Victor Negrón, Jr.
San Antonio Bar Association
President Harry S. Truman must have felt much the same way as I feel now. One day he’s the Vice President, performing various (but to a great extent non-policy setting duties) and the next day, he’s being looked to to make decisions that have long-range and significant effects. Although assuming the office of President was something he had been prepared to do, such preparation never seems sufficient for the realities that come along when the office is assumed. If you’re thinking “He must be talking about the Bexar County Law Library’s Self Help Center and the Bar Association’s advocacy for it,” you are correct.
All this to say that I was settling in for an uneventful and quiet term as President of the Bar when the issue of the Bexar County Law Library’s Self Help Center took front and center stage in the life of our local bar. Because of my interest in the issue, and because we were approaching our esteemed president’s end-of-term, I took the lead in this vital issue, and have been working for the last several weeks toward implementation of this program. I certainly had not anticipated, nor expected, that my entire first column would be consumed with this issue. But because it is an issue that has caused us to examine the attorney’s role in relation to the general public, and because it has caused attorneys on both sides of the issue to take such passionate positions, it has, indeed, dominated in an extreme manner.
On July 22, Commissioners Court voted 4 to 1, after an emotional and trying debate, to rescind their prior approval of the Self Help Center. In two weeks, the Center, which has employed two “reference attorneys’ and one administrative assistant, will be disbanded unless a compromise that is palatable to Commissioners Court can be reached between proponents and opponents. At this moment, such options are being explored, and an update will be provided to the membership as soon as available.
For those of you who have been enjoying the summer months at exotic locations like Port Arthur, or have otherwise not been informed about what has been going on at the Courthouse, you may not know what the Self Help Center (as proposed) is. Let me summarize it for you:
As you know, Bexar County’s law library on the fifth floor of the Courthouse is open to the public. It’s director is Mr. Jimmy Allison, who is also Executive Director of SABA. On any given day, as many as 25 members of the public inquire of SABA and law library staff about representing themselves. A vast majority of the people seeking to represent themselves are inquiring about family law. At this point, the best that can be done for these individuals is to sell them packets of pleadings and instructions to allow them to attempt self-representation. Oftentimes, these “pro se” individuals will seek assistance throughout the courthouse, inquiring of the deputy district or county clerks, or of attorneys who happen to be riding up in the elevator with them as they look for help.
In an attempt to address this growing problem (particularly the problem of judges being presented with defective and substandard court orders and decrees) the Bexar County Civil District Judges directed such pro se individuals to their staff attorney, Ms. Dinah Gaines, who in 2007, assisted no fewer than 750 pro ses per quarter by reviewing their pleadings and court orders and by helping them “put on proof” in Presiding Court when they were ready to finalize their cases.
Unfortunately, the approaches above are not without serious criticism. None of the remedies currently in place at the Courthouse address the problem adequately. Thus, in an attempt to provide a more viable solution, the Self Help Program was developed and presented to and approved by Commissioners Court in January of this year. The Program was to be funded by adding $11 to the current filing fee for a family law matter. Two “reference attorneys” and one assistant were hired by Mr. Allison and an oversight committee was named to develop protocols and guidelines. Before such protocols and guidelines could be completely devised, and before the Center could be put into operation, however, opposition to the Program developed and organized, and, at an emotional hearing before Commissioners Court, the Program was suspended. Commissioners Court named Commissioner Tommy Adkisson to receive input from proponents and opponents of the Center, and then to report back to Commissioners Court in time for their final vote on July 22.
Commissioner Adkisson first heard general concerns from all comers and appointed a committee consisting of six individuals who represented both sides of the issue. Although the meeting of this committee was cordial and civil, no consensus could be reached. The committee reported this fact, along with their respective positions, back to Commissioner Adkisson, who then reported back to his fellow Commissioners in time for the final vote.
Although the Commissioners have voted on the Center, it is important to set out a few of the important lessons I have learned throughout this intense process:
1. In the future, the Bar Association will be taking more extensive steps to publicize to its membership implementation of new programs well in advance of their realization. For reasons which are now clear, many of our members felt that they did not have sufficient notice that such an important program was being considered, let alone being implemented. On behalf of SABA, I apologize sincerely to those of my colleagues who felt this way.
2. Reasonable minds can differ on this issue, and those who oppose the program, have legitimate and valid concerns, which should be heard. My special thanks go to the Mexican American Bar Association, whose heartfelt and sincere opposition to the Center helped define and address the issue more fully.
3. Ultimately, however, and regardless of the outcome of the issue, we should keep in mind that the legal system belongs to the people. They have a Constitutional right to access the legal system. Attorneys and judges are the guardians and trustees of the legal system and should always insure that all members of society should have access to what is, for a member of the public, a complex and mystifying process. It is up to us to find ways to provide meaningful access for them to the legal system.
It should matter to ALL of us that there are individuals in Bexar County, regardless of economic class, who would undertake their own legal representation without the advice and counsel of an attorney. It is my hope that, regardless of the action taken by Commissioners Court, all the members of SABA and the minority and specialty bar associations can unite and act, in a meaningful and effective way, to address the growing problem of these individuals seeking to represent themselves.
I cannot close without offering my profound thanks to the hard-working staff, officers and board of SABA—especially to our Immediate Past President, Allan K. DuBois, whose leadership this past year, sometimes under very trying circumstances, never lost sight of the fact that the law is a vocation and that our first duty is to those we serve. As always, my thanks also go to Mr. Jimmy Allison, whose institutional memory and unerring guidance has provided us with an award-winning bar association we are all proud of.
I thank God and you for the opportunity to serve the San Antonio legal community. I hope that members, and non-member attorneys alike, will see me as someone whom they can approach to discuss better ways to serve as your President.
After the enlightening columns of my esteemed predecessor, Allan K. DuBois, I feared that anything I put on paper would fall far short of the mark he had set for me. Month after month, it became clearer to me that I could not catch him, any more than a relay runner in a 440-yard race could hand the baton to a teammate that ran like The Flash of my comic book heroes.
What I have discovered, however, in my reading of so many President’s columns, is that in myriad ways, each of them has sought to illumine for all of us those aspects of our vocation that raise it from mere profession to solemn call.
And so here I find myself, the current President in a long, distinguished line, feeling an overwhelming sense of duty and honor, tempered by humility and gratitude and desiring deeply to lend to the members of the San Antonio Bar Association whatever meager leadership skills I have at hand. This column is probably the best vehicle I have available to me to communicate with you those ideas that I believe will continue to make us a strong Bar, and which are to be lauded and emulated.
Thus, as I pondered the topic of my second column, I knew that many topics competed for my attention—but the one that I most wanted to share with you, my brothers and sisters in this honorable profession—was the manifestation of the virtue of charity in one of our own members. You may say this virtue is present in a great majority of our fellow members, and you will find me agreeing with you. However, for this month’s column, I have chosen this person as evidence of one lawyer’s resolve to make a positive difference in her own corner of the legal world.
Her name is Carla Brundage Morrison. We first met when we both served on SABA’s Fee Dispute Committee. As most of you know, the Fee Dispute Committee is an arbitration panel that resolves fee disputes, which arise between an attorney and his or her former client.
It turned out that Carla was a former high school classmate of my wife, the former Liza Venzor, when they both graduated from St. Mary’s Hall. I would have them both after me in short order if I disclosed their graduation year.
Anyway, Liza and Carla reconnected, with Carla’s husband, Andrew, and I in tow. Carla had taken a few years off after passing the Texas Bar Exam to stay home and rear her four children. When the time came to reenter the practice of law, Carla gained experience working briefly with me and then at the City Attorney’s Office. When she was ready to leave the City, she consulted me along with others, and I suggested that she meet with then-Associate Judge Peter Sakai and get in line for appointments in the Abuse and Neglect Docket (the former D & N Docket, now known as the “CPS Docket”).
She started gaining her now-vast experience through numerous appointments as an attorney ad litem, representing the best interests of abused and neglected children.
I have learned that Carla’s vocation in the law is something to be admired: she is a zealous and tireless advocate of the best interests of her clients, even if her clients disagree (as they sometimes do). An accomplished knitter and quilter (are those the proper terms?), she has knitted a blanket in bright, cheery colors for each of her young clients.
