Rick Wardroup

George Rodriguez spent nearly two decades behind bars before a panel of forensic scientists determined that the analyst who testified at his trial was either incompetent or knowingly perjured himself. This revelation led to a 2004 audit of the Houston Police Crime Laboratory, which exposed a systemic pattern of poor training, data misinterpretation, and sample storage violations. In response, the Texas Legislature imposed an accreditation requirement onto Texas forensic science laboratories and created the Texas Forensic Science Commission (TFSC) to investigate allegations of negligence and misconduct.

The Commission is made of nine members appointed by the Governor of Texas – seven scientists, one prosecutor, and one defense attorney. The Commission, including TCDLA’s own Mark Daniel, are still today engaged in various forensic development initiatives, working collaboratively with stakeholders in the criminal justice system to improve education and training in forensic science and the law. Over time, the Texas Legislature has expanded and clarified the role ascribed to TFSC under TCCP 38.01. Currently, the Commission serves four main purposes: (1) investigate complaints of misconduct, (2) accredit crime laboratories, (3) adopt administrative rules for the use of certain disciplines in the courtroom, and, (4) as of 2019, license individual forensic analysts. 

1. Licensing Requirement

Prior to 2019, the accreditation requirement was already implemented for laboratories conducting forensic testing in Texas. The new Forensic Analyst Licensing Program now requires each individual acting as a forensic analyst to have their own individual license on top of the already existing requirement that the laboratory for which they work be accredited. The statute lays out which disciplines are subject to the licensing requirement:

License Required:

• Drug sample testing
• Toxicology
• Forensic Biology (DNA)
• Firearm & Toolmarks (ballistics)
• Document comparison
• Trace comparison (gunshot residue, footprints)

No License Required:

• Latent fingerprint examination
• Intoxilyzer breath test
• Digital examination
• Text excluded under Article 38.01
• Presumptive tests (for parole or probation violations)
• Text done primarily for scientific research or medical practice
• Forensic Pathology
• SANE examination
• Forensic anthropology, entomology, or botany
• Environmental Testing
• Accident reconstruction
• Serial number restoration
• Polygraph examination
• Voice recognition
• Statement analysis
• Forensic odontology
• STI testing
• Arson investigation
• Forensic photography
• Non-criminal paternity testing and tissue testing
• Forensic Psychology

The new forensic licensing program brings with it a number of benefits to defendants and defense attorneys. One benefit is the ability of the Commission to reprimand individuals after a determination that misconduct has occurred. TFSC now has the authority to revoke or suspend such a person’s license, or refuse to renew their license once it expires. If an analyst’s license is suspended under this provision, the Commission can put that individual on probation, and impose conditions on that probation such as requiring they report regularly to TFSC or take classes to improve the areas that are the basis of the discipline. Additionally, this licensing requirement leaves open a new vehicle by which we can exclude expert testimony. Going forward, we must always check the license requirements and status for each expert noticed by the State.

2. Public Database

Given its vast regulatory functions involving forensic sciences, TFSC maintains a wealth of information and data on forensic laboratories and laboratory personnel, including applications and materials on accreditation of forensic laboratories, as well as records relating to complaints, disclosures, serial number discrepancies, mistakes, errors, spills, misplaced or lost samples, misconduct, false entries and other laboratory noncompliance issues.  Texas law requires that all of these matters be reported to the Commission.

Much of this data and information has historically been available to the public through public information requests, which often involved a cumbersome and time-consuming process. However, TFSC announced this past April that it will be making all of this invaluable public information readily available through a public database hosted on its website. The database, which launched in June, is scheduled to be made accessible in November 2021. This database will be a vital resource for criminal defense attorneys across the state.

3. New Disciplines

The field of forensic science is ever evolving and growing, with new specialties and testing being developed continuously. Sometimes, this may lead to unreliable sciences being offered as proof in court. Some of the previously admitted sciences now determined to be unreliable include forensic odontology, hair microscopy, retrograde extrapolation, and arson investigation. There are two new areas that Texas criminal defense attorney must be aware of in the coming years: Rapid DNA Testing and Marijuana Testing.

