Jan 31, 2024

Recognizing Addiction Bias In The Legal Field - What Impact Does It Have?

Si; i MBal Recognizing Addiction Bias in the Legal Field what Impact Does It Have? BY ANDREA MUCHIN n the year 2021, 46.3 million people aged 12 or older met case, shedding light on how the biases of the lawyer and the I the specific criteria needed for having a substance use judge can manifest and impact the lives of those navigating i disorder (SUD). Within that population, 29.5 million of the legal system during a divorce or child custody case. those individuals have an alcohol use disorder, while 24 million of those individuals have a drug use disorder. U.S. Lawyers' Bias Dep’t of Health & Hum. Servs., SAMHSA Announces Unsurprisingly, emotions run high in family law as the stakes National Survey on Drug Use and Health (NSDUH) Results 1 are incredibly personal. While lawyers must uphold certain Detailing Mental Illness and Substance Use Levels in 2021 (Jan. ethical standards, when a client going through a child 4, 2023), https://bit.ly/474I8dR. Addiction is a public health custody case divulges information to their lawyer indicating concern that does not discriminate. For purposes of this that they have an addiction, it may change the lawyers article, addiction and SUD will be used interchangeably to perception of their client. The lawyer may have implicit describe those who are addicted to either alcohol or mari­ biases that can lead to stereotyping. It is important for the juana. People with SUD have stereotypes and stigmas that lawyer to recognize their biases and the shame that their follow them throughout their lives. client is likely experiencing. To best serve the a client who In the legal field, where justice and equality are the driving has SUD, the lawyer representing them should challenge goal, the bias that exists with respect to addiction can have their own biases and be upfront and honest with them about far-reaching implications. Most times, the actions taken by the ramifications of being in active addiction and/or those with addiction are viewed through a moral turpitude recovery. lens rather than as the complex physiological and psychologi­ A common stereotype that surrounds those with SUD is cal issues that arise as a result of the addiction. This is that they are dangerous. Being perceived as “dangerous” is prevalent in divorce and child custody cases, where the potentially disastrous for a client in a custody battle. Another spotlight is always on the parent, how they behave around stereotype or stigma surrounding those with SUD is unpre­ their children, and how their behavior impacts the children. dictability. Having an unpredictable client can be difficult for This article explores the complex and pressing issues of any attorney to deal with and can also adversely impact a client bias against those with addiction, especially in a family law in a custody battle. Moreover, if an attorney already believes art credit: Ruba/iStock/Getty Images WINTER 2024 27J I i that the client will be unpredictable, there lies an underlying and ancillary questions and concerns that the judge must bias that the attorney should recognize and address. take into consideration. It is likely that attorneys may have had previous clients A judge is human being and can be susceptible to societal with substance abuse issues who have been more challenging pressures and biases, especially if a judge has been in family to work with than other clients. These past experiences and court for many years and has seen numerous cases involving 1 interactions likely contribute to the attorneys’ implicit biases. a parent with SUD or has personal experiences with a family However, not everyone who has SUD is the same nor should member or friend who has experienced addiction. This may they be treated the same.Attorneys should know that skew the way a judge thinks and/or rules on a case. It is a previous interactions should not be the determining factor in judge’s duty to consider each case in a fact-specific way. predicting future interactions and behaviors. Therefore, Parties suffering an addiction might feel shame, which can attorneys helping a client fight for custody and/or parenting become a barrier to recovery. They may also fear that steps time have an extremely difficult job of learning the specific taken to overcome addiction could harm them, as it would facts and nuances of a case, and then balancing what is in the be an acknowledgement of things they have not previously best interest of the child with what is in the best interest of been honest about. On the opposite end of the spectrum, a the client. judge may perceive a parent favorably when they have shown It also raises another level of complexity for the legal or are showing that they are actively working to recover. This profession and an attorney to have implicit biases when can present in many ways, including, but not necessarily drinking and/or using marijuana is so commonly accepted limited to, attending AA meetings, NA meetings, drug/ these days. For instance, it is not uncommon for an attorney alcohol testing, sober living, and/or treatment programs. The to have alcoholic beverages in their office; in fact, attorney positive efforts in one’s life may demonstrate to a judge that social gatheringsare routinely surrounded by alcohol. So, this parent can and should be present in a child’s life. Judges while it may be socially acceptable for an attorney to drink or who respond favorably to these actions by a parent may help smoke, they must at all times be conscious of the fact that it bring stability to the parent and the family unit. It can only may be a completely different story for a client with SUD. be assumed that when an individual with SUD receives With the legalization of marijuana in many states in positive reinforcement, the recovery will continue, further recent years, it has become more challenging to distinguish benefiting the parent, child, and their relationship. This is between what is truly an addiction and non-addicted known as a community reinforcement approach (CRA), recreational use. Moreover, specifics as to these distinctions which aims to enforce sobriety through positive reinforce­ are often dependent on what jurisdiction the attorney and ment. William R. Miller, PhD, et al.. The Community-Rein­ client are in, as some jurisdictions are more progressive and forcement Approach, 23 Alcohol Res. Health, 116—121 forgiving than others. Unlike alcohol, where limits are (1999), https://www.ncbi.nlm.nih.gov/pmc/articles/ universally measurable both because it is easy to show if a PMC6760430. A CRA approach has some of the strongest person is impaired and because there are breathalyzers and scientific evidence of efficacy. Id. While the job of sobriety other such standards that measure them, it is extremely rests on the person with the addiction, the judge and court difficult to determine with marijuana if and how long the system can assist that individual. effects of the drug stay in someone’s system, as well as what A judge must be careful to review all relevant facts when impact they are having on a persons functioning and