Andi Geloo//July 22, 2024//
Andi Geloo//July 22, 2024//
In early December 2016, a hearing began ordinarily in a Virginia courtroom.
A well-respected criminal defense attorney with over 30 years of impeccable service to the community stepped inside the courtroom two hours early for a preliminary hearing on behalf of an indigent client. A veteran defense attorney, I passed by him quickly in the hallway outside, exchanging pleasantries. His client, a young woman, had been charged with two counts of forgery and two counts of failure to appear in court for previous hearings.
The attorney, whom I will call Charles, had made numerous appearances on the case, which had been pending for two years. The complaining witness had not shown up for court in the past. Charles had worked out a plea agreement, dropping all of the charges except for one count of failing to appear, with the client receiving only a fine. By all standards, Charles was representing his client well.
The hearing then took a shocking turn.
The disturbing series of events that followed reveals a crisis of insensitivity and callousness in the legal profession that we must reverse to recognize that lawyers — like healthcare professionals, first responders, police, and journalists — often absorb the serious stresses, traumas, and grief intertwined with many legal cases, and the compounded impact often leads to mental health crises best healed with accountability marked with compassion, not public humiliation.
According to an “order of contempt” filed by the presiding judge against the attorney, courtroom deputies told the judge that “there was an odor of alcohol about him.” Instead of taking the lawyer into chambers to resolve the matter confidentially — a respectful and professional course of action — the judge took the unusual, and perhaps illegal, step of asking the lawyer in open court to take a preliminary breath test, called a “PBT.”
According to the “order of contempt,” Charles declined the demand, “indicating that he had health problems.” The judge then “instructed” Charles to step forward to the bench and “when he did so, the Court immediately smelled the odor of alcohol.” The judge again asked for a breath test.
At that point, Charles “admitted to drinking at lunch” — apparently, I learned later, one drink. Dispirited, Charles told the judge, “I have a problem.” Unmoved, the judge told Charles “that a jail sentence would have to be imposed.”
He asked her to not throw him in jail, turned to the lawyers in the gallery and said, “I’m sorry.”
The lawyer had not shown any signs of drunkenness. The judge held him in contempt and sentenced him to one day in jail for “CONTEMPT OF COURT,” according to the order. The judge had Charles arrested and led away to jail in handcuffs. Back in the gallery for my own proceedings, I saw lawyers, their eyes wide. Another attorney completed the plea agreement, just as Charles had planned it for his client.
He was released the next day. He never practiced law again.
One attorney present in the courtroom that day remembers the judge asking Charles repeatedly to “admit he was drinking,” but that kind of public humiliation and shaming isn’t going to result in any form of restorative justice.
And a quick glance at Virginia code reveals the judge may very well have overstepped authority in a rush to judgment. Virginia Contempt Code § 18.2-456 enumerates cases in which courts and judges may punish summarily for contempt. Subsection A (1) states that “the courts and judges may issue attachments for contempt, and punish them summarily, only in certain cases.” The statute requires judges to indicate what subdivision an attorney has allegedly violated, but the judge didn’t do so in the order. We can presume it is subsection A1, which punishes “misbehavior in the presence of the court, or so near and thereto as to obstruct or interrupt the administration of justice.”
By all accounts, the attorney did not “obstruct” or “interrupt” justice. In fact, he was the opposite — humble and apologetic.
Moreover, legal experts recognize the preliminary breath test that the judge demanded is not accurate. Police use it in traffic stops, often in conjunction with field sobriety tests, to determine if probable cause exists for an arrest in intoxicated or impaired driving cases, not for contempt charges. Even when the preliminary testing device is used in cases of alleged driving under the influence, it may only be used to establish probable cause. The Eighth Circuit Court of Appeals summarized the general holdings in U.S. v. Iron Cloud, 171 F.3d 587 (8th Cir., 1999), when it stated: “Furthermore, almost every state that has addressed the issue has refused to admit the results of the test for purposes other than probable cause.”
The Court in State v. Zell, 491 N.W.2d 196, 197 (Iowa Ct.App., 1992) held that the results of the preliminary screening test are inadmissible because the test is inherently unreliable and may register an inaccurate percentage of alcohol present in the breath and may also be inaccurate as to the presence or absence of any alcohol.
In another case, Santen v. Tuthill, the Virginia Supreme Court ruled that a preliminary breath test is not admissible for any purpose.
This case is emblematic of a judicial and legal culture that can too often be callous, perhaps even more so to our own colleagues, even as we develop “trauma-informed lawyering” and “trauma-informed courtrooms.” Charles acknowledged that he had a problem, and we should have gotten him the treatment, help and assistance he needed.
Instead, that afternoon, our courthouse lost one of its most selfless and caring attorneys.
When I later learned that the judge held Charles in contempt and jailed him, I was heartbroken. I’ve always believed that showing compassion for those suffering from illness is key to aiding their recovery and an indicator of how civilized our society is. Compassion is just as important a value in any profession, including ours, and no professional should resort to expressing anger or publicly humiliating someone.
I called Charles’s office and left a voicemail. Fighting back tears, I told him I knew he was a strong attorney and a good person, and I extended him my support.
When we spoke a few days later, he told me that the moments in that courtroom, immortalized in the contempt order, and his time in jail were some of the darkest moments of his life, and my voicemail (from a relative stranger) sustained him. He told me that day he was quitting the legal profession.