As a side-note, I salute all those under-the-radar attorneys in the CPS Docket, as well as all of our Community Justice Program and Wills Clinic volunteer attorneys, Texas RioGrande Legal Aid attorneys, St. Jude Legal Clinic attorney volunteers, St. Mary’s Law School’s Center for Legal and Social Justice and all other attorney-volunteer organizations and individual attorneys who work long and hard for no or little pay, representing children, their parents and other needy clients. I believe the legal profession is unequalled among professions in its volunteerism and that Texas lawyers should be particularly proud of the tradition in this state of helping those who cannot afford an attorney.
Back to Carla: she also puts thousands of miles on her vehicles annually, because she visits her charges—children often sent to (or residing in) such remote and faraway places as Abilene and Eldorado. When I have had occasion to ride with her in town, her GPS device is the first thing I notice on her dashboard. That’s so she can find her way around when she goes to visit her children-clients.
I know that her life has been threatened on several occasions by irate parents who do not see things as she sees them, yet she continues her work. Why? Because she wants her practice of law to make a difference—even if it is a small difference—to her clients and their families.
And so, I dedicate this month’s column on the virtue of charity to Ms. Carla Brundage Morrison, who represents to me all those lawyers for whom the practice of law is a calling. Her dedication to the truth and to her young clients exemplifies the charity that the practice of law requires, and without which, would be “just another job.” May we all strive to emulate the Carla Morrisons among us with every client, knowing that ours is a “service profession” dedicated to the noblest of virtues: charity.
In 1964, Abilene, Texas, seemed to me to be much quieter than the San Antonio I had left behind two years earlier. Our family of eight had relocated there because my father, a lawyer and Captain in the Office of the Staff Judge Advocate of the U.S. Air Force, had been assigned to Dyess AFB in Abilene. We lived in a part of Abilene where there was a significant concentration of Air Force personnel because of the subdivision’s proximity to the base.
One Sunday afternoon, our family got a first, real taste of the ugliness that can occur among people who do not understand one another. Our clothes dryer had gone on the blink, and my mother asked my father if he could take the wet clothes that she had just washed to the local laundromat to get them dried. My father gathered the wet clothes into a basket, and grabbed my two younger brothers as unwilling helpers. They walked the two short blocks in the August humidity and heat to the laundromat, which was immediately adjacent to the corner convenience store. Once inside, my father proceeded to put the wet clothes into an empty dryer, when a wiry, older man came out and angrily confronted my father. He must have been the owner.
“What do you think you’re doin’?” he asked. My father replied, somewhat puzzled, that he was putting wet clothes into a dryer. The owner then pointed to the storefront window and yelled “Can’t you read?!” My father looked in the direction of the storefront and noticed a sign that read “No Mexicans.” He turned back to the owner and said, “Look, our dryer is broken, and I’m just trying to get the clothes dried. I’ll be out of here in no time.”
Wrong answer. The owner stormed into a back room, and came out holding a hammer in his hand. With a posture and look that made the fear palpable to all, especially my young brothers, the owner demanded that they all “GET OUT NOW!!”
My father did not need another invitation to leave. With the angry owner tensely hovering over him, he quietly gathered the wet clothes back into the plastic basket. My father, with my two young brothers clinging to his pants, walked back home in the heat, carrying the still-heavy basket of wet clothes. I don’t think he had to tell my mother anything, because my brothers excitedly “spilled the beans” when they got home. My father did all he could to keep my mother, a lion-hearted woman with a heart of gold, from confronting the laundromat owner herself.
The following morning, two Air Force military policemen got out of their marked, blue sedan and posted a sign in the same storefront window at the laundromat: OFF LIMITS TO ALL AIR FORCE PERSONNEL. My father, in his capacity as legal advisor to the base commander, had notified the commander about his unpleasant encounter with the Laundromat owner, and had recommended this action be taken, since the Air Force had recently adopted an official policy of nondiscrimination (along with rest of the federal government, since the passage of the Civil Rights Act of 1964). Our family would go on to encounter other acts of discrimination or meanness because we were Hispanic, but this episode made a deep impression. We still talk about it at family gatherings.
Once I became a lawyer, and I could look at this incident through the prism of the law and my role in it, I realized that it impacted how I behaved as an advocate. This disturbing event brought home for me the real meaning of justice. It also caused me to examine the way in which I viewed someone who made my family or me the target of their unfounded ire and prejudice. I also realized what justice is not: it is not pre-judgment. It is not prejudice or bias. It is not meanness or unkindness. Justice is doing what is right. It is a manifestation of fairness and kindness because of a person’s regard for all human beings and their condition in a given situation, or in society. It is recognition of their dignity as human beings. In sum, it is acting as a lawyer and an advocate in a given situation—or with clients, opposing parties, or the court—because of who you are, not because of who you represent. Justice will not allow you to take unfair advantage of anyone involved in the legal process, whether it is your client, or the opposing party, because to do so would be to act unjustly, and dishonorably.
I am far from perfect, and have made many mistakes I wish I could undo in the near-30 years since the State of Texas took a gamble on me and gave me a law license. One thing I have tried to do, however, is to ask myself “Is this the right thing to do?” when a client has asked me to do something that gives me that unsettling feeling way down deep. It has made me ponder what justice is, and whether my particular role will result in justice being done.
November 2008 - Collegiality, respect and honor for your opposing counsel and other attorneys
Some of you may remember Mr. David Carter, an esteemed member of our local bar. When he was actively practicing law, Mr. Carter was known as a very collegial, amiable and honorable man. He was also a frequent fixture in Presiding Court. He is retired now from the practice of law, but back then, if you had a case with Mr. Carter as your opposing counsel, you were more than confident that the matter would be settled fairly and amicably.
Then one day, in Presiding Court, I saw Mr. Carter stand when his case was called, and as had been his custom, he calmly announced “conferring.” His opposing counsel immediately responded by announcing that “there is no way this case can be settled! We want to be assigned, Judge, and we’re announcing a half-day for a trial on the merits.” His ire, although puzzling, was palpable.
The courtroom was hushed and stunned. I could not remember a time when I ever observed an opposing counsel of Mr. Carter’s announce for a trial—I suspect that neither could a vast majority of the attorneys in the courtroom that morning. As the call of the docket concluded and the attorneys poured out into the hallway outside the courtroom, I saw Mr. Carter and overheard him say “Doggone it! If that man wants a trial, I’ll give him a trial!” That is the closest thing to cursing, I believe, that Mr. Carter could conjure. Off the attorneys went with their clients in tow, to their assigned court. A young lawyer at the time, I think the events of that morning had me shaking my head all day wondering “What kind of lawyer is it that can’t settle a case with David Carter?” Like so many others, I had my own matters to attend to and didn’t know what happened with that case until some weeks later when I saw Mr. Carter at the courthouse. “Mr. Carter, remember a few weeks ago, in Presiding Court, when that attorney announced he wanted a trial? What ever happened with that case?”
Mr. Carter drank in that moment before his response like some delightful smell of turkey cooking on Thanksgiving morning—“I wiped the floor with that man! I wish he hadn’t made me do that. I hope he learned something.”
Well, I certainly learned something: Zealous advocacy is truly admirable, and a well-honed sword in an arsenal of weapons. It should also be tempered and used judiciously. Mr. Carter’s opposing counsel thought that he was being a zealous advocate when—truth be told—he was confusing it with improvident and unprofessional conduct.
Advocacy is present every time an attorney takes on a client. Advocacy is the expression of justice. An attorney can advocate and resemble Mr. Carter’s kinder and gentler approach or he/she can be at the other extreme (“zealousness” taken to the extreme)—or anywhere in between. An attorney can be well aware that he or she can “wipe the floor” with the opposing counsel and still be collegial and professional.
In the last couple of decades, I have seen the collegiality between opposing attorneys erode and deteriorate. I get to see it up close in all aspects of my practice, but especially in my mediation practice, which consists, as many of you know, of family law and civil trial mediations. I have seen friendships between attorneys fall victim to zealous advocacy that was seemingly boundless. I have seen attorneys drag their clients along as they (the attorneys as well as the clients) made the cases “personal.” I have heard attorneys call other attorneys by vile and disgusting names. The practice of law, many times, has become “personal.” Now that our economy has taken a down-turn, I expect we will see more of this kind of conduct. As money rises to the top of our concerns, so will be the making of it. Other important things, such as collegiality, respect and honor will be victim to this re-emphasis on money-making and money-keeping.
