Diversity, Lawyer Well-Being and Impairment

James McCauley, Esq.

The goal of improving diversity in our legal profession calls for inclusion of our colleagues that suffer from impairment and well-being issues. In 2017, the National Task Force on Lawyer Well-Being cited two studies that reveal lawyers are two to three times more likely than the general population to suffer from anxiety, substance abuse, and suicide. Two members of our bar, Chief Justice Donald Lemons and Assistant Bar Counsel Katie Uston served on that task force and co-authored that report. The report is a call for action to all stakeholders in our legal community to organize, educate, and reach out to our colleagues that suffer from impairment for the benefit of the impaired lawyer as well as client and public protection.

The oft-quoted statement “am I my brother’s keeper” is a theme expressed in two Legal Ethics Opinions, LEOs 1886 and 1887, that discuss a lawyer’s ethical duties to reach out to an impaired lawyer before they do harm to themselves, their clients or the public. More recently, the Supreme Court of Virginia appointed a Committee on Lawyer Well-Being chaired by Justice Mims. That committee’s report, A Profession at Risk, was issued in September 2018.

I encourage all bar members to review this report. One of the most significant recommendations is to improve the funding of our starving lawyer’s assistance program we know as Lawyers Helping Lawyers (LHL), a non-profit organization that provides free assessments, clinical evaluations, counseling, and support group services to lawyers suffering from substance abuse, anxiety, depression, and age-related cognitive degeneration. LHL’s services are available for lawyers, judges, law students, and professional law firm support staff. LHL operates a 24/7 help line and can assist law firms or families concerned about an impaired lawyer and help approach that lawyer to seek help and enter a recovery program. The recommendation is to increase LHL’s annual funding from $275, 000 to $750,000, as LHL operates with only one full time clinician, Jim Lefler, and a part-time Executive Director, Tim Carroll. This is precious little manpower and resources to address the well-being crisis in Virginia when 20 percent of the 34,000+ lawyers actively licensed by the Virginia State Bar could benefit from the services provided by LHL. Fortunately, LHL has a network of volunteer lawyers throughout state, but more mental health professionals are desperately needed for LHL to successfully carry out its mission and strategic plan.

Why is our legal profession so afflicted? Some of the driving factors are: sedentary nature of our work, long hours, unusual hours, poor diet and exercise, sleep deprivation, managing and dealing with the problems of others, the adversarial nature of our work, client demands, vicarious trauma or post-traumatic stress disorders, oppressive caseloads, lack of civility by other lawyers, burnout, competition, education debt, and lack of diversity in the profession. The result is that lawyers feel isolated, lonely, anxious, and depressed. We must reduce or eliminate the stigma of law students and lawyers admitting they have a problem and seeking professional attention. We are changing our MCLE regulations to allow lawyers to sign up and get MCLE credit for courses on a wide range of topics that focus on lawyer well-being to provide education on stress management, mentoring, relaxation methods, suicide awareness and prevention, work/life balance, recognizing cognitive impairment, the warning signs of substance abuse or mental health disorders, including suicidal thinking, how, why, and where to seek help at the first signs of difficulty, the relationship between substance abuse, depression, anxiety, and suicide, how to approach a colleague who may be experiencing problems with mental health, depression, or substance abuse, how to thrive in practice and manage stress without reliance on alcohol or drugs, self-assessment or assessment of others of mental health or substance abuse risk, and lawyer assistance programs.

Effective October 31, 2018, a new comment has been added to Rule 1.1 which says that “Maintaining the mental, emotional, and physical ability necessary for the representation of a client is an important aspect of maintaining competence to practice law.” This change will help pave the way to further continuing legal education on what it means to maintain our well-being and how we can balance those concerns with the realities of practice.

To effectively self-regulate our profession, we must be more sensitive and mindful of the needs of our colleagues who are at risk. The first step, of course, is education to improve awareness of the importance of well-being in the practice and to encourage help-seeking behaviors and candid dialogue about suicide, substance abuse, and mental health disorders.

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Jim McCauley is ethics counsel at the Virginia State Bar.

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