Rapid DNA Testing: In 2018, the FBI approved Rapid DNA Identification – a DNA analysis developed by ANDE corporation which provides results in less than two hours. Such rapid testing would allow suspects to be swabbed at booking and their samples run through the database immediately. However, none of the entities performing this test are accredited by TFSC. Additionally, Rapid DNA Identification use at crime scenes also comes with its own limitations: crime scene DNA samples may be mixtures, or they may contain low quantity or quality DNA. Even if a quality sample is collected, there are currently no approved expert systems for crime scene samples, and law enforcement collecting crime scene samples do not have the education, training or experience necessary to assess the crime scene evidence and determine the type of testing to achieve the optimal results. As currently marketed, Rapid DNA analysis will become a law enforcement database with no restrictions, quality controls, or standards, making it largely unreliable.

Marijuana Testing: In December of 2018, the Texas Legislature passed the Agriculture Improvement Act, which legalized the industrial production of hemp. With the new law, THC concentrations under .3% are considered legal hemp, but the laboratories do not have the instrumentation to quantitate the amount of THC in a sample. In order to compensate for this lack of quantitation, some Texas laboratories have modified the DEA approach to cannabinoid testing, adding a visual examination for “cystolithic” or unicellular hairs. If the sample contains THC but the analyst cannot observe any hairs, the substance is reported as simply THC. If the sample contains THC and the analyst does observe hairs, the substance is reported as marijuana.

However, this method is tenuous under Texas law, which distinguishes between legal and illegal Cannabis products by the part of the plant the product is derived from. Since Texas law groups the derivatives of the plant with the portion of the plant it was derived from, the visual inspection component does not provide any meaningful information. This leaves the THC detection alone, without proper quantitation, as an insufficient method to distinguish between products originating from the stems and seeds; flowers and leaves; or preferentially extracted from cystolithic hairs.

Mark Daniel’s term as the TCDLA representative to the Commission ended on September 1, 2021. Mark was appointed to the Commission in November 2016. The Commission wouldn’t have been what is has been during his term and what it has grown to be without his participation and leadership. Mark has done an amazing job representing citizens accused, their counsel and thereby, all citizens of the State of Texas on the Commission. He used his special talents to move between the scientists and the representatives of legal interests to secure the implementation of many practices which make forensics in Texas more transparent than any other state in the union. Maybe the crowning jewel in Mark’s work at the Commission is the public data portal which is in the final days of beta-testing and modification. This portal will give practitioners access to the records of each licensed lab and lab worker along with any complaints self-disclosed or otherwise against a lab or an employee or associate thereof. The portal will also provide access to the disposition of the complaint. Counsel will have the information at her hand to confront witnesses who claim special forensic expertise in an efficient and effective fashion like never before. We couldn’t have been better served or more grateful as an association! Thank you, Mark!

Thank you to Bill Hines of Austin for serving us so well on the licensing advisory committee of the Texas Forensic Science Commission for the past three years. We are appreciative and grateful that he selflessly devoted his time in the pursuit of justice. He will be stepping away in January 2022, and will be replaced by Angelica Cogliano of Austin.

TCDLA’s Attorney Wellness Committee is holding 12-Step meetings via Zoom at 5:15 on various Wednesdays. We hope to make the meetings more regular, probably every other week. We ask that those who want to participate reserve a seat at the table by preregistering so they can receive a Zoom link for the meeting. The meeting isn’t restricted to a specific type of recovery. In fact, it is an open meeting so attendees don’t have to be practicing a program of recovery. Willingness to grow is what makes these meetings a success for groups and for individuals.

Participants who want to maintain their anonymity can do so by not activating the video component of the Zoom program. In order to maintain complete anonymity, you will want to modify the screen name that is associated with your account.

What is a 12-Step Meeting?

A 12-Step meeting is a meeting of people, most of whom are “working a program of recovery.”

Programs of Recovery include:

1. Alcoholics Anonymous;
2. Narcotics Anonymous;
3. Overeaters Anonymous;
4. Cocaine Anonymous;
5. Debtors Anonymous;
6. Co-Dependents Anonymous; and many others.

A 12-Step meeting is described generally as a discussion among a group of people who seek relief from a pattern of behavior which has resulted in consequences which are not acceptable, or, if acceptable in the past, are no longer acceptable. Often the meeting will begin with the reading of a meditation chosen by the group. The reading is chosen for its potential to encourage a discussion of a topic likely to develop insight into the behavior or circumstances which may underly engaging in maladaptive behaviors. After the reading, one person starts the discussion by sharing thoughts that the reading brought to mind or by sharing their emotional status as it relates to their pursuit of recovery. The next speaker may be sitting next to the first speaker or may be selected in any one of several fashions. Each speaker elaborates on how the reading or the other attendees’ comments effected them. Attendees are free to “pass” if they don’t wish to share. The meeting usually gives all attendees an opportunity to share or ends at a certain, pre-arranged time. The meeting usually closes with a prayer or moment of silent meditation.

