Practical Tips For Evaluating The Addict Client
Phil McCurdy
Law Office of W. Phillip McCurdy, LLC
It has been said that criminal attorneys deal with bad people behaving at their very best whereas family lawyers deal with good people behaving at their very worst. While there resides a certain element of truth in the statement, it grossly oversimplifies the family practitioner’s experience. The more accurate statement is that in family law, clients will exhibit every possible facet of their personality, good and bad, during the progress of their case.
Impaired individuals present special challenges as clients, which challenges cannot be responsibly whitewashed or ignored by their lawyer.Logically, the stress of divorce can drive nearly anyone to drink, but there is a statistically identifiable segment of society that cannot safely seek that particular emotional refuge, yet nonetheless do:
Addiction is a primary, progressive, chronic disease with genetic, psychosocial, and environmental factors influencing its development and manifestations. The disease is often progressive and fatal. It is characterized by impaired control over use of the substance, preoccupation with the substance, use of the substance despite adverse consequences, and distortions in thinking.
Put more simply, “an addiction is the continued repetition of a behavior despite adverse consequences”.
Here are some practical warning signs and tips for evaluating and dealing with the alcoholic, the drug-addict, the gambler, the sex-addict or any other “process disorder” afflicted client. (In this article I have opted to make the hypothetical client male for the sake of convenience, although there is certainly no dearth of impaired female clients.)
1. Your client will minimize or even intentionally mislead you about the extent or existence of his addiction.
- Be wary of stories that don’t make sense. Often the addicted client will concoct incredible tales in explanation of otherwise bizarre behavior or situations. Where feasible, conduct investigation and corroboration of the veracity of such tales. Without being offensive, explain to the client that ultimately a trier of fact may have to swallow this belly-whopper and that without independent verification the client’s credibility will suffer, thereby affecting the overall outcome of the case.
- Don’t hesitate to challenge the story. Marketing considerations aside, practicing family law is not a personality contest. Ultimately, it doesn’t matter if the client befriends you. I explain unflinchingly that, “if you can’t convince me, I can’t convince opposing counsel, the judge or a jury”. More importantly, if you are dealing with an addicted client, the problem will not get better or go away because you ignored it when the problem first presented itself. Remind the client that what he tells you is privileged and that you may be the only person to whom he can tell the unvarnished truth without fear.
2. When confronted about his addiction “problem”, the client will deny or minimize the characterization, even in the face of overwhelming evidence to the contrary.
- Ensure your challenge of the stories does not turn into an accusation or judgment of his character. Always remember that the client did not choose to become an addict. No matter how combative, defiant or even sympathetic the exterior he presents may be, at his core he is suffering from a crippling lack of self-esteem and guilt as a result of his addiction.
- Explain to the client that addiction not an uncommon occurrence in family court and that his case will fare better if the issue is dealt with head on. Make him aware that his spouse is certainly aware and that opposing counsel will not hesitate to use it to his spouse’s advantage. This is particularly true if your client denies accusations that independent evidence would overwhelmingly support. Remind him that if you have suspicions based upon your interaction with him in the office (where at least theoretically he is putting his best foot forward), there will certainly be many others with first hand knowledge or observation who will be available to testify on her behalf.
- Overwhelming experience shows that judges are far less concerned about your client’s feelings than you are, particularly in cases involving custody. If the court feels that your client has an addiction that he is refusing to acknowledge, he becomes a considerably less preferable parent than one who has recognized his problem and taken steps to deal with it appropriately.
3. The addicted client will attempt to divert responsibility for his actions. He will shift the blame to anything except addiction for his current plight.
- Most typically, he will blame his spouse, his parents, his children, opposing counsel, you, the mailman, and anyone or anything else rather than accept the reality that his addiction is the problem.
- The addict will frequently claim that there are other circumstances (usually temporary) causing his problems: that he is depressed, his current financial woes, or “if his spouse would just straighten up, his problems would go away”. I once referred a client to a psychiatrist for evaluation. He excitedly reported back to me that he was relieved he didn’t have to quit drinking because the doctor told him that theoretically a brain tumor could be an alternative cause of his admittedly bizarre behavior. It did not occur to him that his ready acceptance of the possibility of a glioblastoma (a fatal condition), as opposed to embracing abstinence, was probably the best evidence of alcoholism that I could imagine. I’m happy to report that 16 years later he is still alive and sober.
- This is not meant to imply that there are not genuine medical concerns that may be at play; however, most legitimate psychiatric practitioners or counselors will tell you that they cannot accurately diagnose depression, bi-polar disorder or like mental/emotional conditions until after the patient has stopped drinking or using and has put together a prolonged period of abstinence.
4. Once past the initial confrontation, depending on the progression of the addiction, the client may not be able to keep their promises to abstain, no matter how well intentioned.