At such times, attorneys can lose their objectivity. Commercial reasonableness is cast aside, and the attorneys on both sides of a case then engage in the legal equivalent of “broadsides”—the exchange of cannon fire between the ships of old.
So, what do attorneys like David Carter, Cheryl Wilson, Roy Barrera, Sr., Charles L. Smith, James H. Pearl, the late Raul Villarreal and the late Ralph Langley all have in common? They are known as zealous advocates, yet maintained that advocacy within the bounds of professionalism as mandated to us by the Texas Lawyers Creed. They could disagree, without being disagreeable.
I surmise that unprofessional conduct has, at its core, envy and pride. An unpleasant (and therefore unprofessional) attorney feels he or she has something to prove. Without regard to the cost to their client, they embark on a course of conduct aimed at showing the other side just how good they are at what they do. Sometimes they engage in such conduct at the urging of the client. They write emails and letters that drip with sarcasm and spew venom. They know you will most likely copy your client on those correspondences, and are oblivious to the gasoline it will throw on the embers of litigation. They may even be encouraging the conflagration.
Attorneys (if not acting in hypocrisy) are collegial to one another because they respect their opponents. If you truly respect your opponent and are not just paying them lip service, then you see them as honorable men and women. If they are people of honor, then they are deserving of the professionalism you will exhibit toward them. And here’s the catch: if they are not deserving of your respect, then you must still extend to them the utmost professionalism; because, as the 19th Century novelist Sir Walter Besant said, “You cannot believe in honor until you have achieved it. Better keep yourself clean and bright: you are the window through which you must see the world.”
Treating our opponents with honor is an obligation we each carry within. It is not negotiable. And who knows? Maybe it will rub off on those in our profession for whom “honor” is just another name for the judge and who see the law as their personal “anti-personnel” weapon. We may be able to do more by projecting what the legal profession is, than by showing others what it is not.
I would like to put two “cases” to you involving one of the most important qualities of a good attorney. The first “case”: Lately, I have been receiving calls from potential clients who already have attorneys. It isn’t that the problems they present are insoluble. They consist of the usual fare of family law (child support disputes, custody battles, divorces with (as car dealers are fond of saying) “all the bells and whistles”). What strikes me as unusual, however, is not so much that their current attorneys are incompetent; for the most part, these callers feel that their lawyers are competent to handle the subject matter in question.
The problem appears to be generally twofold: the cases are taking too long to resolve, and they do not feel as if their attorneys are listening to them. One recent caller began to cry on the phone as she told me about the nature of her encounters with her attorney. She described a lawyer who seemed to lack any compassion at all for what her client was going through. Additionally, when the client called, I was told, she was referred to the attorney’s assistant, and was never able to speak to the attorney without taking what I would consider inordinate steps to secure time alone with her lawyer.
Mind you, I am well aware of a couple of basic principles when receiving calls with the potential of making you the second, third, fourth, etc., attorney. The first principle is that “there are two sides to every story (sometimes more)”—and, the second principle, of which I am also more than well aware: that you are able, usually without any psychological testing at all, to determine that a potential client has a significant mental health issue.
The above principles aside, I spent more than a half-hour with this individual on the phone. I ended up suggesting that she schedule a one-on-one conference with her attorney and tell that attorney exactly what she had told me. If they could not resolve their differences, then I asked her to contact me with a view toward seeing whether this was a matter I would be able to handle for her. I have not heard back from her since then, and can only assume that she was able to get the attorney to focus on the issues that were of most concern to the client.
The second “case”: It had been one of those mornings, when you come to the office, and everyone (who has your GPS locator programmed into their computer) knows it. The calls are coming in furiously, each one presenting you with the death by a thousand paper-cuts as its only option.
The receptionist informed me that a deputy district clerk was on the phone, returning my call. I strained my brain for an instant, trying to remember what it was I called the District Clerk’s Office about. I decided I had better take the call.
“Mr. Negrón, this is Maria (not her real name) from the District Clerk’s Office, returning your call from last week.”
All of a sudden I remembered. I had been trying to secure some statistics regarding the District Courts, and had called Maria about that. I also remembered that I had called her more than seven days previously. That explained my temporary memory lapse. In an instant, I went from “What can this call be about?”, to a VERY strong temptation to take a deep drink from my cup of sarcasm and say something pithy and witty and, of course, sarcastic/caustic. A little voice told me to hold my tongue, and Maria continued.
“I’ve been out of the office a lot lately, and I am SO SORRY that I just hadn’t been able to get to your call. My 14 year-old daughter has suffered a relapse of leukemia, and I’ve had doctor’s appointments and the like to tend to. She’s going to need a bone-marrow transplant.
I was gut-punched. All of a sudden I remembered my role in the law: that the law is a vocation, it is a solemn call. We’re supposed to help people, even when we don’t represent them. It was like God rewound me or reset me to home base again. It was like He took this hideous costume off of me, and I was the real “me” again. I know that Maria was not a client, nor wanting to be a client. But lawyering always begins with the basic premise that, as professionals and practitioners of the law, we must treat all whom we encounter with the recognition of their human dignity. It did not matter that I was not going to be acting as Maria’s attorney.
“I am so sorry for your daughter and you and your family. Is there anything I can do?
“Just pray. And ask others to pray. And just let me know what it is you need, and I will try and get that for you quickly.
Here she was, trying to deal with me and my VERY SMALL problem, with this HUGE cross on her back. I was so ashamed that I had allowed those very bad thoughts to even enter my mind. Maria and I spoke for about half an hour, as she tearfully told me what her family was going through. My need for any statistics flew out the window as I tried to offer my prayers and support for her daughter’s, and her family’s, ordeal.
Lawyers are at the front line of people’s problems and battles. By the time they get to us, many people have put off a visit to the lawyer’s office as long as they could. Most are facing devastation, break-up of their families, financial ruin, damaged businesses, depletion of savings, retirement and college funds (which have already been depleted by the market forces), angry spouses and children, or angry siblings and family, and the like. Attorneys have been given a license by the State of Texas to help its citizens through their legal travails. Technically, Texas attorneys can be proud to proclaim that they stand among the best attorneys in the nation. But, many of us see the law almost exclusively as a business. Yes, it is a business, but it is, above all, a vocation and a calling.
The next time I speak with a client, or with a prospective client, or with a member of the public, I am going to make every effort to remember that I was given a great gift that allows me to practice law and help others in dire circumstances. I will try and make time just to listen, and not just hear. I will make a conscious effort not to tap my foot, or keep looking at my watch, in the hopes that, even if I have not solved their problem in that hour, I will have at least eased this person’s mind, assuring them not of an outcome, but of a maximum effort by someone who truly cares about this person.
[On December 18, 2008, in the Cadena-Reeves Justice Center, Sol Casseb, III was sworn in as Judge of the 288th District Court. The following constitute my remarks at his investiture. They are provided to you as a brief reflection on the judiciary.]
I am filled with pride at the thought that my good friend and colleague, Sol Casseb, III, is being sworn in as Judge of the 288th District Court. For a few weeks, I pondered what I would say in my remarks today. My thoughts ranged from the hilariously funny, to the serious, to the contemplative. I remembered many occasions when Sol and I talked about things as mundane as where to eat lunch, to such things as how the vocation of law plays out when principles are applied to reality.
Most of all, we talked about his love for his beautiful wife, Celeste, his family, and their wellbeing. We also spent a lot of time talking about his second job, premier drummer of his band, the Court Jesters—a true Renaissance Man.
But in order to understand a little bit of the Sol Casseb I know, I take you to the time of our first meeting. The year was 1980, and I was a 2nd-year lawyer who, in my desperation to secure paying clients, had ended up representing one faction of contentious Masons. My clients were fighting for the right to control a Masonic Lodge in near-South San Antonio. Jim Pearl was my opposing counsel, representing the other faction. The rambling dispute spilled over into Justice of the Peace Court, County Court and District Court. In one memorable hearing before the late Judge Carol Haberman, Sol Casseb, III was second-chair to Mr. Pearl, and was cross-examining my client. The examination became so heated at one point that the witness and Sol exchanged threats of physical violence. Back then, I was completely oblivious to the fact that Sol worked out with weights twice a week. After a brief exchange, Judge Haberman regained control of the proceedings, and cooler tempers prevailed. When my clients ceased paying me, or responding to correspondence, I filed a motion to withdraw, and shortly thereafter was invited to join Casseb & Pearl as their newest associate.
