JLAP provides confidentiality for legal professionals seeking help

Bentley McNair

Throughout the course of lawyers’ careers, it is likely that they will find themselves or someone they know facing some sort of mental health or addiction issue. Statistically, attorneys experience higher levels of these problems than the general population. In a recent study, approximately 21 percent of attorneys reported problematic drinking behavior and 45 percent of attorneys self-reported experiencing depression at some point in their careers. Of that number, a staggering 11.5 percent of attorneys reported having suicidal thoughts at some point in their careers.

Despite the high rates of substance use, alcohol problems and depression, relatively few attorneys reported seeking help. A major barrier to getting help is often not a matter of resources, but rather the stigma surrounding mental health and substance abuse issues and concerns about confidentiality. A high level of trust is placed in attorneys’ thinking and judgment; even a perceived impairment can raise concerns about others’ trust in a lawyer’s abilities, including clients, employers and colleagues. Nevertheless, ignoring issues of substance abuse, stress and mental illness is not a viable solution to avoiding this stigma.

Due to the sensitive nature of addiction and mental health issues, attorneys and judges who themselves need help — or who want to assist a colleague who might need help — are often reluctant to seek that help. Recognizing this concern, the Indiana Supreme Court established the Judges and Lawyers Assistance Program under Rule 31 of the Indiana Rules on Admission to the Bar and Discipline of Attorneys as an autonomous program, located separately from the administrative offices of the Supreme Court. Section 9 of Admission and Discipline Rule 31 specifically addresses the confidentiality requirements of JLAP, providing that “[a]ll information, including records obtained by the Committee in the performance of its duty under these rules and as delegated by the Supreme Court of Indiana, shall be confidential” subject to certain limited exceptions.

In addition, Rule of Professional Conduct 8.3(d) explicitly provides that the relationship between an attorney or judge acting on behalf of JLAP and an individual seeking assistance through JLAP shall be considered one of attorney and client, and the same rules of confidentiality and privilege apply. Thus, an individual who violates the confidentiality requirements of the JLAP program is subject to disciplinary proceedings the same as if the individual had violated the confidentiality of a legal client. Information provided to JLAP cannot be disclosed to the individual’s employer, a court, clients or another agency, such as the Disciplinary Commission or the Board of Law Examiners.

Less than 10 percent of JLAP cases are formal referrals from sources such as the Board of Law Examiners, Disciplinary Commission, and the Commission on Judicial Qualifications. The remaining percentage are completely confidential self-referrals or calls made by concerned individuals seeking help for a friend or colleague.

There are very limited circumstances under which JLAP may be permitted or required to disclose information from a client. Generally, disclosure of client information is only permitted when the client has provided a written waiver, and disclosure is limited to the scope of the waiver. For example, a JLAP client may want to have information disclosed to demonstrate his or her compliance with a treatment program. An individual from another agency, an employer or a court cannot contact JLAP to request information about a client, and JLAP will not disclose any client information without a written waiver signed by the client.

In addition, if an individual calls JLAP because they are concerned about a colleague, the caller’s identity will not be disclosed without the caller’s permission. Even if the information provided to JLAP indicates that the attorney, judge or law student has violated a rule of professional conduct or committed a crime, JLAP may not disclose this information to the BLE, the Disciplinary Commission or law enforcement. However, JLAP personnel may be required under law to disclose information shared by a client if that information concerns imminent harm to the individual or another person.

Despite the formal rules in place prohibiting JLAP staff and volunteers from disclosing information, potential clients may still have practical concerns regarding confidentiality, such as concerns about being seen by a client or colleague while visiting JLAP’s offices. In order to alleviate these concerns, JLAP is located in a separate building away from other Supreme Court agencies. The building houses several other businesses including a bank, restaurant, boutiques, beauty salons and a host of other professional offices. An individual seeking help can come to JLAP without the purpose of their visit being readily apparent.

In an ideal world, getting help for a treatable addiction or mental health issue would not carry such a stigma requiring lawyer assistance programs to put in place these strict confidentiality measures. In a profession where these problems are more prevalent than in the general population, seeking help should be seen as a positive and necessary action to ensure the health of the profession as a whole; individuals should not be frightened by the prospect of someone finding out that they sought out help.

However, until society reaches the point where seeking help for an addiction or mental health issue is viewed the same way as seeking treatment for any other medical condition, JLAP will continue to ensure that client information is kept in the strictest confidence so that lawyers, judges and law students will feel comfortable seeking help for themselves or a colleague in need.•

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• Cassandra Bentley McNair is an Indianapolis attorney and member of the Judges and Lawyers Assistance Program Committee. The opinions expressed are those of the author.