Official Government Website
Governor Little appoints Ross Pittman to First Judicial District
Boise, ID – Governor Brad Little announced today his appointment of Ross Pittman as District Judge to the First Judicial District.
Pittman is a Magistrate Judge in Kootenai County, serving since 2020. He currently presides over the Kootenai County Domestic Violence Court. Pittman brings over a decade of criminal and civil law experience to the bench. He previously served as elected county prosecutor for Boise County and Payette County. Pittman is a former deputy prosecuting attorney for Boise County and Ada County. Pittman received his bachelor’s degree and juris doctorate from the University of Idaho.
“I want to thank Governor Little, his staff, and the Judicial Council for their faith in me; I am honored by this appointment,” Pittman said. “Thank you to my colleagues and family for their continued support. Justice Meyer set the standard high and I am humbled to follow in her place.”
The position Pittman will fill is chambered in Kootenai County. He will fill a vacancy created after Governor Little appointed Justice Cynthia K.C. Meyer to the Idaho Supreme Court. The First Judicial District encompasses Benewah, Bonner, Boundary, Kootenai, and Shoshone Counties.
Idaho Code 1-2101, et seq., addresses how judicial vacancies in the Idaho Supreme Court, Idaho Court of Appeals, and District Courts are filled. The Idaho Judicial Council submits a list of at least three qualified candidates to Governor Little for appointment, consistent with Idaho law.
Notice of Judicial Recruitment Workshop – April 9th
A Judicial Recruitment Workshop will be held April 9, 2024 from 12:00 Noon – 1:00 p.m. PDT via Zoom. This workshop will provide information to attorneys about what it is like to be on the bench, the selection process, the opportunities available, and benefits of judicial service. If you are interested in attending, please RSVP to IDCourts@idcourts.net and you will be e-mailed a link to the workshop.
University of Idaho College of Law Northwest Institute for Dispute Resolution Training – May 13-17, 2024
Award Nominations Deadline – March 29
Each year the Idaho State Bar Board of Commissioners presents awards to members of the Bar who demonstrate exemplary leadership, professionalism and commitment to the legal profession and to the public. Nominations can be submitted at any time, but the deadline to be included in the current year is at the end of March, with selections in May.
University of Idaho College of Law – Menard Law Building 50th Reunion, Boise & Moscow – April 25th
University of Idaho College of Law – Menard Law Building 50th Reunion, Boise & Moscow
Sponsored by University of Idaho College of Law
Thursday, April 25, 2024
4:30-6:30pm Local Time
Receptions will be held in Boise and Moscow
Moscow Location: Menard Foyer
Boise Location: Front Street Building – Room 221
Cost: Free
Join us in Boise and Moscow to celebrate 50 years for the Menard Law Building!
Register by April 14, 2024.
Book Review: When Knowing Comes, A Legal Drama: A Novel by Kelly Green by Jeffery C. Fereday
by Jeffrey C. Fereday
Shame, repressed memories, denial, ruined marital intimacy, courtroom drama, and family tragedy–all arising from childhood sexual abuse occurring decades before – are themes in Kelly Green’s gripping first novel, When Knowing Comes. The book is an insightful examination of the layered tragedies resulting from the sexual abuse of children. I found the book a compelling read.
The story, which covers 50 years and two generations of victims, unfolds in a seemingly safe and cheery American situation: a youth soccer club and the suburban families deeply invested in it. The legal drama at the center of this story concerns one of these young players who, some twenty-four years after suffering sexual abuse, finds the courage to sue the youth soccer organization that ignored the crimes being committed on its watch.
The author is Boise attorney Kelly Greene McConnell, here writing under a pen name. Her background serves her well, as she serves up vivid descriptions of the personalities, the egos, the tactics, and the tough decisions involved in the litigation process.
In this story, the victim’s lawyer is his best friend and former soccer teammate, a man who harbors his own guilt for not coming forward when he witnessed inappropriate behavior by an assistant coach and sensed his friend’s pain all those years ago. Well-organized flashbacks put the reader sometimes with the young players and their parents and coaches, sometimes in the present as the litigation is pursued, sometimes observing the perpetrator’s past, and sometimes with a long-buried trauma that lurks behind the narrative and finally emerges in its own tragedy.
For years we have witnessed the slow grind of public revelations–and sometimes some level of legal accountability–for sexual abuse occurring in churches, in young people’s organizations, and in the sports world. This book is an important contribution to understanding how these crimes often are overlooked or intentionally hidden, how they seem to have their own way of remaining secret, and how the resulting psychological damage can persist for a lifetime. Putting us in the thoughts of one of the parents who had begun to figure out what was happening, Green writes, “She watched the children laughing and playing as she walked by and pondered the safety of their world. How many of you will grow up battling the hurt of your childhood? Some of you might not survive that battle.”
In the book’s Author’s Notes, Ms. Green lists “inspirations and resources” for this project and provides an invaluable bibliography of studies, news reports, memoirs, film documentaries, sports facts, and literature on this difficult subject.
The author is donating this book’s proceeds to non-profits dedicated to preventing child sexual abuse.
Jeffrey C. Fereday
Jeffrey “Jeff” C. Fereday is a retired Boise attorney. He was the author’s law partner for many years.
Endnotes
State of the Judiciary Address by Chief Justice G. Richard Bevan
by Chief Justice G. Richard Bevan
Delivered to the Idaho Senate and Idaho House of Representatives on January 17, 2024
Introductory Remarks
I am honored to stand here before you for a fourth time as chief justice. And really, I don’t stand here on my own. Also standing here are our 159 trial and appellate judges — including newly appointed Justice Cynthia K.C. Meyer, who I hope you all get a chance to meet. Welcome, Justice Meyer!
I also represent, as the face of the judiciary, our hundreds of court clerks, our various court administrators, law clerks, court reporters, court assistance officers and all the many others who help us to accomplish the important work of Idaho’s Judicial Branch of government.
And I stand here on the foundation built by those who came before us — including our recently retired Justice John Stegner. I was honored to work closely with Justice Stegner for his years on the Supreme Court, and I wish him the best in the next stage of his career.
The Rule of Law
A couple of months ago I spent an evening in Twin Falls sharing with an audience why I do what I do. These were everyday folks out on a Monday evening on a college campus, eager to learn. This represented the kind of opportunity I always enjoy as a judge — to help people see how Idaho’s judges advance our grand civics experiment as part of Idaho’s state government.
But there is a gap in the public’s understanding, as I suspect you’d tell me of a gap in public understanding of the legislative branch and the executive. People are aware of courts, but they don’t necessarily think of what courts mean. And they certainly don’t think of what would happen without us.