Why a 12-Step Meeting?

It is probably clear from the list of applications of the 12 steps that they are applied to many and diverse problematical behaviors and ways of thinking. A surprising element of the usefulness of the steps may be that, in most cases, the cessation of the maladaptive behaviors which bring us into the room is not the basis for the recovery sought. “Our liquor was but a symptom.” Alcoholics Anonymous (The Big Book) p. 64. Anxiety and fear commonly cause the behavior we are trying to end. That is to say that our thinking makes us sick!

It is said that there are many promises in the Big Book of Alcoholics Anonymous which are brought about by 12-step principles. The promises are the result of “working the steps,” and becoming engaged in the work of the program of recovery. The most well-known collection of promises are found on pages 83 and 84 of the Big Book. This section of the book reads,

“We are going to know a new freedom and a new happiness. We will not regret the past nor wish to shut the door on it. We will comprehend the word serenity and will know peace. No matter how far down the scale we have gone, we will see how our experience can benefit others. That feeling of usefulness and self-pity will disappear. We will lose interest in selfish things and gain interest in our fellows. Self-seeking will slip away. Our whole attitude and outlook upon life will change. Fear of people and of economic insecurity will leave us. We will intuitively know how to handle situations which used to baffle us. We will suddenly realize that God is doing for us what we could not so for ourselves.”

Who should attend?

If you are currently working a program of recovery which uses one form or another of the Twelve Steps, you are encouraged to bring your recovery to this venue. If you would like to be a part of a 12-step program of recovery and have not tried it yet, we would love to have you. As you may know, or are likely to come to know, there are gifts that each of us give each other when we attend meetings. One gift we receive at meetings like this is the welcoming knowledge that we are not alone. I am usually unable to guess what I need from a meeting and have even less awareness of what I have to give to another attendee and that is when the magic happens.

What can we look forward to?

• A community of caring people.
• A group comprised of people who go way beneath the surface to discover how they really feel and why they make the choices they make.
• A collection of friends that you may not have known before the meeting, but who you come to esteem and respect at depth almost immediately.

Watch for invitations to the meetings on the TCDLA listserve and make your reservations early. I hope to see many of you as we seek to “trudge the road of happy destiny” and learn to accept ourselves.

*I don’t claim to have any particularly deep understanding of any program of recovery, including the program of Alcoholics Anonymous. This is true despite having attended between 3 and 8 meetings per week for a little over 26 years. I have been told that “there are no experts in Alcoholics Anonymous” and I believe that to be the truth both generally and specifically of me.

Stress and Resiliency

The adversarial system places litigators in conflict with another lawyer, a judge, and often, a client and his family. This basic nature of law practice is one of the things that makes our profession so different and so much more stressful than other challenging professions. Doubtless, the challenge of “representing” another person and effecting the consequences of the decisions made by a court with our work are as stress‑inducing as any other profession. Doctors certainly have significant stress in administering to the medical needs of their patients, but they don’t face another doctor challenging every decision made in the treatment. Statistics show that lawyers abuse alcohol and other substances more than other professions, suffer from anxiety and depression more often than other professions, and die by suicide more often than other professions.

In order to survive the practice of law, we must realize what stress is, what it does for and to us, how to safely respond to it, and how to respond if we don’t do well when we first face it. Not all stress is bad. Both physical and mental stress can improve our performance so long as the stress is of an appropriate duration and intensity. An appropriate stress response comprises introduction of a stressor, resistance (including mobilizing to withstand the stress), exhaustion (depletion of body’s resources), recovery (return to homeostasis). In their appropriate form the resistance and exhaustion develop strength. When this isn’t the pattern and the stressor continues such that there is stress beyond exhaustion, chronic stress is the result.

Even under chronic physical stress conditions there comes a time that our bodies quit responding and struggling against the resistance. We may develop a cramp in a muscle or run into some other wall that stops the physical activity. This isn’t the case with mental and emotional stress. There is no protective response that stops our attempts to respond to the incoming stress. Human beings are, therefore, capable of “stressing” beyond the breaking point. Chronic stress, not handled appropriately, can result in burnout. The choices, therefore are avoiding stress where we can, limiting stress when we can, taking time to engage in activities that help us recover from stress when it can’t be helped, and avoiding excessive use of substances or processes which might become addictive.

