and “can expect to face heavy consequences for their drinking or drug use. Those problems can include job loss, loss of income, suspension and disbarment, bankruptcy, divorce, health complications, arrests, and other problems.
Johnny Manziel is facing many of these same problems already. He has lost his job, he faces a suspension from the NFL for violating its substance abuse policy (assuming he ever gets a job again in the league), and he is facing criminal charges for domestic violence. In addition, while he may not be on the verge of bankruptcy (yet), he has lost his primary sources of income (football and endorsements). To make matters worse, it was reported yesterday (here) that the remaining “guaranteed” money in Manziel’s rookie contract was voided before the Browns cut him, which means he won’t see any of the remaining $2.173 million that he was supposed to get over the next two years.
One can easily see the parallels between the “high price” Manziel is paying already for his misconduct and the high ethical and personal price that addicted attorneys can face if they do not get appropriate treatment.
Stay Tuned for Part 2 – Ethics and Domestic Violence