What is our Judicial Branch? It is fairly simple: Courts provide a fair and peaceful way to resolve disputes, impartially and under an equal rule of law. The law comes from the people in the form of the state and federal constitutions. It comes from those of you in this room, in the form of the laws you write, as well as local ordinances and regulations. Judges apply this wide array of laws to family matters — like adoptions and divorces — to business disputes and property disagreements, to cases for personal injury as well as criminal proceedings. We resolve these cases based on this body of law, together with the facts developed through a trial or discovery process.
That last part is essential to the work we perform. John Adams said that the “very definition of a Republic is ‘an Empire of Laws and not of men.’” Our branch is the embodiment of the American ideal that everyone answers to the law and answers equally. The rule of law is a fundamental cornerstone without which our society would flounder.
There are several ways to describe the rule of law. I have heard it put as the reason we will stop at a red light late in the evening, with no one around. Why do we stop? Because the rule of law is so entrenched in most of us that we don’t give it a second thought. The rule of law doesn’t mean that the police are in charge; it means that we all answer to the same laws.
The rule of law is visible when we pay our taxes on time or when divorced parents throughout this state shuttle their children across town to fulfill custody arrangements. The people who follow judges’ orders in these cases may not agree with them. But they follow those orders anyway because they respect the laws and the courts that enforce them. As Dwight D. Eisenhower said, “[T]he rule of law does more than ensure freedom from high-handed action by rulers. It ensures justice between man and man however humble the one and however powerful the other.” Really, the rule of law is the glue that keeps us all functioning as one, that helps us navigate life with our neighbors.
In the Judicial Branch, our patriotic purpose in coming to work each day is to build on the centuries of solid evidence that an independent court system is best equipped to impartially decide questions of law — and then equally apply the law “without sale, denial, delay, or prejudice,” to quote Article I, Section 18 of the Idaho Constitution.
We have seen elsewhere in the world what happens if the rule of law is subverted. U.S. Supreme Court Justice Felix Frankfurter once wrote that “[t]here can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.”
Each year that I come here, it is to partner with you to uphold and sustain this rule of law. Truly, the fates of our public duties are tied together. If the rule of law falters in our courts, it also falters in this statehouse.
But nothing is simple these days, is it? The people whom we serve and the society in which we operate have become more fractured. People have forgotten the nature of the broad social contract that allowed us to form this state, this nation.
The issues that become high-profile wedges in our society have successfully distracted us from the many things we agree on. My hope, then, is to focus today on our joint obligation to maintain our rule of law.
Supporting the Rule of Law in Our Courts
It is an eventful time to work in the judiciary, for many reasons. Just the sheer volume of work can be a challenge to convey.
We’ve been frank with you in recent years about our case filing trends — both here and nationally, the overall trend is a small decline in civil cases. But we still handle more than 140,000 new court cases a year across one of the most geographically spread-out states in the Union. Those cases are often more complex, and they are drawing more attention — look, for example, at the national followings for some of our recent criminal proceedings.
Even everyday cases require more focus than before. In Idaho, we maintain audio recordings of all court hearings as part of the official court record — the record my colleagues and I rely on when reviewing a case on appeal. That audio is kept in a dedicated system devoted to this purpose. In 2023, that system received nearly 62,000 hours of court audio. That’s nearly a 10% increase from the same time period four years before. While Idaho has gained judges in that time, we are also seeing more court filings involving arguments that require more courtroom time to resolve.
Our courts perform this work amid a backdrop of increased agitation toward government institutions. I spoke to you at length last year about the security threats our judges and court staff face. That situation has not improved.
Our courts in 2023 handled 60,000 newly filed criminal cases, 23,000 cases involving family law, 14,000 probate cases, 5,000 juvenile cases, plus those carried over from previous years. Many of these cases resolve quickly with little fanfare. Some become incredibly contentious. Underlying many of these cases are issues of mental health, substance abuse, homelessness, and neglect.
All it takes is one person making a bad choice in one of these situations for the unthinkable to occur. Thank goodness that we are not among states like Maryland or Wisconsin where judges or their family members were murdered in recent years, or Nevada where a judge was violently attacked in the courtroom just this month. But I still fear we are not far from that point.
Even so, we carry on undaunted. Enter one of our courts and you’ll find a devoted workforce accomplishing feats I personally find incredible. Our judges must pivot from case to case and issue to issue while remaining fully present in each. Our clerks not only keep the whole system moving, they are our public face, helping users of the court system — and often managing interactions colored by those personal crises I just described.
Supporting these groups behind the scenes is another invaluable team. Here in Boise and across each of our judicial districts, Judicial Branch employees offer technological, financial, and other administrative support to all of our individual courts. Their work isn’t always easy to see — but it would be obvious if they were missing. I am endlessly grateful for their own contributions to maintaining our rule of law.
Supporting the Rule of Law with Our Partners
By Constitution and statute, counties shoulder much of the burden of maintaining local courts. This constitutional partnership — done for budget savings in 1889 — is somewhat unique among courts nationwide. We take it seriously.
For example, we have relaunched a committee to provide elected clerks with more of a voice on court technology. As we work to better secure our digital systems, we are shaping our approach around the counties, acknowledging their unique processes and needs.
The bulk of our state-employed IT support is centralized in Boise while the counties themselves make their own arrangements for local IT. The counties’ needs go beyond just the court system, of course. But starting in the last fiscal year, with your help, we placed an additional court-focused field technician in each judicial district to deploy new technology, solve technical issues and train both county and state employees who provide work for the courts. Feedback to this program across the board has been encouragingly positive and we are working to expand it — it’s hard for a single tech to be both in Benewah and Boundary counties at the same time.
We also now offer a jury management system for counties. Again, managing jurors — summoning them, screening them, providing the information necessary for their work — largely happens at the county level. But through offering this state-funded system, we can provide jurors in any county that signs up with flexible, easy-to-use tools and timely information as they fulfill their own obligation to the rule of law: jury service.
We partner in other contexts — for example, to provide state agencies and even this Legislature with data needed to perform other work. Some of that data can be sensitive. Child protection cases, mental commitments, and even people’s personal financial records require protection. Recently, we’ve worked to improve our data comprehension, both expanding the types and functionality of our reports and, in situations where law requires sensitive data be provided to an outside partner, creating a more secure way to deliver that data.
Our statewide IT team supports not only court operations, but also court users. That number encompasses about 2,900 people, including law enforcement and Idaho Department of Correction employees, who use our system daily to access court records they are entitled to as part of their jobs. Another example: our team helped the Nampa Police Department as that department migrated to using the statewide electronic ticketing system for electronic citations. Examples such as these show the courts’ willingness to partner with others across government for public service. We look forward to continuing these partnerships in 2024.
Digital Access to Justice
As you’ve heard in previous years, so much of the fundamental work of the courts now involves computerized records and digital tools — and Idahoans expect that. In the same way that computers allow anyone to watch the full proceedings of this Legislature, both the public and our many court partners expect and rely on the conveniences of our modern times.