Though there is no universal “right way” to accomplish the results listed above, there are processes which can mitigate stress and accelerate recovery. The first step toward surviving the stress of law practice is recognizing what stress is and being aware when it overtakes us. In order to identify the stress, we become aware of what is likely to cause stress in our life and practice. Thereafter, we learn skills to manage the stress to the degree possible, learn and use skills to recover from stress and learn and practice skills to avoid or recover from burnout.

First Things First

If there are two words that we would choose to live by, we could be far less stressed than we commonly are. SLOW DOWN! That’s all, move slower, and think more. To borrow lyrics from the Hamilton Broadway show, “talk less, smile more. . .” or, for the more mature lawyers, from Simon and Garfunkel, “Slow down, you move too fast.” When we research wellness we regularly read about mindfulness. One can’t be mindful while moving at warp speed like we often do.

Causes of Stress in Lawyers

The sources of stress for lawyers are legion. In addition to the stresses listed above, we have the human challenges common to marital relationships, familial relationships, financial challenges, and health issues. We are confronted by secondary trauma from dealing with anger, frustration, and the emotions of our clients; we usually have a sense of perfectionism, we act as if everything has to be done exactly right or we risk absolute failure; we never feel that our clients are truly pleased with our work; we sometimes act in a way that isn’t aligned with our core values; and, we are often working long hours which aren’t physically, mentally or emotionally sustainable.

Avoidance of Stressors

There are stresses that we have the capacity to avoid or to limit. The most prevalent stressor that we have the opportunity to avoid is anger. Our work often leads to heated discussions about the facts we are dealing with, the law applicable to them or the appropriate disposition of a case. We are likely to feel our blood pressure rise and a throbbing in our temples.

Other changes, which we often don’t notice, include our vision becoming more constricted and our decision‑making becoming “split‑second.” These are the common symptoms of the “fight or flight” response. One of the things these changes signal is that our brain is changing the decision‑ making locus from the pre‑frontal cortex to the amygdala ‑ from the large, advanced, human brain to the reptile brain. This part of the brain is extremely fast and quite narrow in its capability. When it is engaged, it always acts as if we are being threatened with serious injury or death. The reptile brain made us able to evolve from reptiles to the higher species, but it is a dangerous place to be making decisions that will have long‑term consequences.

Hurriedness is another stressor that we have power over. Over the years, thousands of “time saving” applications and devices have been marketed. There is no way to save or create more time; there are only so many hours in a day and only so much can be done in any given hour. Far from giving us more time for ourselves, reliance on the new technology complicates “down time” by providing entertainment or accessibility 24 hours a day. We seldom schedule time to think or to meditate. Since this is a self‑imposed stressor, we can integrate it to the degree and with the effectiveness we commit to. Most of us have considered meditation and the majority of those that have, have quit after a short time because their mind wouldn’t slow down and let them be. It is difficult! The good news is that one needn’t be a “perfect” meditator to benefit from the effort. Research has shown that only minutes a day yield significant benefits. Experience also shows that staying with small successes builds to large successes.

Realize Limitations

Know yourself and listen to your body. J.K. Rowling, of Harry Potter fame, has said, “It is impossible to live without failing at something, unless you live so cautiously that you might as well not have lived at all.” One of my favorite Alcoholics Anonymous speakers pointed out in a recorded talk that “the only thing a perfectionist is ever going to be is a failure.” Research has shown that it is possible to grow from failure. When we reach our limit, we need to learn to stop and either choose a different route or come back when we are in better shape. We can improve our “conditioning” by a course of study in a fashion similar to the way we improve our physical condition by exercise. If the end we reach is a real end, though, we need to recognize it and stop the battle. Chronic stress brings burnout and all the potential bad consequences.