Sol and I became fast friends, and I got to see, first hand, the making of a district judge. I have no doubt that Sol will draw on the example of his father, Retired Senior District Judge Solomon Casseb, Jr. I also know that Sol knows who he is, and is his own man.
In the 28 years since I met him, I have had many occasions to observe Sol’s character and demeanor. I know him to be a man of unwavering honesty, humility, and compassion. He possesses a firmness of character when he feels he knows what must be done. He has a moral courage that does not permit him to do anything but the right thing—even if doing so may cost him friendships or affection.
When he was informed that Governor Rick Perry would be naming him to the 288th District Court, he and I spoke. In that conversation, he pondered what the office would demand of him—more of an expressed thought than a question put to me. I volunteered an answer, and would like to expand on that answer at this time by giving a little bit of advice based on my own, very limited experience on the District bench.
Don’t be afraid when you take the bench. Few, if any new judges, have judicial experience. Many have had very limited legal experience, especially in family law. Some have served as lower court judges, but most have not. Certainly, there are laws and rules to be followed, but each courtroom is like a ship of the United States Navy: a place unto itself, governed by overriding laws and principles, but each Captain is in charge of his or her own vessel. Having been a private attorney for all of your legal career, and having practiced actively in the courts of this State, you will have a very good idea of what to do once you sit at the bench. As Yogi Berra might say, “It’s like riding a bicycle you never rode.”
The robe you will soon put on is a symbol. It tells all who approach that you will administer justice, fairly and equitably. That you will protect and defend the Constitutions of Texas and of the United States of America (hence the reminders of your oath in the form of the flags that stand behind you).
Try to remember that, by the time you see litigants or attorneys appear before you, most have made a good faith effort to resolve any differences. Regardless of their social class or standing, they deserve to be heard and listened to with patience and kindness. Be mindful of the time the attorneys have taken to prepare the case prior to coming to court, and the time and money which the client has lost because they find themselves in court that day. We have all heard the stories of judges who seem in too much of a hurry to listen to the attorneys or their clients. Instead, they invite the lawyers to give short-hand versions of a dispute, and decide such dispute, without ever hearing one word of testimony, or seeing one piece of evidence. The attorney that seeks to have a full-blown hearing may appear to be the “bad guy”, and thus may be hesitant to push for the hearing. The losers are the litigants, who are puzzled when a decision is announced to them. They thought they were entitled to a day in court, but feel shortchanged when they may not have even gotten to see a judge.
I do not understand what happens to judges who take the bench, and suddenly forget who they are, where they came from, or whom they serve. In common parlance, they become afflicted with “black robe disease”; that is, their pride causes them to assume an air and arrogance that is off-putting and unprofessional. Such an attitude is not conducive to justice, and in fact clouds the judgment of the court to such an extent that justice, if provided at all, is a result of luck more than anything else. Remember that you are a servant of the people, serving at their pleasure. The people of the State of Texas are your employer. I will not get into a discussion here on the sufficiency of the wages which are paid, but I will say that the people deserve to have their courts available to them for the customary work week.
You are who you are, Sol, because you are a family man, and because of your compassion and empathy for all people and their condition. That quality will serve you well on the bench. You will have occasion to hear people who may sometimes be forced to represent themselves because they do not have the resources to pay for an attorney. In this economy, I fear that such a circumstance is going to become more the rule than the exception. When you do encounter such “pro se litigants”, be patient and kind, but firm. Even if they are unable to obtain the relief they were looking for that day, they deserve to be heard, and will feel as if someone listened to them.
Remember that it will cost you nothing to address the attorneys in your court professionally and courteously. It will also benefit them if you require them to conduct themselves in this manner, and to treat their clients and fellow attorneys this way, as well. Some judges do nothing when attorneys mistreat each other at the bench or in the courtroom, or allow their clients to engage in such conduct.
A couple of other things. By now, you’ve noticed that your jokes are suddenly funnier, and that people who never gave you the time of day before, are now your very best friends. You’re going to have to keep your relationships at a professional level, and from time to time, you will need to immerse yourself in your roots, seeking out those who remind you of who you are and where you came from. This will keep you human.
Robert Bolt, who wrote the autobiographical play “A Man for All Seasons”, about St. Thomas More, wrote that More was to him “a man with an adamantine sense of his own ‘self’. He knew where he began and left off, what areas of himself he could yield to the encroachments of his enemies, and what to the encroachments to those he loved. . . . But at length he was asked to retreat from that final area where he located his ‘self’. And there this supple, humorous, unassuming, and sophisticated person set like metal, was overtaken by an absolutely primitive rigor, and could no more be budged than a cliff.”
Sol knows where he begins and where he leaves off. He knows himself, and it is this “self” that will apply his own immovable principles of honor, justice, honesty, compassion, kindness, firmness and the temperament of professionalism that is required of the judiciary.
Sol, may God bless you by rewarding you with the wisdom and prudence that you will need as you assume the duties as our newest Judge of the 288th District Court.
“It is not for kings to drink wine; nor princes strong drink; lest they drink, and forget the law, and pervert the judgment of any of the afflicted.” Proverbs 31:4-5
“If the son of a b_____ could just keep his &%@! in his pants, we wouldn’t have this &^%$! problem!!
The attorney on the other end of this telephone conversation was audibly agitated. We were discussing the inclusion of particular language in a judgment affecting two former lovers. My opposing counsel was so upset by my client’s position that I thought I was actually speaking with the opposing party, and not with her attorney. At the time, I thought that the tone and language he was using was the same sort of invective my client’s former lover would have used.
I was a novice attorney at the time of this encounter several years ago, and knew enough not to escalate the rhetoric. My closing comment was just enough to end the conversation. At our next conversation, we were able to arrive at a compromise, and all I could think was “He’s like a Dr. Jekyll/Mr. Hyde,” which was my limited way of commenting on my opposing counsel’s change of tune from his prior, civil conduct. My future dealings with this same attorney did not alter his manner of dealing with me and, as I later found out, his other opposing counsel.
On another occasion which occurred within the last year, I encountered a fellow attorney at the courthouse whose breath bore the distinct odor of alcohol. I could write it off as a symptom of almost anything else other than overindulgence of alcohol, except that I worked three summers as an investigator in the Bexar County Jail during law school, and interviewed countless arrestees who had been booked for alcohol and drug related offenses.
Finally, two recent stories of alleged attorney misconduct in San Antonio (one involving an attorney allegedly bilking her relatives’ estates, and another involving the taking money from hundreds (perhaps thousands) of clients and then not handling their traffic tickets) leave one scratching their heads in puzzlement about the nature of forces that would compel attorneys who have worked so hard to secure licenses to practice law.
Whether you are a litigator or not, we all seem to have stories about bizarre and sometimes histrionic behavior of some of our opposing counsel. We can all tell anecdotes about our opposing counsels’ mood swings among some of these individuals, as well.
How are these various stories related? I am not a trained expert in psychiatry or psychology (although I have often thought that family lawyers should be required to have a subspecialty in psychology). I know enough, however, to be able to at least theorize that some of my fellow attorneys are suffering from serious chemical dependency or mental health problems. I can also theorize that some clients and adverse parties suffer from the same sort of maladies, although I may need to postpone for another time a discussion of how our clients’ problems impact our representation of them.
By its very nature, the practice of law invites conflict and, on occasion, a tremendous amount of personal stress. Whether you are a corporate or transactional attorney, or up to your ears in litigation or criminal defense, daily we find ourselves in situations where one attorney is a proponent of a particular position, with any number of motives, and another attorney who has a counter-position to advocate. It is this inherent conflict in the practice of law that may drive many a well-intentioned attorney to abuse alcohol or drugs, or to succumb to mental health problems that were at least controlled, or even nonexistent, earlier in their lives.
According to Ann Foster of the Texas Lawyers Assistance Program of the State Bar of Texas, of the some 75 calls received on its hotline monthly, 55% of attorneys suffer from alcohol dependency and/or some form of illegal or prescription drug dependency, and 45% suffer from mental health issues serious enough to impact their law practices. Legal seminars in recent years have begun to include talks and articles on chemical dependency (which includes alcohol as well as drugs). Those talks and articles are extremely helpful in that they help us understand clearly the nature of the problem, and what we, as individual attorneys, can do to help.