Videoconferencing in the courts has been invaluable in terms of the public’s access to justice and our ability to quickly coordinate court proceedings and court management across this state. Court hearings of public interest may be livestreamed, allowing anyone to observe them. Administrative meetings held over Zoom encourage statewide participation from court stakeholders. This improves the range of voices who are able to participate in determining how we operate while minimizing travel and related costs.
Electronic filing and digital court recordings create efficiency for both our courts and those who use them. Right now, we are developing a new court records portal — offering access to public court documents right from your computer at home — without the need for a physical trip to a courthouse. This will increase transparency into the workings of our courts for the people of Idaho.
This brings me to my next topic — the sustainability of our systems.
Preserving and Protecting Court Technology
Judicial Branch technology, including many of the employees who help maintain it, has primarily been supported through the Court Technology Fund. Established by this Legislature, that fund gets its revenue through legislatively established fees imposed in both criminal and civil court cases.
I understand the logic of such a self-funding approach, but in practice this model falls short. Court fine and fee receipts for the fund declined an average of 2.1% per year in the past five years. Meanwhile, overall technology costs rose an average of 7% each year — a cumulative 35%. This ongoing disparity in funding makes our current system unsustainable.
The courts have been thrifty stewards of this resource, leveraging fund reserves to support ongoing operations and deferring expenditures over the past several years. As you’ll read in the annual report we provided you, we are below the national average in our spending per user on technology.
But as I explained last year, we have had to make tradeoffs. Last month we passed down to civil court filers a $5 fee on electronic filing required by our software vendor. We hope that the benefits of having digital court documents sent to you and of filing from the comfort of one’s home or office — without the need to run between county courthouses — balances the financial demand of the fee.
In speaking to you about these issues before, I have shared our efforts to build a sustainable future for our modern courts. As I promised last year, after extensive work with an independent consultant who evaluated our systems and staffing, I am pleased to present our solution based on their recommendation.
These steps are twofold. First, technology has substantially changed since we first implemented digital court records, giving us more options to host and secure our systems. The Judicial Branch has begun work to establish a statewide court computer network and to transition most services to a cloud-based network structure rather than traditional, local information hosting.
This move will alter both our costs and staffing needs throughout the state. And so, the second step will be a request to you to close the gap between our current technology funding and what the courts need for long-term success. I ask that you please give this funding your full support — it will make the difference in what services we can keep available to your constituents.
For these systems are not nice bonuses. They’re not bells and whistles. They are what technologically running a third branch of government requires — and what the public expects from a modern court system.
This funding includes recognizing the burgeoning demands of cybersecurity — and what a time we live in for that. In just the month of December, our systems blocked 209,000 attacks on our court websites and 57,000 critical and high-security threats to our network firewalls. They also turned aside 124,000 copies of spam emails and messages with malicious intent.
These figures are not unusual. They are the status quo. They are evidence of coordinated efforts calculated to disrupt American governments. In the Judicial Branch, we stay vigilant to prevent their success. But vigilance and protecting the people’s records is not an inexpensive endeavor.
Support for Idaho’s Judges
We come to you this year also hoping to renew the conversation about fair compensation for our judges. This is not just a conversation about pay, it’s about retention and recruitment.
I just passed my 20th year as a judge. I’m among a handful of our active judges who have served that long or longer. But our average judge has been on the bench for much less time — roughly 7 ½ years — and our experienced judges are increasingly choosing alternate employment or retirement over staying in the judiciary.
A former magistrate judge gave a news interview last month about her departure from the bench that I feel is particularly illuminating. Judge Michelle Mallard gave exemplary service to the state of Idaho for 12 years.
Her comments in the interview reflect concerns we also hear from attorneys. For an experienced attorney in their prime, service as a judge comes with a significant financial sacrifice by way of a pay cut. And judges are never off the clock. A judge must limit friendships, and the job includes a growing amount of harassment and threats directed not just at the judge, but at her family and children.
Former Judge Mallard said her husband would sleep with a gun by their bed following certain cases. No one should have to do this as a result of public service. And it’s not an environment conducive to recruiting the best and the brightest to serve as judges.
These concerns reflect even more notably on our district judges, where we especially see recruitment challenges. District judges handle felony criminal cases and high-value civil cases. In 2022, we averaged just five applicants for each of our district court openings, a number I previously described to you as “inadequate” and one which is almost a 50% decrease from just seven years ago.
Last year, that average dropped below five — and for openings in our First and Sixth Judicial Districts, only three attorneys applied, the minimum number the Idaho Judicial Council is now required to provide the Governor for his selection. Once again, with no disrespect to those who applied, this trend is heading in an alarming direction.
Idahoans deserve judges who are at the prime of their careers and at the top of their game. But we don’t get there by making judicial service painful and undercompensated. At the very least, let’s pay our judges a fairer wage, something that reflects the market value of their education and expertise.
For a full branch of government — one of only three branches — our full budget proposal still only touches a little more than 1% of the general fund. Thank you for giving it your consideration.
Serving the People of Idaho
By necessity I must focus my remarks on the challenges before us. But make no mistake, Idaho has a strong and accomplished judiciary.
Our work with treatment courts, restoring people to being productive members of society, continues to set national standards. This is deeply meaningful work for our branch. 2,800 people participated in Idaho treatment court programs in fiscal year 2023. Twenty-one drug-free babies were born to the participants — as a father and grandfather, that is a number that makes me proud.
The Judicial Branch worked this past year to improve our approach to domestic violence courts, which connect victims with advocacy and other services while holding offenders accountable. We maintained a focus on mediation — resolving custody disputes, producing criminal plea deals, and making more courtroom time for the truly intractable disputes that require a judge’s in-court focus and management.
In November, courts across our state celebrated the many foster child adoptions that take place year-round in our courtrooms. Adoption hearings are among the most personally meaningful events our judges participate in. These are yet another reminder of the many ways our courts touch people’s lives.
And again, in each of these situations we are, piece by piece, keeping the rule of law present in Idahoans’ lives.
So, it is with a sense of optimism that I leave you today. Each year during these remarks, I have shared my strong belief that working together, our branches can truly improve life for the people of this state. The power to keep Idaho exceptional lies with us — the people our voters have entrusted with our most sacred government systems.
This is a unique state, a state I was born and raised in, a state where I have raised my five children, and a state where I have been proud to serve as a judge for two decades. I am proud of and respect all who labor in Idaho’s judiciary. I thank you for working with us to keep it that way.
Chief Justice G. Richard Bevan
Chief Justice G. Richard Bevan was appointed to the Idaho Supreme Court in 2017 and became chief justice on January 1, 2021. He is a director on the board of the National Conference of Chief Justices. Previously, he served a long career as an attorney and later district judge in the Fifth Judicial District. Chief Justice Bevan received his undergraduate and law degrees from Brigham Young University.