Optimism is the Key

“Deadlines and commitments, what to leave in and what to leave out, against the wind . . .” Bob Seger and the Silver Bullet Band described the plight of the lawyer well in their 1980 hit. For most of us, a positive attitude doesn’t come easily. Part of that is likely because we have to analyze every fact and its probable effect in every case. We end up doing comparisons of everything in our life. We sometimes find ourselves “comparing our insides to someone else’s outsides” in AA parlance. There are times when every other lawyer at the courthouse looks more content, competent, and successful than we feel. We can develop doubts of our skills and our value. Our work is being judged, sometimes fairly and sometimes unfairly by judges, other lawyers, clients, clients’ families, and the reading public if you or your case end up in the news. Our responses, especially when we aren’t successful in our undertaking, make the difference between what one writer calls learned helplessness and resilience. Research has shown that one way we can improve our optimism is to be grateful. Making a gratitude list daily and really digging down to the emotion while we do so can support an outlook of optimism. I have found myself doing a perfunctory gratitude list, just scraping off the top, and my experience is that that type of list is much less effective. We can benefit from taking the time to fully engage our gratitude and realize the gifts we have received in the past 24 hours.

Prioritize

Prioritize and then set reasonable goals. My wife accuses me of thinking that I can arrive at one location at the same time I leave another. I am notorious for working to within five minutes of a meeting and leaving for the meeting, which is a 10‑minute drive, and not believing that I arrived late. This is a small thing, but it moves me from my rational, thinking brain into my fear‑based fight or flight brain. That change narrows my vision and limits alternatives and builds suspected adverse results. If I will take the time to plan and prioritize my day, I can avoid “running around like a chicken with my head cut off.” One of my favorite excuses for not planning and prioritizing is that it takes time. While it is true that planning is work and it does take time, its net result is often that we are more efficient and end up not causing stress for ourselves.

Exercise

Exercise in moderation. This is easily said to an attorney but hard to practice if you are one like me. Competition probably fueled our desire to be admitted to law school. It certainly drove us during law school, and it isn’t likely that it is diminished when we started practice. Often our “driven” nature makes it difficult for people to get near us or understand us when they do. If we take the competitive nature that got us through law school into our exercise program, there is a real likelihood that we will end up injured. This is especially true for the more mature lawyers like me. I was never going to be satisfied that I was a cyclist until I finished the Hotter ‘N Hell Hundred in Wichita Falls. Then one completion of the test wasn’t enough. I hadn’t ridden fast enough, so I did it each year for the next couple. I broke my hip in April of this year when I fell on my bicycle. My most fervent hope is that I can complete the H‘NH next year. I tell you this so you know that I have a hard time following my own suggestions. The truth is that most everything I know about stress management, I learned by doing it wrong. So, do as I say, not as I do! The goal should be activity rather than perfection.

Take Vacations

This is the “smile more” from the Hamilton song. We need to take real vacations, not “working vacations” where we take our computers and check in with the office in the morning and again in the afternoon. Many of the vacations I took with my kids may have been vacations for them but they wouldn’t have qualified as “an extended period of leisure and recreation, especially one spent away from home,” a vacation according to the Oxford Dictionary, for me. Over the years, it has seemed to me that there was always more to do than I had time to do it. In response, I would combine things that seemed to nearly fit together. Time with children and time away from the office were closely related but I fowled both of them by taking work along with me. We need to truly vacate when we take vacation if we want to feel the benefits that they can provide. The benefits aren’t a luxury, they are necessary. Similar to sleep, we can’t do without a break.

Share Feelings with a Trusted Person

It is probably best to have a friend who isn’t a lawyer to talk to. Even when we lawyers understand stress, we accept way more than we should. The problem of venting with a colleague may be that they hear you and either think or say, “I’m having it much tougher than he is. . . ” Sharing with a “civilian” can give another perspective. It is appropriate to consider, too, whether the civilian is a spouse or significant other. It is often a good idea to share with these people but sometimes consider sharing with them after talking with an unrelated person. Spouses are likely to be affected similarly by the consequences of the issue shared as we are so their response may not be much more objective than our own. A member of a church congregation or a social group or, as in my case, another member of Alcoholics Anonymous, is more likely to give the dispassionate consideration of your controversy and bounce more creative responses back to us than another who is affected by the same events which affect us.

Seek Help

I was in therapy for years just before and during my early sobriety. My therapist was fabulous and one thing that she told me that personalized her to me was her belief that any therapist needed to be in counseling with another professional. I didn’t really understand referred trauma and emotional fatigue at that time, but it still made intuitive sense and made me trust her even more. What I know today is that it isn’t crazy people who go to counselors, but it is often the few who stay sane. Life is complex, especially for people who serve the public. In the same fashion that we expect a person who tries to defend himself in a DWI case to crash and burn, we are likely to suffer the same result when we try to diagnose and treat our own stress.

