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David W. Kee, Esq.                                       
Interviewed December 13, 2004 in Portland, Maine.
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The Maine Assistance Program for Lawyers and Judges:
Helping Those with Substance Abuse
and Mental Health Issues
© Copyright 2001-2014. Pamela Trudo. All rights reserved.

Q:  Why did you join the legal profession?

A:  I knew I wanted to be a lawyer when I was thirteen years old. I was the only child in my family and my father was concerned that I didn’t have much interest in the same things other boys in the neighborhood had. My interests seemed to be minimal as far as my father could see. So one day I came home and I said, “I think I’m going to be a lawyer.”  And I never seriously deviated from it.

Q:  What is your legal background?

A:  I graduated from the West Virginia University College of Law in 1966, practiced a couple of years in West Virginia, and then came to Maine. I had been in Maine while in the army in the early 1960’s and had fallen in love with it. I got a teaching/administrative job at Maine Maritime Academy for a couple of years.

I then ran for county attorney and was overwhelmingly elected. It didn’t hurt that I didn’t have any opposition. I was county attorney for a couple of years and then practiced law in Bucksport for about thirty years.  It was a general practice: family law, criminal law, and residential property law. 

I sold out my interest in my practice in 1998 and didn’t do anything for about a year. I then decided I wanted to do something and took a job at a domestic violence project as counsel for a couple of years. Then this job opened up.

Q:  The job that you have now is what?

A:  I am the director of the Maine Assistance Program for Lawyers and Judges (MAP).

Q:  Full time?

A:  Full time.

Q:  Would you explain what MAP is?

A:  The program deals with both substance abuse issues and mental health issues within the legal profession, both lawyers and judges. In one sense the program is a little like an employee assistance program, but our program is considerably more than that because we are proactive and we are very supportive after treatment.

The Maine Assistance Program was created by our Maine supreme judicial court by rule and was enacted in September of 2002. We became operational in May of 2003 with my hiring as the director. Bill Cote of Lewiston, who is now the chair of the commission, was instrumental in laying the group work for MAP.

The program has three functions: to protect the general public; to get the help for the impaired lawyer; and to get information out about substance abuse issues and mental health issues. We’re the forty-first state to have a fully funded program.

Q:  How did you get to be chosen as director?

A:  I had twenty years of experience with its predecessor, the Maine State Bar Association’s substance abuse committee, which came into existence in 1984. I was either the chair or co-chair of that committee most of those twenty years. That program only dealt with substance abuse issues. We had a cadre of about twenty-five volunteers around the state who volunteered their time to offer support and interventions for people who were afflicted with substance abuse issues.

I think my being on the Maine State Bar Association's substance abuse committee was a big reason for getting the nod for becoming the director of the Maine Assistance Program. I also was one of ten national commissioners on the American Bar Association commission for lawyer assistance programs.

Q:  When were you on the ABA commission?

A:  From 2001 to 2004.

Q:  I’m interested in hearing how the MSBA substance abuse committee for lawyers came about. Was it part of a trend at the time in the 1980's?

A:  Around the country there were mostly volunteer programs.  In Maine in 1984 several volunteer programs existed around the state and it looked like Maine could profit from a volunteer program through the state bar association.  Fifteen or twenty lawyers in recovery, of whom I was one, had our first meeting and we were willing to donate some of our time to this important issue. Ralph Lancaster was president of the Maine State Bar Association and is known as the founding father.

Q:  Were the volunteers mostly people who were in recovery and had experience?

A:  Yes, mostly. The committee did a lot of good stuff. People worked really hard with it, but everyone who was a volunteer had other jobs. We were practicing law. Consequently, there was a gap between the time of a call and the time someone would get to the caller. There was nobody to coordinate the program on a state-wide basis. There wasn’t as much time to deal with the issues and there wasn’t a support structure for when the lawyer was getting the help or after the lawyer had gotten the help.

Q:  Were there confidentiality issues?

A:  There were, but by procedural rules the volunteer state bar association substance abuse committee was excluded from the so-called “squeal rule”, as were the volunteers. In other words, if we were dealing with somebody, we did not have the same requirement to report the conduct with a couple of exceptions.

When the new Maine Assistance Program was promulgated, and thanks to the efforts of Ralph Lancaster, we received legislative immunity through the state legislature as well as confidentiality through the Maine supreme court rule establishing the MAP program. We have legislative immunity and supreme court rule immunity as long as we’re operating within the function of our program. Confidentiality is included in the rule.