An article written and presented in 2002 by local attorney James L. Walker (“How to Recognize and Address Alcohol and Chemical Dependency in the Workplace”) set forth some alarming statistics, including the following:
Of 103 professions examined, lawyers lead the nation in incidences of depression;
Eleven percent of lawyers polled in North Carolina in 1991 admitted they considered taking their lives at least once per month;
An early-90s survey by the ABA Young Lawyer Division indicated that 41% of female attorneys were unhappy with their jobs; and,
In 1996, lawyers became the profession with the highest suicide rate, and now have the highest rate of completed suicides.
An empirical study in Washington state revealed drinking problems among 18% of lawyers who have practiced 2 to 20 years, and among 25% of lawyers who have practiced more than 20 years.
It does not stop there. The problems become compounded. The practice of an attorney afflicted with these sorts of problems begins to take a nosedive. That sort of decline is problematic in good times, but in this economy, it can lead to even more drastic action by the attorney who is impacted. The chemical dependency or mental health problems will inevitably lead to misconduct by the affected attorney. Alcoholism and other chemical dependencies together have been estimated to be a factor in at least 27% and possibly as much as 70% of professional discipline cases.
What can we do to help our brother and sister lawyers who seem to us to have problems which may lead to professional misconduct? Education is key. Therefore, while I am not sure if there is precedent for this or not, I am going to continue this discussion in next month’s column. I would very much appreciate you writing to me if you have personal experience with this vital issue, and would like to share (anonymously or otherwise) with your fellow attorneys.
“He’s not practicing law anymore. He can’t. Now he’s living under a bridge.” The words hit hard. This attorney to whom I was speaking had revealed something unknown by me about a former opposing counsel: abuse of alcohol had led to problems in his practice, and now the attorney in question had been rendered homeless, and was living under a bridge. The wheels of the grievance process had now begun to turn, and the alcohol-abusing attorney was going to end up losing his license after, apparently, losing everything else.
I wondered then: how many opposing attorneys, judges, clerks, bailiffs, staff, and clients, had witnessed this man’s slow descent into darkness? How many had noticed perhaps a change in routine or habits, change in demeanor or attitude, missing of appointments, the effects of alcohol, depression, or a myriad of other mental health issues affecting attorneys, or one of the many signs that would point to a problem? Although I do not know the answer, I also wondered whether anyone had contacted the State Bar of Texas to report that this man needed help.
In preparation for this series, I spoke to several people who had either battled the demons of chemical or alcohol dependency, and were now in recovery, or who work with those who suffer addictions in these areas. One of these, Allan K. DuBois, is currently serving as our Immediate Past-President. He told me of his service on the Professional Enhancement Program (District 10 Committee) of the State Bar of Texas. Although the various PEP Committees, as they were commonly known, were disbanded because of funding constraints, much good was accomplished through them. My own service on the District 10 PEP Committee allowed me to see, up close, the serious problems encountered by lawyers suffering from alcohol or chemical addiction, or from mental health problems. It also reinforced what I firmly believe now: that a lawyer who is floundering about and struggling to fly right, can succeed with the help of fellow attorneys and others who become aware of his or her struggles, and come to his or her aid.
Allan reminded me of the provisions of Rule 8.03 (“Reporting Professional Misconduct”), of the Texas Disciplinary Rules of Professional Conduct (“TDRPC”) in Texas. It states that conduct “…that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects,” should be reported. It also states that we have a reporting obligation in instances where one believes a lawyer is “impaired by chemical dependency on alcohol or drugs or by mental illness.” That obligation to report may be discharged by reporting that person to “an approved peer assistance program rather than to the appropriate disciplinary authority.”
His past service also involved acting for the Board of Law Examiners as an attorney monitor, reporting attorney compliance with probationary license agreements where “fitness” issues were being addressed by the State Bar.
Mr. DuBois continues his service to the Bar by serving on the Lawyers Concerned for Lawyers (LCL) Committee, which is a group of volunteer attorneys who render peer assistance upon confidential referrals from TLAP (Texas Lawyers Assistance Program). There are groups of LCL attorneys throughout the State (approximately 400 in number), ready and standing by to assist a fellow attorney who is struggling with these serious problems. Once an attorney has been referred to the LCL by TLAP, Allan’s group goes to work, providing statutorily-protected peer assistance (see Health & Safety Code) in confidence, often sharing his own “story of recovery” to persuade afflicted and affected attorneys to access medical and related resources. Unfortunately, if an affected attorney does not have private or group insurance coverage, there are meager funds available to assist him/her in the Pat Sheerin Trust (with donations from LCL volunteers).
LCL volunteers have an annual convention in June of each year, receiving additional training and CLE related to their mission. Additionally, the San Antonio LCL group has formed a legal professional AA group, which meets every Thursday night at St. George Episcopal Church, open to anyone, but particularly helpful to attorneys, legal professionals, and law students.
Allan tells me that one innovation under then-President Martha Dickey’s Task Force on Lawyer Mental Health, the State Bar of Texas began placing resource information on all new attorneys’ bar cards, as follows: “Texas Lawyers Assistance Program Hotline 1.800.343.8527: confidential help for members with mental health and substance abuse concerns.”
As recently as February 11, 2009, Chris Long, J.D., LCSW (former assistant director of TLAP, now special programs coordinator of the Office of Chief Disciplinary Counsel) made an hour-long ethics presentation to the Federal Bar Association luncheon at the Quarry entitled “Life Happens: The Myth of the Invincible Lawyer”, and highlighted the serious issues arising from attorney impairment and a consideration in the attorney disciplinary process.
I also spoke to my friend of many years, Thomas g Keyser. Tom will tell anyone who will listen about his past, destructive lifestyle (which included chemical dependency), and how it brought him to a point where he had to decide to “get busy living or get busy dying”, as the expression goes. Tom’s decision was a life-saving moment for him.
Tom and I served together on the PEP Committee, when he was Chairman. I distinctly recall one particular Committee meeting that Tom was chairing, where an affected attorney was being questioned, gently and carefully, by members of the Committee. For those of us who had limited experience with substance abuse, we could not seem to find a way to get through to this attorney, who was in essence making excuses for his recent lapses and failures (he had been monitored at this point for quite some time by the Committee). When members had not made any progress with this gentleman, Tom began a line of reality-infused direct questioning reminiscent more of a Hawaii Five-O episode than of a PEP Committee meeting. Under his questioning, the affected attorney “owned up” to his lapses, and the Committee was able to make realistic recommendations for going forward.
A lot of the people I spoke to regarding addictions or mental health issues attorneys face, are recovering themselves, or under treatment. It is these very same people that are scrambling to do everything they can to help out their fellow attorneys.
Finally, I would like to introduce you to James “Rocky” Walker. This past-Chair of the Grievance Committee is a frequent speaker and lecturer of ethics pertaining to substance abuse and mental health. He has been sober for 34 years, and began his long climb back after being charged with a DWI, and losing his position at his then-law firm.
He recommends Alcoholics Anonymous (AA) and TLAP as starting points. He is also a member of LCL, and has participated in several interventions. Although he told me that not all interventions are successful, he swears by them, and told me that “To catch a rat, you have to close all the doors first.” An addict confronted by those who work with him/her, and whom he/she respects, is strongly incentivized to seek the help they are being urged to seek.
We are our brother’s keeper. If you do not think so, look at Rule 8.03 of the TDRPC again. We have a professional obligation to report an impaired person, regardless of rank (i.e., including members of the judiciary). Even law firms are obligated to report one of their own, and to enforce the Rules of Professional Conduct. In one case out of Houston, one attorney secured a multi-million dollar settlement for his client, who then promptly sued that attorney for legal malpractice. The basis of his cause of action: that his attorney could have secured more money for them if he had not been impaired. You see, the plaintiff’s attorney had a cocaine addiction. The plaintiff’s attorney and his law firm lost that case.