Burnout

You might be burning out if:

• You end each workday highly stressed;
• Feel a knot in your stomach on Sunday night;
• Find yourself disengaging from work, family, friends, and health; or
• Have ulcers, upset stomach, headaches, backaches, colitis, lack of concentration, rage, and even potentially a heart

Burnout is characterized by physical and emotional exhaustion, feelings of cynicism and detachment, and a sense that nothing you do makes a difference. Mindtool.com suggests 5 responses to burnout: (1) thinking about the “why,” (2) focus on the basics, (3) taking a vacation or leave of absence, (4) say “no,” and (5) practice positive thinking. You can see that some of these are extensions of or more imperative applications of some of the suggestions made above. A couple of these suggestions, though, need further development.

What is the “why?” Are there specifics about your work or your life that leave you with resentments? Sometimes the cause of the resentment is a person and other times they are circumstances or governmental entities (IRS included). When you come to an understanding of what you resent, it becomes possible to address removing it. Sometimes we can remove the object of the resentment and other times, we have to change the way we feel about it. This takes focus and commitment. Vague feelings of “I’ll do better. . .” aren’t going to work, and it may take a therapist’s assistance to dig the right hole.

Nancy Reagan wanted us to “Just say no” in her anti‑drug campaign back in the day. While I have reservations about how successful that campaign was, I absolutely know that a well‑placed “no” goes a long way toward freedom from many resentments. People will make requests of us so long as we agree to take on the burden they offer. Once the challenge is “our problem” the referring party can move on, free from the burden and the responsibility it carried. We have to choose what we can and want to do. We need to reserve a little time in our life in case a new and wonderful opportunity comes. Every time we say no to someone else, we are saying yes to ourselves!

Addiction

The effect of a drink or use of a recreational drug is relatively immediate and the sensation of stress changes. The feeling we end up with may not be any better than the stress we were feeling, but it is different, and sometimes that is enough. Litigators must take note of how and when we drink or use prescription medications. It isn’t unusual to notice a pattern of heavier use in times of stress. Not everyone who drinks is, or is likely to become, an alcoholic, even if they drink more than they should at times. Neither is everyone who uses drugs likely to become addicted. There are other consequences of use though, both physical and emotional. When use becomes addiction, the consequences multiply and become more complicated. Addiction is defined as a chronic, relapsing disease, and recovery may be a long and winding road. Recovery from addiction is supported by the State Bar and the Lawyers Assistance Program. It is also supported by individual counseling and numerous 12‑step meetings. The first step toward recovery is “to quit digging” the hole of despair, fear, and remorse for just long enough to engage another person and then to lean on the other person until we can walk on our own.

The foregoing list of challenges and responses are in no way lists of everything which could populate these categories. Hopefully, they can give a toehold on the challenge you face. The TCDLA Attorney Wellness Committee is composed of a group of criminal defense litigators who have an interest in, and a commitment to, helping other lawyers with issues such as those listed above. These lawyers and their email addresses are listed below. The Texas Lawyers Assistance Program also provides confidential assistance and referral. They can be reached at: tlaphelps.org or (800)343‑TLAP (8527).

Rick Wardroup |
Andrew Herreth |
William Stith |
Coretta Graham |
Savannah Gonzalez |
Amy Blalock |
Mark Griffith |
Amy Boylan |
Shana Stein‑Faulhaber |

“My name’s Rick and I’m an alcoholic.” These words were the key to my first involvement with the Texas Lawyers Assistance Program, TLAP. By the time I said them at a TLAP function, I had become used to doing so at Alcoholics Anonymous meetings in and around Lubbock. I had a lawyer friend, though, who knew there were a group of lawyers in Texas who did what they could to support one another’s recovery and to help colleagues deal with the stress of the practice of law in pro-social ways in order to avoid the need for a program of recovery. Mike B. told me about a convention in Austin that combined training for TLAP volunteers, of which I was unaware, and meetings for Lawyers Concerned for Lawyers, a group very loosely related to TLAP but not part of the State Bar, who were in recovery from mental illnesses, alcoholism, addiction to substances, and suicidal ideation.

Those of you who know me know I felt right at home immediately! As it turned out, Mike wasn’t able to make it to the convention, so I was on my own to a greater or lesser degree. I met people there who had histories like mine and who were living lives happy, joyous and free, even in the practice of law. In fact, even if they weren’t practicing law right then due to grievance issues. I met people who had been disbarred and earned their way back into the profession, people who had voluntarily left the profession but kept active in the recovery of other lawyers, and those who weren’t sure whether or where they might fit in.