Love the Law!: A Program Everyone Can Relate To by Anna E. Courtney and Kinzo H. Mihara
by Anna E. Courtney and Kinzo H. Mihara
WARNING: If you are expecting a deeply thought-provoking and well-cited legal treatise, keep flipping the pages. If you want to feel good about your job – keep reading. We are lawyers, and we love the law. As Idaho lawyers, we practice in the most bountiful areas in the most beautiful and wonderful state in our Union. For the most part, we get to rise every morning and do a job which brings us a sense of purpose, satisfaction, and fulfillment. A couple of times a year, however, our jobs bring us an even greater sense of fulfillment and pride. Those are the days we receive an email from a local government-studies teacher who asks if the Idaho State Bar Diversity Section is willing to do another Love the Law! event.
Love the Law! is a subcommittee and subsection organized under the Idaho State Bar’s Diversity Section.
Distilled to its essence, the message of Love the Law! is to let every student know that, regardless of their background, if they are interested in a legal profession and willing to work hard, they can achieve their dreams. The message is underscored by the countless judges, lawyers, court support staff, and law enforcement personnel who volunteer their time to one or more of the Love the Law! events. These events introduce students, who may not otherwise be exposed to the practice of law, to the legal practice. The goal of Love the Law! is to bring new and different voices into the legal profession to the benefit of us all.
We hope this article informs readers about the history of Love the Law!, the many reasons why Love the Law! matters to the Idaho legal community, and encourages you to host a Love the Law! event.
Founders of Love the Law!
The subcommittee and subsection were founded in the late 2000s under the Diversity Section of the Idaho State Bar by many of our colleagues who are no longer with us, either through retirement, death, or job relocation. A special note of remembrance and thanks goes out to Judge Sergio Guttierez, Linda Pall, Richard “Dick” Fields, and Jennifer King. These are only some of the people who were instrumental in getting this program off the ground. Without their vision and hope to truly “give back” to our Idaho communities, the Love the Law! events of today would not be what they are. These founding lawyers saw a need for all young students, regardless of background, to have the ability to pursue a legal career.
Love the Law! Events
Love the Law! events are put on by local attorneys for students in their communities in coordination with the Diversity Section. Any lawyer can spearhead an event; all that is needed is the desire to do so and the cooperation of like-minded volunteers in the bar or on the bench.
Love the Law! primarily works by hosting events that allow diverse groups of students to witness the actual practice of the law. A typical Love the Law! event consists of students, high school, or college level, who come into court and see actual cases litigated. Either criminal or civil cases can be on the agenda; however, students seem to gravitate toward criminal cases. It only makes sense. A good criminal case has a little more pizzaz than a run-of-the-mill property boundary argument. If minor students participate, the event is tailored to exclude cases with salacious criminal charges. Special care is taken to attempt to notify the lawyers involved with the cases so no one is surprised on the day of the event.
After the hearing, the judges, lawyers, court staff, and any involved law enforcement will remain in the courtroom and answer questions (to the extent possible) about the cases the students observed. Each legal professional will also talk about their biography and offer anecdotal stories of how they came to their respective jobs. The judges and lawyers may ask students questions about their class, what they have learned about the law, and what interests them about the law.
"Love the Law! primarily works by hosting events that allow diverse groups of students to witness the actual practice of the law."
These events often have a court tour component, which is the province of the bailiff’s offices. The students usually have a good time seeing their teachers put into irons and placed in the Court’s holding cells. Again, for obvious reasons, special security considerations apply when allowing students into the areas where criminal defendants may be held. We have found that such tours can only occur if no “in-custody” defendants are awaiting hearing or transport.
Now to the good part: a boatload of pizza and other food. Each Love the Law! event usually ends with judges, lawyers, support staff, and others sharing a meal with the students and teachers involved. The question-and-answer session usually continues during the meal. As one can imagine, some of the questions can be quite colorful. This part of the program is especially rewarding as every conversation is made better over pizza.
Diversity in Action
Love the Law! is a continuous work-in-progress to encourage diversity both internally and externally. Some of the inaugural programs were conducted with male-only legal professionals. The male-only aspect was not intentional. It was the practical reality of stumbling through the process of developing a good program for the students. The same was true for the inclusion of court staff and law enforcement personnel.
As time has gone on, Love the Law! has tailored events and participants with the help of student feedback to increase the diversity of legal professional involvement. For example, some of the female students expressed a deep interest in the law but noted that there were no female judges or lawyers to give their perspective. Other students noted that “it’s cool” that lawyers and judges presented; however, they would rather be a clerk or policeman or sheriff and were interested in the clerk’s and bailiff’s perspectives.
Today, judges, lawyers, court staff, and law enforcement of all genders, ages, and other demographic backgrounds are invited to participate in the programs. The more the better. We all have unique paths that we have taken to our respective places in the legal system. Modeling alternative paths encourages people who might not otherwise consider the practice of law to consider it.
Events Across the State
Love the Law! events have taken many shapes across the State. Love the Law! has hosted Boise High School students at the Idaho State Capitol Building, where students attended a Senate Judiciary and Rules Committee meeting. Shoshone Bannock Junior High and High School attended hearings at the Bingham County Courthouse. Lakeland High School attended hearings at the Kootenai County Courthouse. Skyview and Caldwell High School students spent a morning with Judge Dayo Onanubosi in Canyon County.
The U.S. District Court for the District of Idaho has hosted events where students engaged in a panel discussion including Magistrate Judges, Assistant U.S. Attorneys, Probation Officers, the Deputy Chief U.S. Marshall, and the Federal Public Defender. Where an interest is raised, a Love the Law! event can be created to meet it.
Diversity in the Law School Pipeline Still Matters
Many people have asked us why the bench and bar would support such a program. There are many reasons beyond just helping kids who may not otherwise hear the message that they can succeed. Nationally, diversity in law school classes continues to increase. The national incoming class of law students in 2022 was the most racially and ethnically diverse class in history, including 36.6% students of color.[ii] This represents a 1.9% increase over 2021 and a 3.5% increase from 2019.[iii] In 2022, 57.7% of matriculants identified as Caucasian, 10.1% identified as two or more races, 9.4% identified as Hispanic/Latinx, 8.9% identified as Asian, and 7.8% identified as Black/African American.[iv] For the 2022 class, approximately 14% identified as LGBQ+ and 0.6% self-identified as transgender, gender nonbinary, or genderqueer/gender fluid.[v]
Yet, as of 2021, diversity in law school enrollment still lags behind the minority share of the population and potential law school candidates (college graduates between the ages of 25-34) by roughly 10%.[vi] The University of Idaho College of Law also lags 2023 national statistics by roughly 7%, with 30% of the 2023 class identifying as a student of color.[vii] Nationwide, the largest disparity between the general population and law students is among students identifying as Black and Hispanic.[viii] Further, minority law students continue to graduate from law school at lower levels.[ix] The data suggests that efforts to increase the diversity of the law school pipeline are still worth our time.