- Do not set your client up to fail. An alcoholic who is on the verge of delirium tremens (the DT’s) is essentially incapable of resisting his craving to alleviate the symptoms and, even if he successfully abstains, untreated alcohol withdrawal symptoms are medically hazardous and can lead to death. Under those circumstances, expecting your client to remember, much less honor, a promise made in the sterile environment of your office while his skin is crawling, his hands are shaking and he is violently nauseous, is unrealistic if not downright cruel. If you suspect that the client is “over promising” (particularly if he has failed before), it is probably time to suggest a formal evaluation and, if indicated, treatment alternatives.
- Every family law practitioner should keep a list of treatment alternatives at hand and updated. There exists a wealth of very competent treatment centers in Georgia. The Georgia Association of Recovery Residences (GARR) maintains a listing of certified in-patent recovery centers. As for individual counselors, there are three primary levels of certification: Certified Alcohol Drug Counselor I (CADC-I), Certified Alcohol Drug Counselor II (CADC-II) and the Certified Advanced Alcohol Drug Counselor (CAADC). Virtually all treatment centers conduct evaluations for addiction as a prerequisite to treatment.
- Treatment centers and programs range wildly in cost, length of treatment, and approach (faith based vs. secular; medical vs. cognitive-behavioral; in-patient vs. out-patient; group vs. individual; etc.). They also vary in demographics (adolescent, adult, male, female, co-ed, straight, gay/LGBT). I am certain that somewhere in metro Atlanta, there is an A&D counselor whose specialty is evaluating left-handed, Republican, brandy drinkers with red hair, who were adopted at birth by mixed-race, same-sex partners. Your client’s protestations that he can’t find a proper treatment fit will simply not hold water. Always remember that 12-Step and similar programs are free, effective and pervasive. At last count, there were over 1,500 meetings a week held in metro Atlanta alone!
The above is not meant to be in any way exhaustive. None of the suggestions above get the practitioner past the initial stages of the case. Once the “problem” has been identified and evaluated, there remain a myriad of challenges in effectively representing an addict through the balance of the case. In so doing, you will have to balance compassion, support, rigor, honesty and understanding with expectations, strategy, timing and careful presentation. Even if the hypothetical client leaps wholeheartedly into his recovery, the inevitable consequences of his prior behavior are daunting. His ex-spouse and children will not instantly (if ever) re-grant trust eroded by years of mendacity. There will be lapses in his recollection that can only be filled by secondary sources. Discovery will be problematic: documents will be missing and records incomplete. His prior excuses and outright lies will have to be dealt with, shame will color his decisions, his emotions will be fragile and your decisions will be influenced not only by what is legally indicated, but also by what is in the best interest of your client. You will have done him no kindness if you garner the most favorable legal and financial outcome only to have him walk away emotionally destitute with no support structure and no chemical crutch to lean on. Sadly, that is the stuff that suicides are made of.
Addiction is a pervasive sub-facet of family law that presents a unique set of problems not usually anticipated and for which there is little training, save experience. Do not hesitate to lean on that experience. Talk to other practitioners who have experience involving addiction issues, particularly those who may themselves be recovering. Meet with treatment providers and counselors. Generally they are eager to discuss techniques and strategy with those who are potential referral sources for their services.
As a family practitioner, you are in a unique position to be a type of “first-responder” for the client as he deals with the consequences of his addiction in a captive venue where he cannot easily dodge or obfuscate. You will be doing him a grave disservice if you are not prepared to meet the challenge. Proper recognition and evaluation is the first step in effectively representing your client.
1 Approximately 10.5% of the US population. 2012 National Survey on Drug Use and Health (NSDUH).
2 Diagnostic and Statistical Manual of Mental Disorders (1994).
3American Society for Addiction Medicine (2012).
4 I was unable to locate reliable statistical studies of the percentage of divorce cases in which addiction of some sort was the significant contributing factor, but it bears reasoning that the percentage would be at least as that of the general population, if not significantly higher.
5 There are similar certifications for outpatient centers, group therapy and other levels of treatment alternatives.
6 Lawyers are certainly not immune: The American Bar Association (ABA) estimates that 18 to 20 percent of lawyers abuse drugs or alcohol (compared to 8 to 10 percent of the general population). Lawyers also use cocaine at twice the rate of the general population, according to a 1990 study published in the Journal of Law and Psychiatry.
Phil McCurdy is an Atlanta native and the founding member of the Law Office of W. Phillip McCurdy, LLC in Gwinnett County. He has practiced primarily family law since 1987. He is a graduate of the Westminster Schools, Furman University and Emory Law. He lives in Peachtree Corners with his beautiful wife Erica, three lovely children, two disobedient dogs, a loud bird and a prickly hedgehog. He is an avid golfer and lifelong Georgia Bulldog fan.