If you know someone who is missing appointments and trial dates; who keeps pushing trial dates back all the time; who smells of alcohol; whose demeanor changes during the lunch hour; who seems to experience a change in personality; whom you suspect may be abusing their trust account; then, this attorney may be suffering from a substance abuse problem, and needs your help. If you do not know how to help, call TLAP, and they will get the ball rolling on trying to help out this person. As Rocky Walker told me, “Death is the last thing to happen to an alcoholic, but not necessarily the worst.”
[Next month, I will be writing about attorneys and depression]
What do the following famous high-achievers have in common: Mark Twain, William Faulkner, Hans Christian Andersen, Charles Dickens, Leo Tolstoy, Tchaikovsky, Schumann, Handel, Irving Berlin, Stephen Foster, Cole Porter, Samuel Coleridge, Lord Byron, Emily Dickinson, T.S. Eliot, Victor Hugo, Boris Pasternak, Walt Whitman, Van Gogh, Michaelangelo, Georgia O’Keeffe, Kirsten Dunst, Billy Joel?
This distinguished list of writers and artists (I had to confine my search to these areas, or this list would have been unmanageable), are all sufferers of either depression and/or bipolar disorder, two of the most common psychological disorders affecting people today. As most of you are probably aware, both of these conditions are caused by serious chemical imbalances in the brain that can, in most cases, be treated with medication and therapy.
In further preparation for this column, one of the first people I contacted was Ann Foster, of the Texas Lawyers Assistance Program (TLAP), of the State Bar of Texas. She was extremely helpful, and sent me some materials on depression. She also sent me a DVD entitled “Practicing from the Shadows: Depression and the Legal Profession”, because lawyers experience the highest rate of depression for persons in any profession. The DVD is extremely helpful because it explores, in ways we as practicing attorneys can relate to, the many reasons for the high rate of depression in the legal field, including workload and burnout, the wrangling that our profession requires us to engage in, and even the distinct personality types that are attracted to the practice of law. Symptoms are discussed in detail, along with modes of treatment, medication and therapy. Finally, the lynchpin: it does not do anyone any good if the symptoms are recognized, and then promptly ignored. Communication is the key. That would include communication not only TO the individual suffering from the condition, but communication to TLAP or another entity capable of assisting. TLAP is famous for having local attorneys and judges in most parts of the state that can be contacted in confidence to speak to (read: communicate with) the subject attorney to attempt to get through to them so that they can get the needed help.
The DVD was extremely enlightening, as several attorneys talk about their battles with depression. Their description of depression as a disease as real as diabetes or any other serious health problem helped me to view it as a serious challenge in our profession that requires all of us, those who suffer from it, and those who interact with them, to look for any way in which we can help these individuals.
What are some of the signs you would look for if you suspected that someone you knew was suffering from either depression or bipolar disorder? No work getting done, no phone calls being returned, emails not getting answered, irritability at staff and other professionals they deal with. Such individuals tend to be avoided by others, sometimes because of their violent mood swings. One attorney was called “an incredible b____” because of her irritability. Some other signs would include a lack of energy, loss of appetite, suicidal ideation and thinking, withdrawal from society, difficulty rising in the morning, rumination about bad things that have happened in their lives, and a lot of thoughts about death and dying. For these people, everything in life is like it’s in “slow motion”. Every single step is hard to take. If they stop, it is hard to get moving again. They do not have an awareness of how the depression is affecting their lives. Now the myth that they engage in: if you’re strong enough, you can overcome depression. You can overcome anything. This just is not the case: You can’t just suck it up and get through it. Fatigue, lack of energy, and lack of motivation, all get in the way of someone seeking help. So if you know someone like this, and you think “Why don’t they just go and get help?”, the plain truth is THEY CAN’T. They can barely function day-to-day. They need to get rest, but cannot. They need to eat right, but have no appetite. Depression robs them of hope and fills them with hopelessness. Hopelessness is the worst day you have ever had, and it will never end. That is hopelessness.
Interestingly, certain personality traits attract attorneys to the practice of law. These include pessimism and being a perfectionist. These can bring on the biologic condition of depression. As I indicated in last month’s column, according to one study, male attorneys have a higher rate of [completed] suicide than the general population.
If you think you are suffering from these conditions, and are experiencing thoughts of suicide, tell the people closest to you about your suicidal ideation. Put your trust in your psychiatrist. If you talk about it with those you love the most, you are much less likely to commit suicide.
The individuals who were interviewed in the DVD mentioned above, and those I spoke to, encouraged us to have the courage to speak up to help those individuals we think are afflicted with either alcohol or chemical dependency, or depression. Avoid asking such individuals yes or no questions. Let them know that the door is open for discussion, even if it does not happen at that moment. Let the person take in that you are expressing concern in a kind and compassionate way. Be proactive and be courageous. Help them get to help. Be willing to risk rejection and that person’s displeasure. If the person is not receptive, do not drop the subject altogether. You might solicit others who care about that person, and involve them, as well. People die from depression. Literally.
A brief note on medications: antidepressants are generally not addictive, but require some adjustment periods. If a person is on antidepressants, the medications should not be discontinued without a doctor’s supervision. Psychotherapy and medications are very effective together, since the areas in a person’s life that are affected by the depression can be explored, and so that thoughts of the patient can be steered toward the rational.
There is a point of no return, but we don’t know where that is. Many of us have known attorneys and others in the legal field whose battle with depression and/or bipolar disorder and/or other psychological disorders resulted in their disbarment, disability, and sometimes death. The good news is that people do get better. There is help for them. It works. But it is going to take all of us looking out for one another in board rooms, offices, hallways, courthouses, and at social events.
Remember that calls to TLAP are confidential. If you know someone who needs help, and you do not feel you can approach them yourself, pick up the phone and call TLAP (1.800.343.8527). Put their phone number on a transparent label on your State Bar of Texas membership card. You could end up being the one that stepped into the path of someone headed for self-destruction.
Since I began writing the columns about substance abuse and mental health issues among the legal profession, I have received numerous letters and emails of gratitude from individuals who have, at one time or another, suffered tragedies directly related to their own problems. I was so moved by one of these letters that I have decided to reprint it in its entirety (with the author’s permission, of course). Those of us who remember practicing law with the author recall him as an extremely gifted lawyer. He has since been disbarred, but his reflections are nonetheless a lesson to all of us that we are, indeed, our brother’s keeper. My sincere and profound gratitude to Mr. Long for allowing me to share such a private matter with the entire Bar. His letter to me follows:
“It was nice to see you and chat, ever so briefly, in the courthouse elevator on Wednesday.
“As I relayed to you in the short trip, I recently moved back to San Antonio and have had the opportunity to read your articles in the last two editions of the Subpoena where you focus on attorney alcohol and substance abuse as well as mental health issues.
“As you may or may not know, or recall, I accepted a suspension from the practice of law in the late 90’s and then, two years later, was disbarred. Though I cannot deny that I had culpability in the circumstances surrounding what transpired, because I certainly did, I must also relay to you that your article’s mentioning of mental health issues in the legal community rings a very familiar tune as a precursor to my fate and the effects it had on my family, life and future.
“I had entered my 40s when I initially found myself caught up in moods of depression. At first, the depression was circumstantial: the day went badly, a child brought a bad grade home, the dog died or a judge had made a clearly foolish ruling. Then, the depression got progressively worse at an almost undetectably slow rate until I found myself periodically in pits of despair where I could see no light, the world was closing in on me and I could not imagine any possibility of hope. As an attorney, I didn’t let it get to me. I had to appear before the Court, make my arguments and promote the interests of my clients. While before the bench the depression would disappear — I thought. However, it would immediately return if the judge ruled against my client or it would appear as a shadow when I left the Courtroom that followed me to the next legal battle of the day.
“While I was walking, talking and functioning in my state of depression, the simplest thing ranging from a slow clerk or a dysfunctional stapler to a smart-mouthed opposing counsel would set me off whereupon I would execute a tirade of insults, expletives, and rude and obnoxious verbal attacks upon all who dared to cross me. This heightened excitement would be followed immediately by an even deeper depression than before and I would be riddled with guilt over what I had just done.
“During this time my family suffered, my practice and clients were slighted and my friends suffered for me, ever concerned for ‘what is wrong with Steve?’
“Fortunately, I was eventually diagnosed as bi-polar, a mental health disorder shared among over five million Americans characterized by bouts of depression interrupted by fits of aggressiveness with potential harm to self and others. I was never physically violent, though some Bipolars find themselves in that situation. Rather, as my wife put is so succinctly, I could destroy more with words than any weapon.