There were many ways this situation could have been handled. The judge could have called the lawyer into chambers and resolved the issue privately. Charles was an attorney with a stellar reputation for kindness and had devoted over 30 years to our courthouse without incident. He was clearly struggling and depressed. He deserved compassion and forgiveness, not public shame and punishment.
As a profession, we need to recognize that our work, navigating some of society’s most difficult, traumatic and challenging situations, can have an impact on our own well-being and mental health. Fortunately, there is some work being done to bring that awareness to our profession.
In 2016, the Journal of Addiction Medicine published seminal new research by St. Paul, Minnesota, attorney Patrick Krill and co-researchers about substance abuse and mental health in the legal profession, finding that 36.4% of 12,825 attorney respondents demonstrated “hazardous drinking or possible alcohol abuse or dependence.” The researchers, conducting their study in cooperation with the American Bar Association and the Hazelden Betty Ford Foundation, noted that they found that depression, anxiety and stress were “significant problems” for respondents.
Krill and his co-researchers recommended public awareness programs within the profession to overcome stigma and confidential initiatives called “lawyer-assistance” programs to “overcome the privacy concerns that may create barriers between struggling attorneys” — like Charles — “and the help they need.”
The next year, in 2017, the American Bar Association created the “ABA Well-Being Pledge” to improve the health of lawyers. In the years since, lawyer assistance programs have emerged in courthouses from the U.S. Eastern District of New York to the State Bar of California. In 2019, the Lawyers Depression Project emerged as a free and confidential peer support community.
Last year, LawLine, an online continuing education platform for attorneys, started offering a course, “Help for the Helper: The Effects of Trauma and Compassion Fatigue on the Lawyer Who Cares,” taught by attorney Brian S. Quinn, founder of an organization, Lawyers Concerned for Lawyers of Pennsylvania Inc. In the course description, Quinn notes: “A special type of burnout, called ‘secondary traumatic stress’ or ‘compassion fatigue,’ isn’t discussed as frequently as those of stress and burnout and thus, for many attorneys, they are topics in need of attention.”
Quinn notes that this kind of stress can happen listening to clients and witnesses narrate their “pain, suffering and burdens.”
Today, the American Bar Association devotes a page on its website to “Mental Health Resources for the Legal Profession,” collated by the American Bar Association’s Commission on Lawyers Assistance Programs. The resources include help for anxiety, depression, panic, substance abuse, and suicidal ideation.
Despite all of these efforts, as we know, these sorts of discussions are still very much taboo.
With some trepidation about the response that I would receive, I recently posted a short comment about my reflections about the courtroom incident on a listserv for Virginia criminal defense attorneys.
To my surprise, I was overwhelmed with responses expressing compassion for the lawyer and sharing stories of colleagues who have also needed help. One attorney shared the obituary of his young colleague and co-counsel, whose alcoholism accelerated after they defended a difficult capital murder case almost 30 years ago. Others shared stories of deaths by suicide in Fairfax County due to the pressures of trial and defense work, especially when depression and mental illness were factors. Most expressed horror at how the judge had been so cruel to the lawyer.
The consensus among the bar was that the matter could have been handled differently, as I believed, privately in chambers, and the judge could have continued the case. The unanimous opinion was that the judge chose the least tolerant and least compassionate method.
I’m perplexed by the judge’s intolerant and humiliating treatment of a well-respected attorney. The courthouse felt a tremendous loss with the departure of an esteemed colleague. However, despite this one judge’s approach, I am heartened to see the judiciary taking steps to support individuals struggling with addiction.
Notably, Chief Justice S. Bernard Goodwyn demonstrated a commitment to this issue by appointing Justice Thomas P. Mann, one of our most respected judges and my mentor and friend, as chair of the Virginia Lawyers’ Wellness Initiative. This appointment is a testament to the judiciary’s support for the well-being of legal professionals.
As chair, Justice Mann will spearhead a collaborative effort between the Supreme Court of Virginia, the Virginia State Bar, various bar associations, and Virginia’s law schools. The initiative focuses on professional health and wellness, specifically mental health and substance abuse, in the legal community.
The initiative is a step in the right direction, and I am confident that Justice Mann, renowned for his compassion and empathy, will foster a supportive environment that prioritizes the well-being and resilience of legal professionals throughout the commonwealth. This approach is about compassion and understanding rather than punishment and abuse.
Not long ago, I spoke to the attorney whose last day as a lawyer was the day the judge sent him to jail. My quest to locate him and secure his blessing to write this op-ed has been an odyssey that has spanned nearly eight years, beginning from his trying moment. He told me his family had supported him through his departure from the legal profession and he loved them very much and was doing well now. He expressed how much he missed the courthouse and the satisfaction that had come from his work and helping people.
As a lawyer who couldn’t imagine doing anything else, I understand his feelings. Our job allows us to create change and attempt to right the wrongs we see in the community. In whatever role we have, from behind the bench to in front of it, we can be effective and still be empathetic as we extend humanity to others, including those in our profession.
Andaleeb “Andi” Geloo is a first-generation immigrant Muslim, lawyer, and author of “Andi’s Law,” legislation that expanded the rights of citizens seeking protection from defamation. She earned her law degree from George Washington Law School with high honors. She can be reached at andigeloolaw@gmail.com and https://www.facebook.com/AndiGeloo.
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