considering addiction claims. For instance, is a parent parenting. As a result, lawyers’ bias and how to guide a client drinking or smoking recreationally and around friends in a can become both confusing and multifaceted. social outing? Or is a parent drinking or smoking in the presence of their children? Or is a parent drinking or Judges' Bias smoking alone, trying to hide their addiction from others? There are statutes and laws that are designed to protect Very different scenarios may be presented wherein a judge children. It is a judge’s duty to uphold the law fairly and must make difficult decisions regarding the family and/or impartially. When presented with a case where a party child’s best interest. Even when judges are known to be struggles with addiction, the judge faces a new set of issues equitable and fair, there can be a point in a case where a not present in a routine family court case. In trying to judge might start to see one side in a different light. It is determine what is in the child’s best interest, the judge’s imperative judges acknowledge their biases so they can fairly biases with respect to addiction may impact their decisions execute their duties. relating to custody and related issues such as employment and whether a parent can contribute to the family’s support. Opposing Clients' Bias While the burden is on the attorneys for both parties to When a client retains a lawyer in a divorce case involving present theircase in the best light possible for their client. children, the lawyer should ask if there are any concerns when addiction comes into play, there are a lot of underlying with the other parent regarding addiction. Depending on 28 FAMILY ADVOCATE www.shopaba.orgthe answer, this can cause opposing client biases. Poten­ $14,000 a year on alcohol. Nat’l Inst, on Alcohol Abuse & tially, when an attorney hears that the opposing client Alcoholism, Alcohol Spending Calculator, https://www. might be struggling with addiction, it changes the scope of rethinkingdrinking.niaaa.nih.gov/ tools/calculators/alcohol­ the representation. The attorney might want to be on the spending-calculator.aspx. Similarly, marijuana can be just as offense immediately in regard to custody or any form of expensive. The legalization of marijuana has led to it being emergency petition. There is also the requirement for the more accessible. For example, in the Chicagoland area, there attorney to do their due diligence to ensure that the client are 21 weed dispensaries in the city plus another 53 in the they are representing is not exacerbating instances in order surrounding suburbs. Jay Gentile, Your Guide to Every Weed to receive more time with the children. A cautious lawyer Dispensary in Chicago, Thrillest (Apr. 12, 2023), https:// may also want to explore what, if any, substance issues their www.thrillist.com/lifestyle/chicago/best-dispensaries-in- own client has and what, if any, role their client may play chicago. With such convenience, it is has become increas­ in enabling the other parent. ingly easier for any individual to access. These purchases, just In cases with a credible accusation of addiction, oppos­ like alcohol, add up. In instances where an individual with ing counsel could potentially use the opposing parties’ SUD lives in a state in which marijuana is not legal, their SUD as both a shield and a sword. In other words, oppos­ cost of addiction increases as they would either have to ing counsel might fight for 100 percent of the parenting obtain a medical marijuana card or buy off the street. It is time and all significant decision-making responsibilities easy to see how those suffering from SUD can cause an based on one parties’ SUD. In the same breath, that individual a significant financial strain. This financial strain opposing attorney might also turn around and ask for only grows when it is coupled with an expensive divorce and support or other financial assistance from the party custody battle. For some, there becomes no end in sight. suffering from the SUD. Every case is unique, especially The stigma surrounding SUD within the legal field may I when dealing with a SUD, but there is a slippery slope that instill fear in those choosing recovery as they fear repercus­ a case can end up on if biases are not kept in check. sions from seeking treatment and exposing their disorder. In divorce and child custody cases dealing with addic­ Many times, they may have thoughts of not seeking appro­ tion, the case will never be straightforward, and there will priate treatment or taking prescribed medications. It is always be gray areas. If an attorney is working on a case important to note that taking the prescribed dose of a whose opposing party is battling addiction, the attorney medication is not something that should adversely affect likely has a skewed view of that party. Even if the opposing anyone’s standing in a divorce or custody case. client shows signs of recovery and sobriety, the attorney Those suffering from SUD encounter biases and stigmas might not be as open to accommodating them. Again, at every turn during their divorce or child custody litigation. while every case and attorney are different, implicit biases In order to better advocate for them, it is important to exist in everyone, and, often, people do not recognize that recognize what an individual with a SUD may be experienc­ either they have them and/or how it is affecting the case. ing so all involved can better navigate these difficult situa­ When an attorney and their client are facing an opposing tions and ultimately do what is best for the family as a whole, party with a history of addiction, it is imperative to ensure the parties, and their children. HiS that those biases are not blocking them from doing what is best for the children involved. Biases against People in Recovery There will always be a stigma attached to those who struggle with addiction. Whether an individual is in active addiction or recovery, they will forever be an addict and will likely always feel shame about their condition. Stigmas and labels can be damaging to an individual’s self-worth. It can also 1 deter people from seeking help. ANDREA MUCHIN (amuchin@sdflaw.com) 4" Addiction is costly. It is believed “that the annual eco­ is a partner at Schiller DuCanto & Fleck LLP in nomic impact of substance misuse is estimated to be $249 Chicago. She has practiced divorce and matri­ billion for alcohol misuse and $ 193 billion for illicit drug monial law for more than 30 years, representing use.” U.S. Dep’t of Health & Hum. Servs., Addiction and individuals in all facets of family law. helping Substance Misuse Reports and Publications (Aug. 31, 2023), her clients navigate their sophisticated financial https://www.hhs.gov/surgeongeneral/reports-and-publications/ issues, complex custody concerns, and premarital agreements. Andrea thanks her law clerk, Barbara Moore, a rising addiction-and-substance-misuse/index.html. Individuals who 3L at Loyola University, for her outstanding help with this article. consume an average four drinks a night spends an upward of WINTER 2024 29 I

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