That is not to say that Idaho lacks diversity. Idaho has a strong history of perseverance through adversity that is on-par with any other place on this Earth. Its people are hard-working, generous, and noble – regardless of background. But the value of diversity cannot be over emphasized. Increased diversity in the legal profession is tied to increased public trust and confidence in the legal system as a whole.[x] There is also a statistically significant correlation between superior performance in the profitability of organizations and the increased diversity in leadership teams for those organizations.[xi] It helps participants in both the legal profession and the legal system to know that the judicial branch of government is not controlled by a single race, gender, sexual orientation, or any other social category in which we might put ourselves.
"Modeling alternative paths encourages people who might not otherwise consider the practice of law to consider it."
Consider Supporting an Event
Love the Law! events take both time and money. The typical program will run between three and five hours, inclusive of all the activities noted above. The cost to put on an event runs anywhere between $200 and $500 per event depending on the number of students and teachers involved.
Love the Law! events are funded by a variety of sources. They have been funded in the past by grants from the Coeur d’Alene Tribe, as well as by U.S. District Court outreach grants. The events have also been funded by private law firms and their clients who hear about the events and wish to donate. The Diversity Section will also help with financial support for these events.
More important than monetary contributions, however, is the donation of time and effort by the judges, lawyers, and staff that go into these programs. Now that the program has matured, the judges, lawyers, and staff who have previously participated in the events are quick to volunteer for new events. Even judges and lawyers who have not participated in the events to-date have reached out to express an interest in bringing events to new courtrooms around the state. Our profession sees so much contention and adversarial wrangling; many participants find it nice to engage in an aspect of the legal profession that brings amazement and wonder to a young person’s life.
We would strongly encourage any of our colleagues to become involved in a great outreach program! If you or your firm, office, or department are interested in participating in, or contributing financially to, this type of event, the Love the Law! subcommittee is always welcoming new members and unrestricted funds. Please feel free to reach out to either of the authors – or to any of the Idaho State Bar’s Diversity Section leadership–if you or your firm are interested in Love the Law! events. Very few things in this profession are as rewarding as telling a kid that they can achieve their dreams… and that they are welcome to have more than one piece of pizza.
Anna E. Courtney
Anna E. Courtney is Associate Counsel for St. Luke’s Health System. Before joining St. Luke’s, she practiced commercial litigation and worked in diversity and talent management. She currently serves as the Secretary/Treasurer for the Idaho State Bar Diversity Section. A 2013 graduate of Gonzaga University School of Law, she lives and practices in Boise with her husband, 4-year-old son, and two mostly-good dogs.
Kinzo H. Mihara
Kinzo H. Mihara is a solo practitioner in Coeur d’Alene, Idaho. Aside from the myriad of cases he works on, he has twice served as the Chair of the Idaho State Bar Diversity Section. He is continuously involved in Love the Law! events, and serves on the boards of the Idaho Legal Aid Association, Inc.; the Intermountain Fair Housing Council, Inc.; and, Family Promise of North Idaho, Inc. He is a former U.S. Marine and Carnegie Hero. He is married to his best friend and bride, Jennifer; and, they have four children, Brodey, Lilly, Cora, and Esther.
[i] IDAHO STATE BAR ASSOCIATION, https://isb.idaho.gov/member-services/practice-sections/div/ltl/ (last visited Jan. 4, 2024).
[ii] Krinksy, Susan L., Incoming Class of 2022: A Major Advance in Diversity, More Work to Do, LSAC BLOG (Dec. 20, 2022), https://www.lsac.org/blog/incoming-class-2022-major-advance-diversity-more-work-to-do#footnote2.
[iii] Id.
[iv] Id.
[v] Id.
[vi] Brooks, Richard R. W. and Rozema, Kyle and Sanga, Sarath, Affirmative Action and Racial Diversity in U.S. Law Schools, 1980-2021, Northwestern Public Law Research Paper No. 23-50, NORTHWESTERN PRITZKER SCHOOL OF LAW (June 28, 2023), https://ssrn.com/abstract=4494741 or http://dx.doi.org/10.2139/ssrn.4494741.
[vii] Standard 509 Information Report, University of Idaho College of Law, 1-4 (2023), https://www.uidaho.edu/-/media/UIdaho-Responsive/Files/law/admissions/aba/aba-disclosure-509-b.pdf?la=en&hash=3BD201C30A2A5464D38F8286560CB229FDCCE252; Leipold, James, Incoming Class of 2023 is the Most Diverse Ever, but More Work Remains, LSAC BLOG (December 15, 2023) https://www.lsac.org/blog/incoming-class-2023-most-diverse-ever-more-work-remains#:~:text=Black%2FAfrican%20American%20students%20comprise,compared%20to%208.8%25%20in%202021.
[viii] Law School Enrollment by Race & Ethnicity (2022), ENJURIS, https://www.enjuris.com/students/law-school-race-2022/ (last visited Jan. 4, 2024).
[ix] Brooks, Richard R. W. and Rozema, Kyle and Sanga, Sarath, Affirmative Action and Racial Diversity in U.S. Law Schools, 1980-2021, Northwestern Public Law Research Paper No. 23-50, NORTHWESTERN PRITZKER SCHOOL OF LAW (June 28, 2023), https://ssrn.com/abstract=4494741 or http://dx.doi.org/10.2139/ssrn.4494741.
[x] Hon. Phyllis D. Thompson, Focus on Diversity: Why Diversity Must Matter to the Bar Admissions Community, THE BAR EXAMINER Vol.89, No. 1, 65-57 (Fall 2020), https://thebarexaminer.ncbex.org/article/fall-2020/why-diversity-must-matter-to-the-bar-admissions-community/.
[xi] Vivian Hunt, Sara Prince, Sundiatu Dixon-Fyle, Lareina Yee, Delivering through Diversity (2018), 8 https://www.mckinsey.com/~/media/mckinsey/business%20functions/people%20and%20organizational%20performance/our%20insights/delivering%20through%20diversity/delivering-through-diversity_full-report.pdf (“Companies in the top-quartile for gender diversity on their executive teams were 21% more likely to have above-average profitability than companies in the fourth quartile. For ethnic/cultural diversity, top-quartile companies were 33% more likely to outperform on profitability.”).
