ABA’s Focus on Lawyers’ Well-Being Is ‘Right Thing to Do’ (Corrected)

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By Mindy Rattan

The American Bar Association is on a mission to give the legal industry a new focus: improving the well-being of lawyers, because members of the profession report alarmingly high rates of depression, anxiety, and substance abuse.

Over 60 law firm leaders, senior risk managers and executives from malpractice carriers gathered April 25 to take stock of the current state of lawyer well-being in law firms and brainstorm on how firm culture can be improved. The workshop, attendance at which was limited to 75 top-level law firm, insurance, and risk management professionals, was held before the ABA officially kicked off its spring legal malpractice conference in Washington, D.C.

The organizers said the workshop would “generate ideas, innovations, and tools” to develop a national model policy on lawyer well-being.

The Why

Two 2016 studies set off alarm bells on the mental health of the legal profession. One surveyed practicing lawyers, the other law students. Twenty-one percent of lawyers qualified as problem drinkers and 25 percent of law students were at risk for alcoholism. Seventeen percent of law students experienced depression, 23 percent mild to moderate anxiety, and six percent had suicidal thoughts in the past year.

For lawyers, 28 percent reported struggling with depression and 19 percent reported symptoms of severe anxiety. Over the course of their careers, however, 46 percent had struggled with depression, 61 percent had experienced symptoms of anxiety, and 11 1 2 percent had experienced suicidal thoughts.

Faced with these statistics, which signaled “an elevated risk in the legal community for mental health and substance use disorders tightly intertwined with an alcohol-based social culture,” a small group of lawyers decided to form a National Task Force to create a “movement towards improving the health and wellbeing of the legal profession.” That initial group included members of the National Organization of Bar Counsel, the Association of Professional Responsibility Lawyers, and the ABA Commission on Lawyer Assistance Programs, and eventually grew to a task force of about 20.

The call to action was three-fold: it’s “the right thing to do,” ABA President Hilarie Bass said; it’s good business; and it promotes professionalism. In August 2017, the task force issued a report, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.

The report made 44 recommendations directed to various “legal stakeholders such as judges, regulators, law firms, law schools, bar associations, professional liability carriers and lawyer assistance programs,” to improve lawyers’ well-being. Those recommendations focus on five themes:

  • 1. identifying stakeholders and the role each of [them] can play in reducing the level of toxicity in [the legal] profession;
  • 2. eliminating the stigma associated with help-seeking behaviors;
  • 3. emphasizing that well-being is an indispensable part of a lawyer’s duty of competence;
  • 4. educating lawyers, judges, and law students on lawyer well-being issues; and
  • 5. taking small, incremental steps to change how law is practiced and how lawyers are regulated to instill greater well-being in the profession.
In September 2017, the ABA Board of Governors formed the “Working Group to Advance Well-Being in the Legal Profession,” at Bass’s request, “to examine and make recommendations regarding the current state of attorney mental health and substance use issues with an emphasis on helping legal employers support healthy work environments.”In February 2018, the ABA House of Delegates passed resolution 105, which urged all stakeholders to consider the report’s recommendations.

 

The working group’s current goal is to present to the ABA’s House of Delegates in August a “model policy” for law firms to use, along with a toolkit to improve lawyers’ well-being.

It’s Business, But It’s Personal Too

The workshop opened and closed with personal remarks from Bass and president-elect Bob Carlson. Both said they knew lawyers who had committed suicide, and that they wished to help others avoid the same fate.

Bass emphasized the tremendous cost to law firms caused by lawyer turnover.

Working group and task force member Anne Brafford, a former partner at Morgan, Lewis & Bockius, said healthy doesn’t just mean free from disease. It also encompasses “well-being.” Brafford said well-being was good for lawyers’ competence, but that studies showed that lawyers are lonely, sleep deprived, and dissatisfied with their jobs.

Brafford created a lawyer well-being start-up kit, which has 10 recommendations to help “build a structural support system than enables lawyers’ growth and pathways to success while maintaining physical and psychological health.”

Participants, aided by members of the working group, liasons, and ABA staff, rotated amongst 10 tables to brainstorm about the challenges to lawyer well-being and how to address them. Some clear themes were that change needs to come from law firm leaders; that mentoring is critical; and that the method of determining compensation must change, though there was no clear consensus on how. Other insights included:

  •  The practice of law is client-driven, so if clients demand that law firms value attorney well-being, that will make law firms value it.
  •  Lawyers need to change their vocabulary to value wellness. And law firms need to re-define success to value wellness.
  •  CLEs on wellness can be used to educate lawyers and could be mandatory to help change law firm culture.
  •  High billable hour requirements are a barrier to improving lawyer well-being.
  •  Technology has contributed to the 24/7 demands on lawyers and is a challenge to lawyer well-being.
  •  Lawyers must have more autonomy over their schedules to achieve well-being.
  •  A work/life balance is important to achieving well-being.
  •  Malpractice carriers can focus on wellness during underwriting and develop a risk profile to help change law firm culture on well-being.
  •  Law firms can monitor for behaviors that may indicate a lawyer’s lack of well-being.
  •  Organizers of law-related functions can de-emphasize the availability of alcohol.
The working group will now carefully review the ideas generated at the workshop to determine if any priorities need to be changed. And the working group will consider how to implement these suggestions.

 

Plenary Session

At a conference session open to all attendees, a panel continued the discussion on lawyer well-being. The panel consisted of Jane Long, vice president and claims counsel at Lawyers Mutual Insurance Company of Kentucky; Robert Denby, senior vice president of loss prevention at ALAS in Chicago; Terry Harrell, chair of the working group and executive director of the Indiana Judges and Lawyers Assistance Program; and Bree Buchanan, co-chair of the task force, working group member, and chair of the ABA’s Commission on Lawyers’ Assistance Programs.

Buchanan, herself a recovering alcoholic and addict, emphasized that well-being must take into account what is needed for a lawyer to “thrive.”

Numerous states, including Virginia, Tennessee, Colorado, Florida, New Mexico, Arkansas, Illinois, Texas, New Hampshire, West Virginia, Wisconsin, Massachusetts, Vermont, and Minnesota, have taken action in response to the task force’s report, whether by establishing their own task force or committee to study the report or well-being in general, or by requiring new lawyers to attend well-being training.

Are health insurers involved in the attorney well-being movement? a participant asked. The panel indicated that insurance is being addressed on a state-by-state basis. For instance, Texas has a fund for lawyers who can’t afford treatment, Buchanan said. And Harrell said the Indiana state bar was looking into health insurance for small firm and solo practitioners.

Another participant cautioned about promising confidentiality to lawyers seeking help, because a firm’s internal investigation, for example, may reveal ethical violations that must be reported to disciplinary counsel. Harrell said many lawyer assistance programs are confidential and are not permitted to report lawyers who committed misconduct. She added that seeking help from a lawyer’s assistance program may be a mitigating factor in a disciplinary action.

To contact the reporter on this story: Mindy Rattan in Washington at mrattan@bloomberglaw.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bloomberglaw.com

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

 

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