Q:  Who funds the Maine Assistance Program?

A:  The lawyers fund it. Every lawyer pays a yearly assessment to the board of bar overseers for the client liability fund. A piece of that assessment helps to fund the Maine Assistance Program. Our first three operational years, through June of 2005, the program has been funded according to the Maine supreme court rule.

Q:  Any other funding?

A:  The second year of operation the supreme court raised the board of bar overseers assessment from each Maine attorney by ten dollars and that ten dollars, along with some of the client liability fund, came to fund us through June of 2005.

Q: Are you well-funded?

A:  We think the program is being well received by the bar as well as the judiciary and we’re cautiously optimistic that we will continue to be funded after June 2005. We hope to strengthen our existing program with more volunteer training and educational efforts.

Q:  So it’s a question mark after June 2005?

A:  It is entirely up to the Maine supreme court, which establishes our funding. The rule shows that the supreme court wanted the program to seek out private funding also. It was part of our charge when the program was created. We’re taking a good look at that. There is a commission meeting today and that is one of the matters on the agenda.

Q:  There is no private funding now?

A:  There is no private funding at this point. It’s difficult because most of the grants are for start-up projects and, of course, almost all of the grants are for one year. We became a 501(c) (3) nonprofit organization a few months ago with the supreme court’s approval because we realized if we were going to be serious . . . and we are . . . about the private funding it would be best to be a nonprofit. We’re hopeful. We don’t take anything for granted and the commissioners are working hard on the funding issues.

Q:  You state that from your perception MAP has been well received?

A:  Our first year and one-half went beyond our expectations in that we now have over one hundred and fifty participants in the program. We are pleased with those numbers.

According to statistics we see across the country, substance abuse issues hit about ten percent of the general population. In the legal profession it seems to be about fifteen percent. According to a Johns Hopkins study, we are the most depressed of the professions. Our referrals are running about fifty-fifty between substance abuse and mental health issues, with clinical depression and job-related stress the two leading mental health issues.

I tell all the lawyer groups, and I’ve talked to every lawyer group in the state, that there is no bad side to calling us, no down side. Nobody likes to stick their nose into somebody else’s business and that’s nowhere truer than it is in New England; but if somebody calls us, there’s no report back to the referring source as to what happened. Our governing commission receives no names. We have pretty much surrounded ourselves with confidentiality.

Q:  So someone who makes a referral can’t call back and find out what happened?

A:  That’s right, generally speaking. Now if it’s a mental health issue where there is a suicide possibility, I would call back so that they could consider other options if the lawyer refused our services. We left an opening in our practices and procedures policies allowing us to use our discretion in these areas.

Q:  Who usually makes the referral?

A:  About fifty percent are self referrals and fifty percent are from outside sources, a large majority of those being from lawyers concerned about other lawyers. The board of bar overseers calls us both formally and informally. If it is an informal call, it may not be anything that rises to the level of a prosecutable offense but something is wrong. Even when it comes through the board of bar overseers, the participant doesn’t know the source unless it requires a formal monitoring contract.

We’re often asked: is it my partner? They are quite accepting of the answer that this program would not work as well if people thought the source was going to be revealed.

Q:  If someone wants to call, is it easy to find the telephone number?

A:  I hope so. Brochures have been mailed twice to all the members of the Maine State Bar Association as well as to statewide mental health and substance abuse service providers.

Q:  What if the person is not a lawyer?

A:  What often happens with the non-lawyer is that they call the state bar association and the state bar association, of course, knows how to get in touch with us.

Q:  What happens after the phone call?

A:  One of the volunteers or I contact that lawyer. We always make contact within the first few days, even if it is an outside referral. This program would not exist without the support of our very dedicated volunteers throughout the state.

If it’s a self-referral, I follow up almost immediately. It takes a lot of courage to call. With both substance abuse and mental health issues it doesn’t take very long for the person to talk themselves out of getting help. The call is certainly reaching out for help.

I have two signs on my desk. One says, “You’re not a clinician,” and the other one says “Do no harm.” My job is to get them to the help they need and to follow up with support.

