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TCL > June 2005 Issue > Workplace Violence: Issues for Lawyers in Colorado

June 2005       Vol. 34, No. 6       Page  37
Departments
CBA Family Violence Program

Workplace Violence: Issues for Lawyers in Colorado
by Kathleen M. Schoen, Janet Mickish

This department is published quarterly to provide information about domestic violence and CBA Family Violence Program activities.

Kathleen Schoen is CBA Director of Local Bar Relations and Access to Justice—kschoen@cobar.org; Janet Mickish, Denver, is an Evaluator for the Make It Your Business Project and CEO of Mickish Consulting.


The shooting of lawyer Jeanne Elliott in 1986 in the Arapahoe County Courthouse by her client’s ex-husband was a defining workplace violence event for lawyers in Colorado.
1 (See accompanying sidebar for incidents of workplace violence that have involved Colorado lawyers.)

The murder of Cortez lawyer Richard Luhman on March 8, 2005, allegedly by his client’s ex-husband, demonstrates the continued vulnerability of those in the legal profession.2 Lawyers are visible and vocal advocates for their clients. As such, they can become targets of clients and opposing parties who might believe that lawyers create and exacerbate the negative situation in which they find themselves.

Too often, clients or opposing parties who don’t receive the outcome they desire place the blame squarely on the shoulders of the attorneys. Believing they are victims of injustice, they may conclude that there is nothing left to do but "take matters into their own hands" and avenge this unfairness.3 Although many of the incidents reported involve family law lawyers, the adversarial nature of the law creates the potential for workplace-related violence in all practice areas.

This article generally discusses safety and security issues in the Colorado legal environment. It provides "red flags" that may serve as clues for attorneys to the potential of future violence directed at them. Also presented are practical strategies to help attorneys increase their safety.

Courthouse Safety and Security

The 1986 attack against Jeanne Elliott and other subsequent incidents of violence in and around Colorado courthouses have spurred courts to evaluate safety and security policies and procedures so as to institute new, viable policies. Some low-cost procedures included trainings about violence in the workplace, staff reorganization, limiting building access to one guarded entrance, police escorts to and from parking lots, and emergency buzzers for judges and other court personnel. Other changes in judicial districts that were able to afford them included the instillation of metal detectors and surveillance cameras, hiring of more security personnel, and reconfiguration of the layout of the courthouse.

New Focus on Safety at Workplace

An analysis of publicized attacks against Colorado lawyers, as well as reports from attorneys who participated in workplace violence trainings,4 reveal two important points: (1) as courthouses become more secure, assailants move their attacks away from the courtroom to less secure locations; and (2) assailants usually plan their attacks. Courthouse parking lots, lawyers’ offices, and lawyers’ homes become the targeted areas. The focus of safety in the legal profession and workplace has shifted to helping individual attorneys become responsible for ensuring that their cars, offices, and homes remain safe for themselves, their staff, their clients, and their families.

Warnings of Possible Violent Outbreak

The notion that violent people "just snap" is a dangerous myth. Assailants almost always plan their attacks. While planning, assailants may give off many warnings. Some warnings of possible violent outbreak are listed below.

1. The assailant may tell others, in an attempt to build courage, support, and sympathy for his or her plight and revenge strategies, that the assailant is going to commit an act of violence. The assailant also may tell the attorney in order to intimidate and harass.

2. The assailant may engage in irritating, intrusive, or obnoxious behavior and minor infractions to "test the waters" to see just how far he or she can go before being stopped. For instance, a potential assailant may first sit in the parking lot of the office of a lawyer that he or she is considering targeting. If not confronted, the assailant may take another step toward violence by coming into the office for no reason and proceed to walk past the receptionist. The assailant will see how far he or she can proceed into the premises before someone intercepts.

3. The assailant may practice before actually committing violence. For instance, in the above scenario, the potential assailant may see where he or she needs to park to get a "clear shot" at the lawyer’s office. Each time the potential assailant practices, he or she gains confidence that the plan of attack and escape can be carried out.

4. The assailant may stalk the attorney in order to intimidate or gain information about vulnerabilities. This could include determining when and where doors are left unlocked, what routes are taken to work, the hours of the day or evening the attorney is alone, or when the attorney’s spouse or children are vulnerable to attack.

Initiating Effective Strategies

When attorneys decrease their vulnerability, increase their general security, and identify warnings, they are in a stronger position to initiate effective strategies to head off the violence.5 This article next discusses key "red flags" that should alert attorneys to the possible occurrence or prevention of future acts of violence. Also, strategies are described for screening for possible violent behavior.