The Legal and Practical Implications of Perez for Youth with Disabilities by Abigael Schulz
by Abigael Schulz
The recent United States Supreme Court decision in Luna Perez v. Sturgis Pub. Schools changed how youth with Individualized Educational Plans (“IEP”) could sue their school. Until the decision, youth with disabilities receiving special education services under the Individuals with Disabilities Education Act (“IDEA”) had to exhaust their administrative remedies before filing a lawsuit against a school district that violated their educational rights.[i]
Generally, before a student on an IEP can file a lawsuit under the IDEA, the student must complete their State Department of Education’s due process hearing and receive a written decision from a hearing officer. In Idaho, a hearing officer has 45 calendar days from the beginning of the hearing to issue an opinion.[ii]
Now, with the Perez decision, students and their families can utilize remedies under federal laws that protect youth with disabilities, including those granted under the Americans with Disabilities Act (“ADA”), when a school district has violated a student’s educational rights without first wading through often lengthy administrative procedures.
But Perez did not merely change procedurally how students can protect their rights. The decision also opens the door for students to access broader remedies and exposes how schools should assess students for special education services to comply with federal guidelines. This article provides the facts of Perez, explains the Supreme Court’s decision, and explores Perez’s impact nationally and to Idaho students locally.
"The decision also opens the door for students to access broader remedies and exposes how schools should assess students for special education services to comply with federal guidelines."
Perez Facts
Miguel Luna Perez, who is deaf, enrolled in the Sturgis Public School (“Sturgis”) system in Michigan at age 9 after moving to the United States from Mexico.[iii] Unbeknownst to his parents at the time, Miguel was assigned paraprofessionals who were either unqualified or were completely absent from the classroom for hours. Miguel received passing grades every year, but when he was ready to graduate, he was only awarded a certificate of completion rather than a high school diploma. Miguel’s parents, who spoke only Spanish, were unaware that Miguel did not receive an appropriate education because the district failed to provide Spanish/English language interpreters during parent meetings. Sturgis did not meet the communication needs of either Miguel, or his parents, as mandated by IDEA regulations.[iv]
As a result of Sturgis violating Miguel’s and his families’ rights under the IDEA, the Perez family filed an administrative complaint (“Complaint”) with the Michigan Department of Education. Miguel settled with Sturgis because the district offered to pay for Miguel to attend the Michigan School for the Deaf and provide sign language instruction for Miguel and his family.
However, after this settlement, Miguel filed a lawsuit under the ADA in federal court. He alleged Sturgis discriminated against him for failing to provide him with equal access to education. He sought compensatory damages for emotional distress and projected loss of potential wages.
Sturgis argued that a provision in the IDEA barred Miguel from bringing an ADA claim. The IDEA provision Sturgis relied on provides, in relevant part:
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C. 12101 et seq.], . . .or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures . . . shall be exhausted.”[v]
Therefore, Sturgis’s argued that before one can file a civil action under another federal law seeking relief that is also available under the IDEA, one must first exhaust their administrative remedies under the IDEA.
Perez Decision
The Supreme Court, in a unanimous decision, held the IDEA’s exhaustion requirement does not prevent a person from filing a lawsuit under other federal laws for remedies that are not provided under the IDEA.[vi]
The only relief IDEA’s administrative process can supply to families is relief for a denial of a free appropriate public education (“FAPE”) according to a 2017 Supreme Court decision.[vii] The FAPE provision requires schools to provide special education that meets the unique needs of youth with disabilities. In other words, the district is responsible for creating specially designed instruction for the student. To meet a student’s unique needs, a district might also be required to provide related services which help the youth benefit from special education, such as sign language interpretation. As the “F” in FAPE indicates, additional education and services are provided at no cost to the parents, guardians, or students.
Additionally, adhering to the FAPE provision of the IDEA requires the school to create an IEP, outlining the plan for the youth’s education and services, and it requires administering the youth’s education in the least restrictive environment. The least restrictive environment means youth need to be provided accommodations and modifications to participate in the general education curriculum to the fullest extent possible.
Youth must complete assessments to determine if they qualify for special education. Ultimately this decision is made by the school’s multidisciplinary team, which often includes: a general education teacher; a special education teacher or director; the individual providing the related service; a school administrator who can make decisions regarding what services the district can provide; and the student’s parents or guardians. The team must determine what assessments the student should complete and then interpret the data from these assessments to create a plan that will enable the student to reach their educational goals. However, since the team is made up of people at each student’s school, the system may not be uniform even within the same school district.
When a district fails to provide youth with disabilities a FAPE, according to the statute, the IDEA provides broad discretion to the court or hearing officer to award damages it determines is appropriate based on the preponderance of the evidence.[viii] However, as the Court in Perez noted, compensatory damages are not a remedy the IDEA can supply.[ix] As a result, Miguel pursued a claim for services from Sturgis instead of loss of income or recovery of other damages.
Perez’s Impact Nationally
The decision in Perez provides more avenues for families to hold systems accountable under federal civil rights laws. The decision also allows families to seek more immediate relief rather than having to navigate lengthy IDEA administrative procedures before obtaining appropriate remedies.
The real beneficiaries of this decision, however, are youths with disabilities impacted by unfair treatment in schools that are not receiving a FAPE. The decision highlights the importance of school districts completing comprehensive assessments for youth with disabilities in order for them to obtain a FAPE.
The IDEA states that “A State educational agency, other State agency, or local educational agency shall conduct a full and individual initial evaluation in accordance with this paragraph. . . .”[x] Therefore, under the statute, school districts are required to complete full evaluations of students to assess all their needs including communication, assistive technology, related services, etc.
In Perez, Miguel’s communication and cultural needs should have been assessed by Sturgis and accommodated in his IEP. More transparency should have been provided to him and his family regarding his educational progress.
The holding in Perez clearly comports with the plain language of the IDEA and further showcases the harmful effects to youth with disabilities if a school district fails to conduct complete assessments. Perez holds that school districts must view students with disabilities for who they are – whole people with entire cultures, languages, and abilities that should be honored and included. This decision demonstrates the holistic approach that should be taken when assessing students with disabilities.
According to the National Center for Education Statistics, in 2021-22, the number of students ages 3-21 who received special education under the IDEA was 7.3 million or 15% of all public-school students.[xi] With more classrooms emerging that have more youth with varying needs, educators need the skills to ensure their students have what they need to succeed.
Some critics of this opinion worry that it creates a culture of litigation instead of promoting collaboration – which is the goal of the special education process. However, if the current dispute resolution options fail families, then they do not have other recourses available except litigation. This is costly for school districts and families which is why Perez is so important.
The Court’s decision in Perez depicts how the IEP team is meant to work together for the benefit of the youth to provide them a FAPE. Parents or guardians and the student (whenever appropriate) are legally part of the IEP team, which means they have a seat at the decision-making table regarding the student’s education.[xii]
If Miguel and his family had been incorporated in his educational team in a transparent and inclusive way, the Perez decision may not have occurred. The FAPE provision of the IDEA requires schools provide services that are reasonably calculated to help a youth make progress, which entails due diligence on the part of the IEP team to create a program for the youth that meets their unique needs. Perez furthers the IDEA’s requirements that special education is a collaborative, team effort by showing us the detrimental effects of excluding individuals who need to be teammates in this process.