We have professional resources throughout the state, which have a history of working with lawyers, and about ninety-five percent of them have been referred to us by lawyers. Every group I talk to I make the pitch. I say: “You know people in every profession who should be doing something else, but you also know who is a really good substance abuse provider and what the good psychiatric and psychological avenues are. Who are these people?” Invariably I’ll get a couple calls. And then I go see those professionals, interview them, and ask their history.  We have about one hundred twenty-five service providers on our resource list now.

Q:  If someone goes to an evaluator, who pays for the evaluation?

A:  The lawyer does. We don’t have the funds to assist with the evaluation. But some of the providers have been willing to do the evaluation on a sliding scale because a lot of times the people who are in trouble have financial issues also. We’ve been very fortunate. I’ve had four psychiatrists give me their home phone numbers.

Q:  Do you ever have a referral that turns out to be a prank?

A:  Never. People have that concern. I’ve had twenty years’ experience with the volunteer committee. Never have I seen a set-up. Now there have been situations, although they’re few in number, where the concerns were ill-founded. The referral wasn’t malicious, but what was going on wasn’t a substance abuse issue or a mental health issue. Those are unusual.

Physical problems show up. Hand shaking doesn’t necessarily mean substance abuse. It could be too much coffee. We’ve made a decision philosophically. It would be difficult to do a lot of investigating without raising a lot of red flags and not breaking the confidentiality. So we don’t do that. We take the chance of going to see somebody.

Not everybody jumps up and says, “Thank God you’re here and I’m ready to get help.” People will say, “Gee, I really don’t think I have a problem.” Maybe they don’t. You can’t really measure the ripple effect. I think that we have visited people who maybe haven’t crossed that line into chemical dependency. Maybe they have been alcohol users or abusers for an extended period of time and, as a result of the information we get to them, are better able to control their behavior. Or maybe they go to other sources unknown to us. That happens on occasion.

There are a number of people that drink themselves into their grave or don’t get help with their mental health issues and suffer the painful consequences or continue to struggle with it.

Q:  When you ask for an assessment, do they generally agree with you and think it is a good idea?

A:  It’s put to them to lay this issue to rest, to find out. We do have some statistics in our annual report that indicate how many have gone to a rehab, for example; how many evaluations have occurred; how many have gone into some other kind of recovery program. The statistics are difficult. Just because somebody’s gone into a rehab doesn’t mean they’ve successfully recovered or stayed recovered from whatever the issue is.

There’s no one of the one hundred and fifty participants that I’m not in pretty close contact with throughout the year. Of those who are not being tested, either voluntarily or mandatorily, I usually have permission to talk to their sponsors or mental health service providers.

Q:  How long do you follow up on the participants? One year?

A:  If we sign a contract with them, the average term of the contract is for five years. That came to us through the other forty states that preceded us . . . how long these contracts should be. That seems to be the general consensus. The first five years are a growth period for a lot of these issues. If you have someone who is doing really well, it doesn’t mean the terms of the contract need to stay exactly the same.

Q:  What are some of the terms of the contract?

A:  If it’s a substance abuse issue: that they will abstain from the substances; that they will get a sponsor: that they will agree to testing. We have a national outfit that does some of the testing and sometimes our local hospitals will do the testing. With mental health issues we are given permission to talk with the doctor and counselor to be sure the participant is actively engaged in the process. Medication monitoring and testing may be necessary.

Q:  Random testing?

A:  It wouldn’t work otherwise. When they agree, I call them and tell them, “Today’s the day.”

Q:  Is it once a week? Once a month?

A:  We haven’t had anyone tested more often than once every two weeks.

Q:  What if someone says, “I’m out of here.”

A:  If it’s a voluntary contract, there’s nothing we can do. Nothing can be divulged without their permission. If they’re under a voluntary contract and if something comes up a year down the road, some impropriety, some infraction of a procedural rule, we’re in a position where we can advocate for them based on their compliance with the voluntary contract.

Q:  When does the contract become compulsory?

A:  We get formal referrals. One of the ways is when the person has been found in violation of a rule and the supreme court determines that they can retain their license under certain conditions. Generally there will be a paragraph in the supreme court order stating that the person must contact and be in compliance with the suggestions and directions of the Maine Assistance Program for Lawyers. We enter into a formal mandatory contract with the person and then report back to court on a periodic basis as to whether they are compliant or noncompliant. That’s where we have to put on our “policeman” hat. That’s maybe five to eight percent of our participants, a small percentage.

Q:  What if the board of bar overseers is involved?