Red Flags to Violence

Violence experts have identified specific "red flags" or clues that indicate that violent behavior may ensue. The list below is neither exhaustive nor definitive but is provided to help attorneys develop a broader awareness of what lies behind violent behavior. It also should help attorneys gain perspective on key issues to take into consideration to increase the safety of themselves and their clients.

• The person is alleged to have been violent or abusive in the past and that person is presently unemployed.6

• The person has access to guns or other weapons.7

• A couple in litigation is separated or separation is threatened.8

• The person is not functioning well: doesn’t eat, sleep, or work normally.

• The person has a history of psychiatric problems or depression.

• The person has undergone previous treatment for domestic violence or anger management issues.

• The person has rigid thoughts and beliefs.

• The person lacks problem-solving skills.

• The person is obsessed with the victim or lawyer.

• One of the parties in a case believes that he or she "owns" the other person.

• The person has a history of antisocial behavior, assault on others, stalking, domestic violence, or substance abuse.

• The person violated a protection order or other court order.

• The person currently or previously violated probation.

• The person is isolated, having few friends or family to interact with, so he or she tends to have no one with whom to "bounce off" ideas or express frustration.

• The person has expressed suicidal or homicidal thoughts or behaviors.

• The person has a long-developing and identifiable trail of conflicts, disputes, and failures or significant losses.9

• The person believes that violence, such as a physical attack, arson, homicide, or suicide, is inevitable if the outcome of the case is not in his or her favor. This may reveal itself in the screening process discussed below. Violence often happens when the violent individual has lost hope of a positive outcome.10 For instance, the risk for an intimate partner-victim, and those who assist him or her, is highest when the abuser comprehends that the partner is leaving the relationship and is not returning. That can happen when the victim tells the abuser he or she is leaving and hands the abuser a note prior to a court proceeding,11 at the time the divorce is final,12 or years later.13 Depending on the state of mind at any given time, the violent person may target both the lawyer and the client.14

• The person has made threats. Threats can be direct, conditional, or veiled. A direct threat such as, "I am going to kill you," needs no further explanation. A conditional threat such as, "I will kill you if you keep pushing me into a corner in court," also is clear. A statement such as, "I go by your house every evening on the way to the shooting range," is not as clear, but is a threat nonetheless.

Colorado Workplace Violence Involving Lawyers

 

• March 2005, Richard Luhman: Lawyer killed at his office in Cortez by Aric Miera, opposing party in a dissolution case finalized on January 20, 2005. [See  Warner, “Murder Suspect May Face the Death Penalty,” Cortez Journal (March 8, 2005).]

• January 2002, John Ciccolella: Family law lawyer shot in the eye while he worked at his office desk in Colorado Springs. The media reports that the prime suspect was a party to a domestic relations proceeding and is believed to be the same person who shot at the lawyer’s Colorado Springs house in the past. [See Emery, “Attorney Shot as He Worked in Springs Office,” The Denver Post (Jan. 25, 2002) at B-01.]

• November 1999, Frank Moya: Lawyer intervened in an attack on attacker’s former wife in the parking lot of the Arapahoe County Court. [McKibben, “Lawyer Halts Attack on Woman: Estranged Husband Faces Attempted Murder Charges,” The Denver Post (Nov. 10, 1999).]

• January 1986, Jeanne Elliott: Lawyer shot in courtroom by opposing party during a child support hearing. [See Killy, “Groups to Protest Shooting of Lawyer,” Rocky Mountain News (Jan. 16, 1986) at 6.]

These red flags may appear only during the screening process, discussed next, which can be a critical ingredient in forestalling future violence and increasing the chances for a safe environment. Therefore, the attorney must be totally attuned to the person’s responses throughout the case.

Screening for Red Flags
To Violent Behavior

The first step toward a safer work environment is to screen for possible violent behavior by the client and the opposing party. This screening may be informal or formal in nature. Informal screening involves being aware of the demeanor, tone, and content of communications, as well as cues the lawyer or other staff may pick up during initial and ongoing contact with the client.

Formal screening may take several forms. All businesses should designate a single staff person to whom all others in the office report regarding red flags or disconcerting behavior. A review of many cases of lethal workplace violence reveals that different people knew different pieces of information, but no one knew the significance of his or her information and did not grasp the whole picture.15 Violence may have been prevented if information had been funneled to one person who could have then put the pieces together and alerted proper authorities.

A screening form also may be useful. A "check sheet" covering core red flags, with space to write comments, may be tailored to each lawyer’s practice. The form should cover two key issues: history of violence16 and possible reactions to case outcomes. Some questions attorneys may wish to ask their clients include:

• Has (opposing party) ever pushed or shoved you?