Perez’s Impact Locally
According to an Idaho Education News report in 2023, there were nearly 37,000 students receiving special education in Idaho which was about 11.6% of the state’s total student population.[xiii] This is an increase from the 32,908 students receiving special education services during the 2017-2018 school year.[xiv] This means more students than ever before require special education services in Idaho.
U.S. News in 2018 reported from the Jerome School District’s services director that his concern was such a large part of special education costs were the result of litigation.[xv] This director wondered “when that money will be invested into “human capital” rather than fighting lawsuits.”[xvi]
Perez paves the path for school districts in Idaho to invest in comprehensive assessments, which will demonstrate the students emotional, physical, communicative, and other needs, and provide solutions on how to meet these needs. If schools are addressing the students’ comprehensive needs, then special education costs will not go towards funding litigation.
Instead, the funds can be used towards helping students achieve their goals. This could look like providing a 1:1 aid to manage behavior, an interpreter to provide communication services, or sensory devices to calm a student’s anxiety.
In the IDEA, Congress states “Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.”[xvii]
As Perez demonstrates, we cannot improve these results for students unless they are properly assessed and given the opportunity to fulfill their goals with the support they are guaranteed under the law. IEP teams across school districts in Idaho should collaboratively work to have all voices heard to ensure youth such as Miguel Perez have not fallen through the cracks.
Abigael Schulz
Abigael “Abbey” Schulz is a Staff Attorney in the Youth Unit at Disability Rights Idaho. Abbey has been an advocate for the disabled community since her younger brother was diagnosed with autism. She worked at both the Indiana and Illinois Protection & Advocacy agencies before moving to Idaho. Beyond work, Abbey loves traveling with her husband.
[i] Luna Perez v. Sturgis Pub. Schools, 598 U.S. 142 (2023).
[ii] Idaho State Department of Education, Dispute Resolution, https://www.sde.idaho.gov/sped/dispute/.
[iii] Corrected Brief of Plaintiff-Appellant Miguel Luna Perez v. Sturgis Public Schools, Sturgis Public Schools Board of Education, Defendants – Appellees., 2020 WL 2543939.
[iv] 34 C.F.R. § 300.322(e).
[v] 20 U.S.C. § 1415(l).
[vi] Perez, 598 U.S. 142, 148 (2023).
[vii] Fry v. Napoleon Community Schools, 580 U.S. 154, 164 (2017).
[viii] 20 U.S.C. § 1415(i)(2)(C)(iii).
[ix] Perez, 598 U.S. 142, 145 (2023).
[x] 20 U.S.C. § 1414(a)(1)(A) (emphasis added).
[xi] National Center for Education Statistics, (May 2023), https://nces.ed.gov/programs/coe/indicator/cgg/students-with-disabilities.
[xii] 34 C.F.R. § 300.321(a)(1) and (7).
[xiii] Sadie Dittenber, Special education: Idaho’s $66 million problem, Idaho Education News, Nov. 1, 2023, Special education: Idaho’s $66 million problem (idahoednews.org).
[xiv] Idaho State Department of Education, Special Education, Special Education Trends Infographic (idaho.gov).
[xv] Associated Press, Idaho Schools Grapple with Special Education Rise, U.S. News, March 31, 2018, Idaho Schools Grapple With Special Education Growth (usnews.com).
[xvi] Id.
[xvii] U.S. Department of Education, About IDEA, About IDEA – Individuals with Disabilities Education Act.
The Origin and Evolving Mission of Lawyer Assistance Programs by Yvette Hourigan
by Yvette Hourigan
Trying to help other people is never stupid.”
― Stephen King, Insomnia
Introduction
Today nearly every state has a Lawyer Assistance Program (“LAP”). Some are funded through bar dues, some through the Administrative Office of the Courts, and others through the financial contributions of legal malpractice insurance carriers, to name a few. The structure and operating practices of the LAPs can be as wide-ranging as the funding of our programs. But no matter the structure or source of funding, the intention is to help the lawyer who may have issues that impair or could likely impair their ability to practice law. This service is primarily provided free of charge by way of peer-support from lawyers who have recovered from these mental health concerns and providing a connection to professional resources to help the lawyer or judge.
The genesis of lawyer assistance and the history of the national movement has been reported as follows:
It is generally accepted [ ] that the original LAP began as an effort on the part of recovering alcoholic lawyers in the state of Kentucky to help their colleagues get and stay sober. The LAP in Kentucky was begun in the mid-1980s under the aegis of the Kentucky Bar Association and was loosely based on the 12-step program of Alcoholics Anonymous. The organizational structure and operational tenets of that LAP were embraced by the American Bar Association, which in 1988 created what is now known as the Commission on Lawyer Assistance Programs (CoLAP), designed to help member state bar associations address addiction issues among their membership.[1]
I’m proud to be the Director from the Commonwealth where the national movement of lawyer assistance began. Most LAPs, including Idaho’s and Kentucky’s, are completely confidential. You can safely call your Lawyer Assistance Program for help for yourself or others, without fear of being “reported” to the Bar, the Courts, your clients, or your mom. In Idaho, Idaho Bar Commission Rule 1205 sets forth the Confidentiality and Immunity of the Idaho Lawyer Assistance Program:
- Confidentiality/Records. All records of the LAP Program shall be confidential. The LAP shall not maintain permanent records relating to the names of the participants or the nature of their participation. Each person who is the subject of any form of inquiry under these Rules shall be assigned a number, which shall thereafter be used in any subsequent action taken by the LAP Committee, the LAP Program or the Program Coordinator.
The confidentiality codified in the Idaho rule is not just a suggestion or a good idea. It’s a mandate. As such, anyone can seek assistance for themselves or for others without fear of repercussions or the involvement of disciplinary counsel. The Idaho LAP is a safe place for lawyers and judges to find resources and peer support for assistance with all types of mental health issues.