A:  It’s the same thing. We enter into a mandatory contract and report back to the board as to whether the participant is compliant or noncompliant. 

Q:  How does one become a commission member?

A:  There are eight commission members and a judicial liaison, Justice Clifford of the supreme court. Of the eight members, two are lay people and six are lawyers. Not everyone on the commission is in recovery. Some commission members had an interest in being on the commission and wrote to the supreme court. Some of the folks that had been on the bar association's volunteer committee had suggestions for members that the supreme court reviewed.

Q:  Have we covered all the differences between the bar association's volunteer committee and today's funded Maine Assistance Program?

A:  The main difference is having somebody constantly in touch with the participants, who can monitor the participants and put some teeth into the contracts and be supportive with them and their families.

We’re also very pleased that early this winter in conjunction with the Maine physicians program we will be starting a support group for lawyers and doctors in Portland.  The support group will occur for ten sessions, twice a month, with a very modest fee and will be facilitated by a clinician. It is not therapy. It’s a support group relating to stress, anxiety, and feelings of depression. 

We didn’t have to invent any wheels. We can pop into the listserve of the American Bar Association that involves directors all over the country and see what works and what doesn’t work, with particular emphasis on some of the smaller states. Many of these states have preceded us and have done the footwork. And they’re so good about giving you anything they’ve got. We also have meetings once a year with the other state directors and volunteers. We share and you can copy anything from any program.

Q:  Does any one state seem to lead the way?

A:  There are several large states, as well as small states. Some of those programs are run by clinicians, some by lawyers in recovery, some by lawyers in recovery who are also clinicians. Massachusetts, Oregon, and Florida have model programs. Their programs have been in operation since the late 1980’s.

Funded programs have grown like topsy. In 1988 there were only two funded programs and now there are forty-one.  We’re the state with the lowest numbers of lawyers with a fully funded program. Nevada, Mississippi, and Iowa are among the smaller states with great programs.

Q:  You network with other states?

A:  Yes. There is a national workshop each year. The Maine State Bar Association gives us funding each year that permits us to send three or four volunteers to the national workshop. These volunteers are members of the MSBA substance abuse committee and the bar association has been very supportive.

Q:  Do you feel that the program has been successful to date?

A:  The reason for our success is because we didn’t have to reinvent any wheels. The commissioners have gone to the national workshops. We knew what was happening in the other states. We thought we knew what could work in Maine.

The commission did an internal evaluation at the end of the first year.  We were where we had hoped to be at the end of the first three to five years. We are very pleased with that kind of success knowing full well that we have only scratched the surface. There are many lawyers out there that don’t know about this program, even though we have distributed twelve thousand brochures to lawyers and service providers.

Q:  Any plans for the future?

A:  Make sure the funding continues. It would be great to do what a couple states have done: create a separate fund to receive donations to be used for assessments and evaluations. Volunteer training and educational efforts are definitely on the agenda.

In Oregon they have fifteen thousand lawyers, a unified bar, and one liability insurance carrier. That carrier considers one of its best investments the fronting of the Oregon lawyer’s assistance program. They fund it to the tune of seven hundred thousand dollars a year. They completed a five-year study of lawyers out of recovery. Those lawyers successful in their treatment had a lower number of claims filed against them than the general bar. The trouble with the insurance carriers being the source of funding is that if a carrier has an unprofitable year, the funding gets clipped.

Back in 1999 the conference of all the supreme court justices across the country recommended that each state have a lawyer assistance program. And, the best funding is lawyer assessment because it's continuous each year and you can make financial plans.

Q:  Anything else to add? 

A:  They did a study at one of the more prominent recovery centers. Lawyers who had come to their facility for treatment were asked what the single greatest barrier to reaching out for help was. Eighty-five percent of these lawyers answered by saying they thought they could handle the situation themselves. I agree. That is the biggest barrier.

I think from my experience that there is this success barrier. People who are attracted to law school have gone through some successful periods in their lives. What is contributing to that success? It is their brain and application of effort and tenacity. Most of these attributes are not initially helpful when it comes to substance abuse and mental health recovery.

Lawyers think they can apply the same formula to a substance abuse or mental health issue and, of course, it involves brain chemistry and that doesn’t do it.  It causes pain to the individuals going through it, to their families, and to their profession. It’s racked with pain. But, these diseases are all treatable. That's the beauty and hope of it all.


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