Dear Patrick:

Do you think that drug and alcohol testing should be more widely utilized in the legal profession? I am a lawyer who specializes in professional liability, and over the last 20-plus years I have seen other professions (most notably the medical profession and safety-sensitive industries) make drug and alcohol testing part of their culture and approach to professional regulation. Should we not do the same considering statistics about attorney addiction?

-Steve

Dear Steve:

Congratulations, by broaching that subject you are now the least popular guy in the room. In some circles, you’d be labeled an outright buzzkill, a bona fide joy-drain, or maybe even a heretic. Joking aside, you raise an important, if not very touchy, subject.

You’re correct that drug and alcohol testing—aka monitoring—is far more prevalent in other fields and industries. While there are definitely some instances in which monitoring does occur in the legal profession, we have largely resisted (or escaped, depending on whom you ask) the general trend toward that type of objective and transparent accountability about drug and alcohol use.

Now, I hope you enjoyed your short-lived reign as Captain Unlikable, because I’m about to unseat you by saying that yes, we should make monitoring a more widely accepted and normalized practice in the law—at least in the context of those who are known to have an alcohol or drug problem.

To be clear, I am not talking about pre-employment screening or random, no-cause testing during the course of employment. That’s not my hill to die on, and it is up to individual employers to decide what their own policies are going to be around drug testing in those contexts. Knowing what I know about how hard it is to get many law firms to even acknowledge that drug and alcohol abuse are a problem in the profession as a whole—let alone at their firms—I wouldn’t hold my breath for monitoring to pop up as a common practice in firm life any time soon.

When it comes to individuals who are known to struggle with alcohol or drug addiction, however, monitoring can be an invaluable tool to help them overcome their problem, maintain their practice, and otherwise avoid many of terrible outcomes that can befall individuals in their circumstances.

Extensive research has demonstrated that random drug and alcohol testing (monitoring) is a very effective way of supporting recovery from substance use disorders, and of increasing abstinence rates. The medical profession has long relied on monitoring as a key component of its treatment paradigm for physicians, resulting in long-term recovery rates for that population that are between 70-96 percent, which is the highest in all of the treatment outcome literature.

One study found that 96 percent of medical professionals who were subject to random drug tests remained drug-free, compared with only 64 percent of those who were not subject to mandatory testing. Further, a national survey of physician health programs found that among medical professionals who completed their prescribed treatment requirements (including monitoring), 95 percent were licensed and actively working in the health care field five years after completing their primary treatment program. You probably don’t need me to tell you this, but that is an incredible number.

Although we don’t have data on it, my experience has been that far less than 95 percent of lawyers who struggle with addiction are still working in the legal profession five years later—often because they don’t have the structure, support and accountability to help them successfully overcome their problem before they’ve lost their career, and sometimes much more. So, not only are the outcomes in the medical profession exceptional and encouraging from a humanitarian perspective, they offer clear guidance for how the legal profession could better address its high rates of substance use disorders and increase the likelihood of positive outcomes for addicted attorneys. Who could argue with that, you ask? Some do.

While the benefits of monitoring have been recognized by some bar associations in addition to lawyer assistance programs and employers throughout the legal profession, many resist the idea, and a uniform or “best practices” approach to the treatment and recovery management of attorneys has been lacking. Citing everything from invasion of privacy concerns to a mistaken belief that a fear of being monitored will keep people from getting the help they need, opponents of the idea generally don’t understand how vital accountability can be in overcoming an addiction. As licensed professionals who are self-regulating and entrusted with the public confidence, we really shouldn’t have a beef with accountability.

Finally, let me just say that through advances in monitoring technologies, random drug and alcohol testing can now be administered with greater accuracy and reliability—as well as far less cost and inconvenience—than ever before. Law schools, legal employers, regulators and lawyer assistance programs throughout the country would all benefit from greater utilization of monitoring to support individuals recovering from substance use disorders, and it is time we all take Steve’s question more seriously.

Have a question? Send it to wellcounseled@gmail.com, and I’ll see you back here in two weeks.

Patrick R. Krill is the founder of Krill Strategies, a behavioral health consulting firm focused exclusively on the legal industry. Go to www.prkrill.com for more information.