• Has (opposing party) ever physically hurt you?

• Has (opposing party) ever threatened to hurt you?

• Has (opposing party) ever been arrested for or convicted of a crime?

• Has (opposing party) ever violated a court order, probation, or parole?

• What do you think (opposing party’s) reaction will be if he or she loses (employment, inheritance, child custody, money, property, standing in the community) as a result of the outcome of this case?

Security and Safety Planning

For a violent incident to occur, there must be a convergence of the following five factors: time, opportunity, ability to carry out the violence, desire, and stimulus.17 Prevention of violence involves ensuring that all five factors never exist simultaneously. Therefore, screening, security, and safety planning must be continuous and integral processes.

A key element of safety planning is to assess surroundings and take action to increase the safety for the office, car, home, and court.18 It may be advisable to work with law enforcement and other professionals to develop security and safety planning procedures that meet the unique needs of the lawyer’s practice. Several major considerations for law practice security and safety planning are described below.

Environmental Design

Assessment of the environment includes office location; nature and quality of communication equipment; quality of lighting, locks, and other security devices; bushes or other hiding places around buildings; number and security of entrances and exits; and physical separations between people who enter the building or office and employees. There are several action steps that can be taken to address the issues connected with the design of the law practice’s environment.

Office telephones can be equipped with an "all-page" option. Everyone on staff should be trained on how to use it. If a staff member or lawyer is being threatened, by activating the all-page option on the telephone, everyone in the office can hear what is happening and can alert the proper authorities based on office policies and procedures. All employees should be given a list of and ready access to emergency phone numbers. The list should be posted in more than one location in the office.

Furniture and seating arrangements in conference rooms or other areas where meetings are conducted should be configured in such a way that the attorney or staff member is close to the door, in the event a fast exit becomes necessary. If possible, the office suite itself should be set up with more than one exit.

Securing office technology also is an important aspect of safety planning. Computers should have reliable firewalls set up to keep out hackers and cyberstalkers, for example, to protect clients’ personal data. Data files should be backed up regularly.

Administrative Controls

Administrative controls involve such things as the establishment and implementation of policies and procedures. Also, the firm should establish staffing plans and work practices for the opening and closing of the office and regular working hours. Attorneys should be attuned to safety measures concerning these administrative controls.

Office policies should include providing guidance to staff members on recognizing the potential for violence. Staff members should be instructed on the proper recording or reporting of problem behavior to the designated person in the office. Key office personnel should be trained on "methods for defusing or de-escalating potentially violent situations, and instruct[ed] about the use of security devices and protective equipment. Procedures for obtaining medical care and psychological support following violent incidents should also be addressed."19

All staff members who work outside the office should have a cell phone with them, so that if they are in danger (or their car breaks down), they can call for assistance. In cases where there has been a threat to a staff member, it may be advisable for that staff member to check in with the office as he or she travels from one location to another.

Attorneys and staff members need to understand business protection orders and obtain them when needed.20 One major advantage of having a protection order is that it makes it a violation for a restrained party to come within a certain distance of the business or protected person. Without the protection order, the police do not intervene unless there is other criminal activity.

Behavioral Strategies

A key element in assessment of behavioral strategies is the evaluation of the employee’s ability to identify and address potentially violent behavior. Employee training about violence in the workplace is a critical and essential aspect in thwarting it. Training should include a working knowledge of office policies and procedures, conflict resolution, personal self-defense, dangers associated with specific tasks or work sites and relevant prevention strategies, and increased knowledge and awareness of the risk of workplace violence.

In cases in which mediation is being considered as a tool in resolving a high-conflict matter, and when such cases contain one or more red flags, it is recommended that attorneys conduct "shuttle mediation." This is mediation conducted with the parties in separate rooms at a courthouse that has metal detectors or other safety features in place.

Attorneys must take threats seriously. Although a person may have made numerous unfulfilled threats in the past, each and every threat is a warning that the potential for violence is building. Historically, threats almost always have preceded an incident of workplace violence. In reviewing past incidents of workplace violence, co-workers, students, and teachers often comment that they didn’t think the person was serious—"that’s what he always says and he didn’t try to kill anyone before."21

All crimes, big and small, should be reported to authorities. Because assailants may be "practicing" or "testing the waters," it is advisable to take note of even the smallest crime or suspicious behavior and report crimes to law enforcement.

