THE NEWSLETTER FOR LEGAL OFFICE MANAGERS
Volume XI / Number 7 JULY 2002
(Reprinted with permission of Ardmore Publishing Company)
The alcoholic partner:
an unpleasant situation
that has to be addressed
Ignore a partner’s alcohol problem at the firm’s peril, mainly the peril of lost clients and charges of malpractice.
Both alcohol and drug abuse are high among attorneys, says ROBERT .1. HENDERSON of RJH Consulting, a law firm practice management company in Jackson Hole, WY. Estimates are that from 15% to 18% of lawyers suffer from abuse problems, compared to 10% of the general population.
Henderson, who is himself an attorney and a former managing partner, points out that with an associate, the issue is easier to deal with, because associates are employees and in most states can be discharged at will.
With a partner, however, dealing with abuse is not easy. And for that reason, firms tend to turn a blind eye to the problem. But for the firm’s safety, it has to he addressed.
CONFRONT THE ISSUE – WITH TACT
When a problem becomes apparent, face it, Henderson says. Confront the partner
But approach the situation as a performance issue, not as an alcohol issue. Say, for example “we have noticed that your billable hours and collections are down. And we’ve had complaints from clients that the work isn’t being done correctly. We want to see improvement in these areas within 60 days.”
That’s enough to get the partner’s attention. Don’t say the firm will take action if there’s no improvement. “The implication is there.”
Then open the door, albeit slightly, to the underlying problem. Don’t be accusatory and say the firm suspects alcohol abuse. To do so automatically puts the person on the defensive. Say instead that “if your performance is due to some problem you have, what can we do to help you?”
Hopefully, the partner will realize that the firm sees the problem, that it is affecting performance, and that “maybe I do need help.”
SET UP A SPY
From that point on, the firm is in a dicey position. It knows the partner is impaired, but it’s keeping that partner on board, even if only for a short time.
The question now is one of keeping clients and guarding against malpractice claims.
Henderson’s advice is literally to assign another partner as a spy. That person watches what the partner
does, keeps notes of any problems that appear in the work, checks to see if deadlines are met and the work is done properly, and generally “makes sure the firm is not placed in jeopardy.”
And if problems show up, the spy has to report them, and the rest of the partnership “has to follow a very short timeline dealing with them.”
What if the 60 days pass with no improvement?
For most firms, the response is to do nothing at all, Henderson says, because they don’t want to face another confrontation.
However, the proper route is to meet again, this time to offer to help the attorney find an assistance program, preferably one set up for attorneys. He cites one firm that even offered to pay for a partner to go to an inpatient treatment program. “That’s expensive,” he says, but firms do offer that.
THE GREAT UNPLEASANTNESS
What if all fails and the problem escalates to costly mistakes and the possibility of malpractice suits?
At that point, the only option is to oust the partner, Henderson says.
But he prepared for difficulty.
While most partnership agreements have a provision that a partner can be expelled under certain circumstances, many require a unanimous vote to do so, and then the chances of expelling a partner “are quite small.”
Other agreements require a percentage vote, but even then, dismissal can be difficult to enforce, because “when push comes to shove, it has to be something pretty serious” for one partner to vote to expel another. That’s particularly true when the person in question is a functioning alcoholic, because the others see the individual as able to perform.
THE NIGHTMARE: MALPRACTICE
Finally, the nightmare. What if the situation sinks to an actual malpractice issue such as a missed filing deadline?
The answer, Henderson says, is to report the possibility of the claim to the malpractice carrier.
But to that he adds a word of caution: Only tell the carrier about the missed deadline. Don’t mention the partner’s alcoholism.
“Don’t conceal it,” he says. Just don’t volunteer it. There’s no requirement to do so.
The danger is that if the carrier finds out that alcohol is involved, it may not cover the incident.
A PROBLEM OF THE TRADE
Alcohol and drug abuse is an issue firms have to watch out for and have to be prepared to deal with, because it’s common among attorneys, Henderson says. The reason is that the work subjects attorneys to fatigue, stress, and depression, is oftentimes drudgery, and carries “pressure to work long hours.”
Firms also have to realize that abuse, particularly alcoholism, is difficult to spot, because people can function while under its influence and therefore conceal the problem.
Often the only clue that surfaces is a comment from a staffer And it will he subtle. No one is going to tell the managing partner that “Attorney A is an alcoholic,” especially if Attorney A is that person’s boss. But someone may well report that “Attorney A isn’t meeting deadlines.”
Many firms, he notes, take steps to stave off the problem. Some allow the attorneys to take off several months after working a certain number of years. Some discourage billing more than a certain number of hours annually. And some even encourage the heavy billers to take time off.
But the natural tendency remains: firms don’t want to deal with it. And to that, Henderson’s response is that anyone who can’t handle unpleasant issues “should not be in a management position.”