“The hardest part was accepting that I WAS Bipolar. After all, I had always been in charge, in total control with no distractions and took no prisoners. Now, I found myself at the mercy of the balance of chemicals in my body, which is EXACTLY what Bipolar is. Just as the diabetic cannot control the fact that he or she has diabetes, the Bipolar cannot dictate if his body will naturally produce the chemicals in the proper proportion necessary to maintain his feelings, his demeanor and outlook on life. With similarity to the diabetic, however, the Bipolar has options at his disposal to keep in-check the issues which affect his life and those he cares about. These options include self-evaluation and awareness, diet, therapy, listening techniques and extremely important, medication.
“I was fortunate I think. Many fellow Bipolars argue against any kind of medication, asserting that prescribed drugs will reduce their “edge” in life and make them a sedated zombie. I did too at first. However, I am fortunate because I discovered very early on that with medication (Paxil being my prescribed drug) the edge merely got sharper with the benefit that my thinking became clearer and my ability to recognize my environment and deal with tasks properly was ever so much more enhanced because of my new found assistance. Interestingly even the most educated and intelligent, among whom I consider attorneys, find themselves supporting bias and prejudice against mental health care matters and refuse to learn the facts and truth about them. The stigma of mental health remains even among the informed.
“Those who know me now, and who knew me then, I am confident will assert that I am anything but a zombie and the medication has not trimmed my wit, though some might suggest my wit could use a good buzz-cut.
“Though the cause of Bipolar is unknown, I can tell you, Victor, that once I learned of my Bipolarism, it was a short putt for me to investigate my family history and ascertain that I am not the first in the gene pool to have this disorder. I have since watched my children closely for signals and to date everything seems well in that arena.
“The focus of my letter is not to seek sympathy or empathy but to make you aware that when I was going through the described turmoil of discovering my disorder, I saw the iceberg approaching me and felt helpless to avoid it. By the time I discovered I was Bipolar and sought assistance, the problems in my practice were too deep to steer the ship away to survive.
“Thankfully, something more important was salvaged, that being my relationship with my children. My wife and I divorced for multiple issues, but have remained friends through it all. My children and I are closer than ever with a mutual respect, lots of love and acknowledgement of our family history and how we got to who we are today.
“Though I am not proud of being disbarred I have learned to own it as it is part of who I am, just as being Bipolar is a part of my being. To ignore either as aspects of my life is a denial that is way too dangerous and I beg you to continue to inform others that owning up to your disease, disorder, needs or shortcomings in mental health is a truth that sets you free.
“When I fell from grace from the legal profession there were not the programs you mention in your articles or at least I was not aware of them. I wish someone would have come to me from the State Bar and talked to me about it. I wish those who saw my demeanor alter, or witnessed my decrease in proper functioning would have approached me or refered me to the proper authority, service or mentor, but alas it didn’t happen that way. I blame no one, not even myself. My mental health issue is mine to own, keep and deal with. I only wish that others in a similar circumstance will have the opportunity to learn about their condition in a timely manner and seek the same assistance we would seek for our cars when they are not ‘firing on all cylinders’ because that is as good a metaphor as I can conjure.
“Through the years I have made it known that I am Bipolar. To many I tell, I see apprehension in their eyes. I even had a Registered Nurse once tell me ‘oh, you people are dangerous.’ So much for the educated medical community! However, in making my disorder known to others it has allowed me the opportunity to counsel with fellow Bipolar and help them realize that life is not about despondency and guilt. The frank discussions have likewise been therapeutic to me over the years. Part of being in control of one’s life is learning HOW to be in control of yourself.
“I encourage the local Bar Association to consider seminars on mental health and to encourage outreaches to those in the profession.
“Though I am no longer a member of the profession, I am happy to assist in any manner if you ever need me.
“Thank you for your time to read this and especially for your dedication to the topics I have read. Please keep up the good work. Some of us are listening closely!
Remember, if you know someone who needs help, or whom you suspect is starting to flounder, please help them. Talk to them. Have them contact Texas Lawyers Assistance Project (1.800.343.8527). Or you do it. But do not wait, because if sufferers have one enemy, it is the passage of time.
As attorneys, we have the unique role of advocates, seeking justice and the protection of rights and freedoms through the legal system. We pride ourselves on our ethics as a profession, and our system of government as a country. What responsibilities are we attorneys, then, entrusted with as we move through these highly evolved (and evolving) systems of governance and ethics? Are there some groups who need more legal protection than others? Are they getting lost in the shuffle as reams of legislation get passed, both at the State and Federal levels? Do we trust that the legislation and the system itself will protect the oldest and weakest among us? Do we have a responsibility to ensure that this is so? We have amicus attorneys, attorney ad litems, child protective services, elder protective services, elder fraud task forces and various other offices and programs in place to help our legal system enhance its protection of the rights of groups who cannot adequately defend their own rights and freedoms from those who would do them harm. How wonderful, is it not? Now, a final question, what good is any of this if the legal system itself becomes one of the problems for the infirm and the aged?
Recently, there was a case involving a family who cared for their aging parent at home. The parent had a sudden drop in blood pressure and was taken to a nearby hospital for treatment. Once the initial problem was stabilized, the family was presented with an array of procedures that “needed” to be done to help this patient. Each time a new procedure was done, the patient suffered physiological setbacks. Given the setbacks, the family actively questioned the necessity of all of these procedures. The answer remained the same, “It will be easier when the patient goes home if we do these things.” The family was then told that they could make preparations to take the patient home. Before going home, a new type of feeding tube was recommended. The procedure of inserting the new type of feeding tube was invasive and not tolerated well by the patient. After this procedure, the patient needed a mask to breathe properly and remain stable.
At this point, the tides turn, and tests were scheduled for the patient without the family’s knowledge or consent. The patient was deprived of food and water (“nutrition and hydration”) for three days — again, without the family’s knowledge or consent. The treating physician put pressure on the family to remove the mask, citing reasons such as the patient’s malnutrition (nutrition was not an issue at any time during this hospital stay until the patient was deprived of food and water by the hospital). It should be noted that, if the mask was removed immediately, the patient would die soon thereafter.
The subtext here is that all procedures performed on the patient were covered by Medicaid, including the new feeding tube. The question remains whether these procedures were, indeed, medically necessary and advisable. That aside, once the patient was in a situation where long-term care was necessary due to the continued need for the oxygen mask, Medicaid was not going to cover an extended hospital Intensive Care Unit (“ICU”) stay. Since the family did not agree to moving the patient to a long-term acute care facility, the hospital had to look at its options. The hospital did not want a fight with the family, so they encouraged the family to take the mask off the patient of their own accord. When the family refused, the next option was for the hospital to remove the mask based on the doctor’s opinions regarding the purported futility of the patient’s care, hence the unauthorized tests mentioned above to “prove” the issue of futility of any continued care. If the hospital removed the mask, the patient would die. This is contrary to the patient’s Directive to Physicians (the “Directive”) and the family’s wishes. How is this possible?
Enter Chapter 166 of the Texas Health and Safety Code, particularly Section 166.046. This Section allows a doctor to either “override” the surrogate decision maker’s wishes regarding the patient’s treatment, or to choose not to effectuate the validly executed Directive of the patient.
Once the doctor has determined that there is a disagreement between the treating physician and the patient’s Directive or surrogate decision maker regarding treatment, the case must be reviewed by the hospital’s internal medical or ethics committee. The ethics committee is required to give the surrogate at least 48 hours’ notice of the hearing, and treatment must continue for the patient during this time.
Once the ethics committee has reviewed the case, and if it then agrees with the doctor, the surrogate has only ten days to effectuate a transfer of the patient to another facility that will agree to take over this patient’s treatment.
If no transfer can be found in that short, ten-day period of time, the hospital and the doctor can discontinue all life-sustaining treatment against the surrogate’s or patient’s wishes, with no fear of liability or other reprimand. Section 166.045(d) states: “A physician, or health professional acting under the direction of a physician, or health care facility is not civilly or criminally liable or subject to review or disciplinary action by the person’s appropriate licensing board if the person has complied with the procedures outlined in Section 166.046.”