At the first convention, there were yoga classes in the morning, AA-type meetings of LCL members throughout the day, and speaker meetings a couple times a day. There was also training designed to help us help our brothers and sisters who struggled with the issues that got us there. This was the first time I realized what Quinn Bracket, a truly venerable Lubbock lawyer, had done for me a little over a year before. He knew what I needed to do and who I needed to know in order to survive the death spiral I had put my law practice into. He had a patience and depth of understanding that I had only seen in a counselor whom I had paid for years to listen to me lie to her about my issues. Quinn was a stabilizing force in Lubbock for many lawyers who were trying to lose their way.

The Texas Lawyers’ Assistance Program (TLAP) has been an active program of the State Bar since 1989. Chris Ritter is the third director to head up the program. What follows is Chris’ compilation of the history of TLAP, edited for length.

Early Years

A flurry of articles and research in the late 1980s and early 1990s documented the secret that some already knew: the high incidence of substance abuse and mental health disorders in the legal profession. While generally accepted figures at that time estimated that 10 to 11 percent of the general population in this country suffered from the disease of substance dependence, surveys in Arizona, Washington, and Maryland indicated that the illness affected 15 to 18 percent of lawyers. A study by the Johns Hopkins University School of Medicine in 1990 found that, of all the professions surveyed, lawyers had the highest rate of clinical depression. A 1992 study by the National Institute for Occupational Safety and Health indicated that male lawyers in the United States were twice as likely to commit suicide than men in the general population. Unfortunately, many involved with lawyer assistance programs across the country anecdotally echoed that fact: suicide among lawyers was all too common.

Establishment of Lawyer Assistance Programs

Lawyer assistance programs in some form or another have been around for a long time. Many states report that independent, grassroots lawyers-concerned-for-lawyers groups have been  operating discretely and effectively for 20 years. Grounded in the principles of service work and anonymity from Alcoholics Anonymous and other 12-step programs, these programs fashioned responses to the crisis of lawyers and colleagues in trouble with alcohol and drugs. TLAP credits the lawyer-support groups in Dallas and Houston as two of the longest-running grassroots organizations in the state. Both groups report a history of meetings dating back to the early 1980s. No doubt there were other such support groups in existence throughout the state.

In 1989, as part of the national movement toward instituting employee- and peer-assistance programs, the State Bar of Texas institutionalized outreach to lawyers by creating and funding TLAP. Mindful that the goal of the organization was to provide a safe and confidential place for lawyers to seek help for addiction and other disorders, TLAP was authorized as the approved peer-assistance program for lawyers in Texas; as such, it benefits from the statutory confidentiality and immunity protections afforded peer-assistance programs under the Texas Health and Safety Code. Texas was one of a handful of similar formal programs in the nation. In 1988, when the American Bar Association (ABA) created the Commission on Impaired Attorneys (it was renamed the Commission on Lawyer Assistance Programs in 1996), there were only four states that had formal statewide lawyer-assistance programs. Today, all 50 states, the Canadian provinces, and Great Britain have comprehensive assistance programs, most with paid directors and staff.

At their core, lawyer-assistance programs seek to provide outreach, support, peer assistance, and confidentiality for communications and information relating to actions taken by staff, volunteers, and participating lawyers, judges, and law students. Separation from the discipline authority for lawyers was identified as an early prerequisite for many lawyer-assistance programs and the Texas program was no exception. Agreements between the Texas disciplinary system and TLAP were hammered out long ago: TLAP staff and volunteers remain independent of the disciplinary process and do not advocate for or against a lawyer who finds him or herself in that system. The discipline system, in turn, respects and appreciates the confidentiality of all communications and actions of TLAP.

Attorney-Discipline Issues

The issue of alcoholism, drug addiction, and mental health disorders within the legal profession gets the most attention when juxtaposed against and within the disciplinary system. In 1987, as lawyer peer-assistance programs were being put in place in different jurisdictions across the United States, controversy raged over whether alcoholism was a disease or simply a character flaw. In the midst of these arguments came a U.S. Court of Appeals for the District of Columbia decision, In re Kersey, 520 A.2d 321 (1987), which stated that a lawyer’s alcoholism could be considered in mitigation for disciplinary offenses. This was a watershed moment for all concerned as it was estimated at the time that a majority of attorney-discipline cases involved alcoholism or substance dependency. Balancing the system’s need to protect the public, deter future unethical conduct, and maintain the integrity of the profession with the need to acknowledge and address the underlying causes of the conduct became the fulcrum on which the decisions of courts and disciplinary systems would rest. Eventually, an acknowledgment of the scope and the validity of the issues required that all jurisdictions take some measure to help with the identification, treatment, and disposition of cases involving impairment.