Over the years, the focus of and the services offered by LAPs have expanded. While they initially limited their focus to helping lawyers with substance use disorders (primarily alcohol), they have almost universally evolved into broad-brush programs which offer assistance for a diverse array of mental health concerns including depression and chronic anxiety. In Idaho, the Idaho Lawyer Assistance Program “recognizes that the impairment of a lawyer’s performance may result from physical, mental or emotional illness, including addiction.”[ii] The purposes of the LAP Program are as follows:
(1) Protect the interests of clients from harm caused by impaired lawyers;
(2) Educate the bench, bar and community to the causes of and remedies for lawyer impairment;
(3) develop and administer resources to assist lawyers and judges in securing treatment for addictive diseases and mental health issues, including but not limited to alcoholism and chemical dependency, by providing a system which encourages early entry of the impaired attorney, while recognizing the necessity for absolute confidentiality and trust; and
(4) Provide assistance to impaired lawyers in a manner that is separate and distinct from attorney discipline proceedings and to maintain that distinction.[iii]
Lawyers and Our Not-So-Good Mental Health
Quite frankly, the prevalence of mental health issues among lawyers and judges including depression and substance use disorder should cause each of us to seriously re-assess our own self-care (or lack thereof). With the lawyer population facing depression rates of about 30%, and our rates of alcoholism and other substance use disorders self-reported at 28% (and perhaps as high as 36% depending on the type of diagnostic tool used), we are a profession in despair.[iv] Indeed, the National Task Force on Lawyer Well-Being found that the prevalence of mental health and addiction issues in the profession are “incompatible with a sustainable legal profession” and argued that:
[In order] to maintain confidence in the profession, to meet the need for innovation in how we deliver legal services, to increase access to justice, and to reduce the level of toxicity that has allowed mental health and substance use disorders to fester among our colleagues, we have to act now.[v]
It’s fairly easy to appreciate how a substance use disorder could cause impairment and place the lawyer’s clients in danger because of the lawyer’s lack of competence. But what of mental health issues like depression and anxiety? How can those impact our law practices? The best way to explain this is to consider the symptoms of substance use disorder versus the symptoms of another mental health issue like depression.
The symptoms can be identical, and the outcomes can be identical – harm to a client, and harm to the lawyer.
The Relationship Between Good Mental Health and Ethics
But is there really a relationship between good mental health or “well-being” and an ethical law practice? The answer is yes, and the manifestation is the lawyer’s level of competence. In the Preamble to the Idaho Rules of Professional Conduct, lawyer competence is mandated. The first rule of professional conduct is that a lawyer provide competent representation to a client.[vi] Mental and physical conditions may result in impairments to the lawyer which renders them incapable of providing competent representation. The nexus between a lawyer’s mental and physical health and their competence to practice is more fully explained in the directive as to when a lawyer must decline or terminate representation, that situation being when “the lawyer’s physical or mental condition materially impairs the lawyers’ ability to represent the client.”[vii]
There are numerous studies which link impairment to breaches of ethical duties and the resultant disciplinary actions. “It has been estimated that between forty (40%) and seventy-five per cent (75%) of the disciplinary actions taken against lawyers involve practitioners who are chemically dependent or mentally ill.”[viii] “Mental illness” or lack of good mental health including chronic anxiety and stress can render a lawyer impaired and possibly incompetent to practice the case at hand.
Mental health issues like stress and anxiety may lead to hopelessness and depression. And profound mental stress, chronic anxiety, and repeatedly long workdays can cause our thinking and our responses to become less sharp and even muddled at times. These stressors will diminish our ability to make good complex decisions which, of course, is at the heart of what we do all day, every day. Further, lack of sleep or “short sleep” as it’s called in Dr. Matthew Walker’s excellent (and somewhat terrifying) book Why We Sleep, also diminishes our ability to solve complex problems.[ix] So our well-being is not just tangentially linked to our competence—it’s integral. Studies prepared in Oregon and in Louisiana found that 80% of their states’ Client Security Fund (“Escrow’) cases involved mental health issues, gambling, or chemical dependency.[x] In 2005, the Illinois Attorney Registration and Disciplinary Commission reported that impairments accounted for a disproportionate share of program awards.[xi] And finally, in Illinois, between 1998 and 2005, 28% of all attorneys disciplined were found to be impaired, and 37% of claims against the Illinois Security Fund stemmed from attorneys with impairment.[xii] Anecdotally, at least in Kentucky, the numbers are much higher. The disciplinary cases our Court considers where unethical conduct is alleged are overwhelmingly related to a mental health compromise or impairment. Lawyers are neither slackers nor thieves by nature, but a mental health crisis can lead to both.
Conclusion
Many of us began 2024 making lists of things we wanted to do better this year. They probably included getting more sleep, more exercise, more healthy food, and indulging in less of whatever vice(s) have been causing us trouble in the past; whether that’s fatty foods, excessive alcohol or drug use, or even too much social media. Improving these habits will help us feel better, but as lawyers, they can also help us work better. While taking care of our mental and physical health is a good idea, it’s so much more than that. It’s as important to our competence and performance as staying current on the law and technology. Now as we enter the second quarter of 2024, review your lists. Consider what changes you can resolve to make to improve not only the way you feel, but also the way you perform. Begin thinking about the maintenance of your good mental and physical health as exactly what it is – performance enhancement. Let it fuel the competitive side of you and you may just find that in a couple of months you’re feeling better and performing at a higher level. You’re going to work hard anyway – you may as well do it better. And if you’re a person in recovery from any of the mental health conditions your Idaho LAP provides services for (which is all of them), reach out to Jamie and see if you’re eligible to volunteer to help other lawyers. You’ll be so glad you did.
Yvette Hourigan
Yvette Hourigan, JD, CEAP, APSS, is the director of the Kentucky Lawyer Assistance Program (“KYLAP”). Ms. Hourigan graduated from Murray State University and the University of Kentucky College of Law. She is a licensed attorney, a Certified Employee Assistance Professional and an Adult Peer Support Specialist. Yvette is the 2023-2024 Chair of the American Bar Association’s Commission on Lawyer Assistance Programs, former chair of the ABA/COLAP Diversity, Equity & Inclusion Committee, and a former member of the National Task Force on Lawyer Well-Being. She speaks locally and nationally on topics impacting lawyer well-being, lawyer impairment, addiction, and suicide prevention.
[1] John W. Clark, Jr., We’re From the Bar and We’re Here to Help You, GPSolo, 21 No. 7, October/November 2004.
[ii] Idaho State Bar Commission R. 1201.
[iii] Id.
[iv] Final Report, National Task Force on Lawyer Well-Being, Creating a Movement to Improve Well-Being in the Legal Profession, August 14, 2017, https://perma.cc/MB95-V6HE.
[v] Id.
[vi] Idaho Rules of Prof’l Conduct R. 1.1.
[vii] Id. at R. 1.16.
[viii] R.D. Klein, The Relationship of the Court and Defense Counsel: The Impact on Competent Representation and Proposals for Reform. 29(3) Boston College Law Review 531 (1988).
[ix] Matthew Walker, Ph.D., Why We Sleep, (Scribner 2017).
[x] Ira Zarov and Barbara S. Fishleder, New Study Shows Recovery Saves Dollars, American Bar Association Newsletter: LPL Advisory, Vol. 6 No. 1, Spring 2002, https://www.americanbar.org/content/dam/aba/publishing/highlights_newsletter/legalservices_colap_highlights_spring02.pdf.
[xi] Annual Report, Attorney Registration and Disciplinary Commission, April 18, 2006, https://www.iardc.org/Files/AnnualReports/AnnualReport2005.pdf.
[xii] Id.