Conclusion

A Bureau of Justice survey on crime victimization reports that 18 percent of crimes committed against persons aged 12 or older is workplace violence.22 This amounts to 1.7 million "violent victimizations" per year.23 These "violent victimizations" include homicide, rape/sexual assault, robbery, aggravated assault, and simple assault.24 According to the report, 94 percent of violent behavior consists of aggravated and simple assaults.25 These statistics do not include harassment, stalking, cyberstalking, vandalism, terrorism, or threats.

Violence in the workplace is a problem for all businesses and professions, the legal profession among them. Taking steps to recognize and respond to threatened violence or an incident of violence will save lawyers and law firms financial costs, credibility costs, emotional costs, and legal costs. Most important, advance safety measures could save a life. It makes good business sense to plan and develop safety and security policies and procedures in the legal workplace.

NOTES

1. Elliott remains confined to a wheelchair as a result of her injuries. See Killy, "Groups to Protest Shooting of Lawyer," Rocky Mountain News (Jan. 16, 1986) at 6.

2. See Warner, "Murder Suspect May Face the Death Penalty," Cortez Journal (March 8, 2005), available at http://www.cortezjournal.com/asp-bin/article_generation.asp?article_ty pe=news&article_
path=/news/05/news050305_3.htm.

3. Comments by Dr. John Nicoletti, co-founder of Nicoletti-Flater Associates and a police psychologist for more than twenty-five years, at Workplace Violence Conference, Feb. 2002, co-sponsored by the Colorado Bar Association and Colorado Attorney General’s Office. Dr. Nicoletti has worked with national corporations and government agencies, such as the U.S. Postal Service, United Airlines, NASA, John Manville, and U.S. Department of Energy, and is considered a national expert in workplace violence. He co-published Violence Goes to Work (Mountain States Employers Council, 1997), which has been reprinted four times.

4. During 2002–2003, the authors conducted workplace violence trainings in nineteen local bar associations in Colorado. Many attorneys reported multiple threats of bodily harm, and three attorneys reported that they had been physically attacked.

5. Supra, note 3.

6. Glass et al., "Risk of Intimate Partner Femicide in Violent Relationships," Domestic Violence Rep. (Dec./Jan. 2004) at 30.

7. Women who were threatened with guns or other weapons were twenty times more likely than other women to be killed. Even when there has not been a threat, but a gun is in the house, there is a six-fold increase in the likelihood that an abused woman will be killed. Campbell, "Assessing Risk Factors for Intimate Partner Homicide," NIJ Journal, No. 250 (U.S. Dept. of Justice, Office of Justice Programs. 2003) at 16.

8. Three-fourths of homicide victims and 85 percent of women who had experienced severe but nonfatal violence had left or tried to leave a relationship in the past year. Findings of Chicago Women’s Health Risk Study: Block, "How Can Practitioners Help an Abused Woman Lower Her Risk of Death?" NIJ Journal, No. 250 (U.S. Dept. of Justice, Office of Justice Programs, 2003) at 6.

9. Violence is more than an isolated, impulsive act; it is a process with identifiable turning points and trajectories. Supra, note 3.

10. Id.

11. In one case, the defendant in a permanent protection order hearing became agitated when the plaintiff, a woman who had been severely abused by this person, handed him a note informing him that she was filing for divorce. An aware mediator recognized the potential for violence and suggested that he call his therapist. At least for the moment, the situation was diffused.

12. The ex-husband of a dissolution client shot Richard Luhman, a lawyer in Cortez, six weeks after entrance of the decree. See note 2, supra.

13. In one case, the abuser returned several years after the divorce to kill his ex-wife after realizing he and his wife were never going to get back together.

14. Although lawyers practicing family law are more often targets of violent behavior, other areas of law can invoke the same type of emotional reaction, such as debt collection. Interviews by authors with Colorado lawyers from 2001 to 2005.

15. Supra, note 3.

16. The best predictor of future violence is a history of violence. See Tardiff, "The Current State of Psychiatry in the Treatment of Violent Patients," 49 Archives of Gen. Psych. (1992) at 493-499.

17. Supra, note 3.

18. Information adapted from Violence in the Workplace, Risk Factors and Prevention Strategies, Nat’l Inst. of Occupational Safety and Health, available at http://www.cdc.gov/niosh/violrisk.html.

19. Id.

20. See CRS §§ 13-14-101 and -102.

21. Supra, note 3.

22. See National Crime Victimization Survey: Violence in the Workplace, 1993–1999, Bureau of Justice Statistics (Dec. 2001), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/vw99.pdf.

23. Id. at 1.

24. Id.

25. Id.

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