The disciplinary system in Texas was particularly responsive to developments in the understanding of alcoholism and the addiction process and the fact that they comprised illnesses and not moral failings. In 1992, the State Bar of Texas provided that an attorney’s demonstration of his or her good-faith recovery from these disorders may be considered as a mitigating factor when imposing sanctions for disciplinary adjudications. The disciplinary system in Texas also established a unique avenue for disposition of cases involving impairment that rose to the level of a disability. Monitoring, diversion, and education became the watchwords for this time period and the development of the Texas Professionalism Enhancement Program and, more recently, the Client Attorney Assistance Program further demonstrate the state bar’s commitment to the human issues underlying the rules violations in disciplinary cases.

The Future of Lawyer-Assistance Programs

The nature of lawyer-assistance programs is changing. The 2002 ABA Commission on Lawyer Assistance Programs survey of lawyer-assistance programs indicates that a majority of  lawyer-assistance programs have moved to provide outreach services for lawyers with mental health issues as well as the traditional outreach to those dealing with alcohol, drugs, or other addictions.

Texas has been at the forefront of this challenge. Since the mid 1990s, TLAP has offered its services to lawyers, judges, and law students who are challenged by mental health and substance abuse disorders. TLAP statistics indicate that once TLAP advertised that its outreach included mental health issues, the number of these cases increased to a 50/50 split between substance abuse disorders and mental health concerns. Today, a lawyer with complex, poly-substance abuse and mental health disorders is more the norm than the exception. While the number of cases increases yearly, pure addiction cases and pure mental health cases make up a smaller portion of the TLAP caseload. The response remains the same: crisis assistance and counseling, education, peer assistance, intervention, referral, and outreach.

If the future holds anything, it holds the promise of continued success, collaboration, and innovation. Here are a few noteworthy developments:

• The ABA has adopted a 2004 Model Lawyer Assistance Program that speaks to the issues of concern: addictions, mental health disorders, and quality-of-life issues.

• More and more lawyer assistance programs are being asked to directly monitor lawyers or develop monitor programs for law firms, disciplinary systems, and boards of law examiners.

• The State Bar of California has produced an innovative outreach system that, in the words of Deputy Trial Counsel for the State Bar of California Cydney Batchelor, “has produced astonishing changes in the lawyers’ professional and personal lives.”

• In 2003, the ABA Standing Committee on Ethics and Professional Responsibility issued two ethics opinions regarding a lawyer’s duty to report the misconduct of another lawyer and in doing so recognized the assistance of lawyer-assistance programs throughout the United States.

• The ABA National Legal Malpractice Conference has developed and presented a series of seminars related to law firms and impaired lawyers.

Until very recently, I attended the TLAP/LCL Convention every summer, only missing because of conflicting responsibilities. Until my last child moved out of the house, the kids accompanied me on the trip each year. It was a great way for me to celebrate recovery, share it and a trip with my children, and enjoy the friends I’d made among whom I trudge the road to happy destiny. Maybe the single most personally changing thing that ever happened to me at these celebrations was meeting and getting to know Kelly Pace at depth. He was committed to the cause of TLAP and LCL, serving on both the State Bar Committee and the LCL Board of Directors. His example of a lawyer with a busy trial practice and the associated stresses and strains who stays above the fray with an eye always open for the colleague who is in need challenges me and informs me today. Kelly was honored with the Ralph Mock Award, the highest award given by TLAP and LCL, signifying incredible service to recovering lawyers for significant periods of time, and I now have the honor of serving on the State Bar Committee for Lawyers Assistance and the Board of Directors for LCL. I hope to share with others what Kelly and many at TLAP and LCL have freely given me.

Lubbock’s LCL group hosts a hybrid meeting each Friday during lunch. Our fearless leader, Bob N., has arranged for us to use a state bar conference line to include call-ins with those of us who can meet in person at his office. It is a weekly home for eight to 12 practicing lawyers, law students, and lawyers working to earn their licenses back, who share their experiences, strength, and hope with one another. There are very real reasons to be proud of our state bar, its Lawyers Assistance Program, and the grassroots LCL groups around the state!