The only remedy for a surrogate finding themselves in this situation is to file a suit (including a request for an injunction), and request a judicial extension of the time for transfer, which will require the continued administration of life-sustaining treatment beyond the ten days allowed in the statute. Section 166.046 (g) states that in order to grant the request, the judge must find “by a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patient’s directive will be found if the time extension is granted.”
I encourage you to read the statute and more closely examine the significant due process flaws and procedural defects in the framework that the existing law presents. While there are many competing interests here which the statute must address, many issues still exist. Particular areas of concern include the broad definition of life-sustaining treatment, who serves on a hospital ethics or medical committee (usually peers of the treating physician who have little or no familiarity with the patient’s treatment records), and whether the committee composition is regulated by anyone besides the hospital itself. If it is not, should it be? What criteria are used by the members of the ethics committee to evaluate the case during their brief review, and should that be legislated as well? Should hospitals be required to keep records of these cases, which could then be sent to an oversight committee/agency/body in order to monitor the cases for malfeasance? Finally, tort reform notwithstanding, is it a wise idea to limit all liability (civil, criminal and professional) for doctors and hospitals, given the shortcomings of this system as it exists today?
This is not an isolated, small-percentage of cases as some would have you believe. The victims in these situations are those who are infirm and often elderly. Their voices are quiet and feeble, making them difficult to hear and easily silenced.
A final note on the case I described above: the family consulted a local attorney and did move the patient out of the hospital to a long-term acute care facility where the patient continued to live for some time. The last act performed at the hospital as the transfer was being made was by a nurse who came in to draw blood. After the blood was drawn, she proceeded to throw the vial away without performing any tests on it whatsoever. It is still a mystery why this was done.
Most rights are lost not through outright deprivation, but through almost-imperceptible erosion, legislative session after legislative session. I believe it is our duty as attorneys who deal with the law day in and day out to be vigilant when this occurs, especially for those who have little or no voice. For once the laws that protect all of us are finally mowed down, what will stand between the tyrant and us?
[I would like to give my sincere thanks to Ms. Lisette Lange, Esq., for her assistance to me in writing this month’s column].
By the time you read this column, I will be in the last few weeks of my presidency. In what I will describe as similar to donning a blindfold then riding the Rattler (the famous roller coaster at Fiesta Texas) at full speed, the presidency of this Bar is full of surprises. Some good, some not so good. But through it all, the Executive Director, Jimmy Allison, and his most-able staff provide much of the heavy lifting and grunt work required to make things happen. This column does not allow me the space to adequately thank Mr. Allison and the SABA staff for their professionalism and the tremendous amount of work required to run a bar association of this size. Mr. Allison has, on more than one occasion, alerted us to the many minefields that we sometimes inadvertently encounter while running headlong in an attempt to implement what, at first blush, may seem like a commonsensical and wonderful idea. His institutional knowledge and uncanny memory for even the smallest of details is both a mystery and an asset to each succeeding slate of officers and directors. His networking contacts would even cause former president Bill Clinton to marvel.
My term, however, has not gone without its own “speed-bumps”. Even while I served as your president-elect, we had a controversy erupt which carried over into my term as president. This controversy involved a proposed, but not-yet-implemented, program for addressing the increasing self-help traffic in the courthouse. Although that traffic has continued to increase, a new dialogue involving interested individuals and organizations has begun, headed by SABA board member Justice Phylis Speedlin, to craft an acceptable and possible solution to this problem. Fortunately, the Bar Association learned some extremely valuable lessons that will not be forgotten and are now being implemented. Your new president, Mr. Robin Teague, who seemingly does not sleep (I get emails from him at all hours), will continue those efforts, which, I am sure, will be reported fully to you in the coming weeks and months.
The Community Justice Program saw a changing of the guard when Justice Phylis Speedlin and Judge Karen Pozza, founders of the CJP, entered a well-deserved “retirement,” and were succeeded by Judges Larry Noll and Michael Peden. Judges Noll and Peden continue the tradition of recruiting attorneys, lawfirms and organizations to sponsor the CJP clinics. I am so proud and thankful to Justice Speedlin and Judge Pozza for their award-winning efforts at making San Antonio’s CJP a model for organizing and maximizing attorney volunteer hours where they can do the most good for the greatest number of needy clients. On behalf of the entire Bar, I express my profound gratitude for the endless hours they have devoted to this mammoth effort. Judges Noll and Peden have continued that tradition of hard work and selflessness that will continue to reflect great credit upon your Bar Association. My thanks to them for accepting what only could be described as a daunting task. I encourage all of you to continue to participate in this worthwhile effort, especially in light of our economic downturn.
Every year, the SABA nominating committee is confronted with the unenviable task of recruiting other members to run against incumbent officers for its annual election. I am proud to say that this year’s slate of candidates, both incumbents and challengers, are respected and dedicated individuals who will devote the necessary hours and effort to making SABA provide the greatest return to its membership. At the present, the by-laws are being examined with a view toward allowing an officer to advance unopposed if a challenger cannot be found. I anticipate that this development (which has been discussed several times in my years on the board and as an officer) will be reported upon in upcoming issues of the Subpoena.
To my knowledge, no SABA member has escaped the ravages of our economy’s year-long downturn. SABA is no exception. Our revenue has decreased such that new ways of raising monies are being examined and discussed. Mr. Teague and others are actively pursuing some very promising ideas. In addition to this effort, Mr. Allison and his staff will continue to find ways to reduce unnecessary costs and expenditures while continuing to provide the highest quality service to you. The SABA board is even examining it’s 2009-2010 budget well in advance of the norm, in order to try and stay one or more steps ahead of the economy. SABA’s CLE programs are always well attended, whether those programs are produced only by SABA, or in conjunction with other specialty bars or organizations, such as the San Antonio Criminal Defense Lawyers Assocation, the SABA Family Law Section, the Litigation Section, the Real Estate Section, the San Antonio Young Laywers and the Federal Bar. SABA is well aware that it does not function in a vacuum, that a high percentage of our members are also members of one or more specialty bar associations or organizations, and that cooperation is a key part of how we do business. My thanks, again, to our brother and sister bar associations for helping us deliver the quality of service that our membership expects.
In an effort to continue our march into the 21st Century, the SABA board has approved a contract to provide WiFi access on the 5th floor. Justice Rebecca Simmons, Justice Phylis Speedlin, Robin Teague, Mark Unger and others are putting in the necessary study and time, along with Mr. Allison and the SABA staff, to make sure that we can provide our membership with now-indispensible Internet access. As you can well imagine, an undertaking of this magnitude accounts for untold hours of effort on your behalf by these and many others. If you see Mr. Allison or any of these other individuals, please be sure and thank them for their hard work.
In March, we said goodbye to a 19-year SABA staffer who was a fixture at the courthouse’s SABA offices: Ms. Betty Newman. Betty was the face and voice to those seeking SABA’s help, from members of the public to our newest attorney members. Her gentle British accent was a reassuring voice for those looking for help at SABA. She was given a despedida fit for someone who meant so much to SABA and to the public. We wish her the very best, and hope that her retirement is all she had hoped.
Finally, I could not leave off without giving my thanks to my compadre, Mr. Gilbert Vara, and the tireless efforts of Ms. Suzanne DeWalt and the officers and board of the San Antonio Bar Foundation. I am proud to say that the cooperation between SABA and the SABF this past year was unprecedented, and that I felt a welcomed assurance in speaking frankly to Gilbert about issues that I felt were of concern to SABA. I am confident that level of cooperation will continue into Mr. Teague’s term, and will fulfill what SABF’s original founders had in mind those many years ago. The good work done by SABF continues, with SABA continuing to rely upon the sage vision of SABF’s officers and board.
I would like to close by thanking you for letting me serve you this past year. It has been one of the greatest honors of my legal career, and I hope that I have helped make this bar association better than when I found it. What I will miss most is my frequent contact with fellow members of the bar and with the bar staff. I have always tried to put the bar’s interests first during my service, and I hope I succeeded in doing so. My fondest hope is that the San Antonio Bar Association continues to conduct its business knowing that just because other bar associations do something a certain way, that may not be best for San Antonio’s bar. It is because of this attitude that I believe the San Antonio Bar Association has always been a leader among other bar associations. I leave office confident that those that come after me will lead the way, and will continue to provide what its membership expects: the best in service, the first in leadership. Take care. And may God bless each and every one of you.