ABA Working Group Tackles Mental Health and Substance Use Crisis

Alarming Rates of Substance Use and Mental Health Problems Revealed

The ABA’s Working Group to Advance Well-Being in the Legal Profession grew out of two studies that sent ripples of concern across the legal profession. In 2014, the ABA Board of Governors selected a coalition of ABA entities to receive an award from its Enterprise Fund to research law student well-being. The Survey of Law Student Well-Being measured alcohol use, drug use, and mental health issues among law students. Roughly one-quarter to one-third of respondents reported frequent binge drinking, misuse of drugs, and/or mental health challenges. Moreover, significant majorities of those law students most in need of help were reluctant to seek it.

In 2016, the ABA’s Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation published a study of approximately 13,000 practicing lawyers. The study found that between 21 and 36 percent of lawyers qualify as problem drinkers, rates significantly higher than those for the general population. Approximately 28 percent, 19 percent, and 23 percent are struggling with some level of depression, anxiety, and stress, respectively. Notably, the study found that younger lawyers in the first 10 years of practice and those working in private firms experience the highest rates of problem drinking and depression.

Those who do not suffer from diagnosable mental health or substance use disorders are still not “thriving and functioning at their emotional, physical, and professional best,” laments Bree Buchanan, Austin, TX, a member of the working group. Research reflects that about a quarter of lawyers are workaholics, which is more than double that of the 10 percent rate estimated for U.S. adults generally. At the same time, many lawyers experience a “profound ambivalence” about their work. Study participants also reported social alienation, work addiction, sleep deprivation, job dissatisfaction, a “diversity crisis,” complaints of work-life conflict, incivility, a narrowing of values so that profit predominates, and negative public perception.

National Task Force Seeks Attorney Well-Being

These studies triggered a coalition of entities within and outside the ABA to form the National Task Force on Lawyer Well-Being. The task force defined attorney well-being as a continuous process whereby lawyers seek to thrive in each of the following areas: emotional health, occupational pursuits, creative or intellectual endeavors, sense of spirituality or greater purpose in life, physical health, and social connections with others.

After analyzing the data and seeking input from numerous sources, the task force issued a report in August 2017. The report presented a series of recommendations directed at judges, regulators, legal employers, bar associations, professional liability carriers, and law schools.

The task force noted that legal employers can play a large role in contributing to lawyer well-being. The report encouraged legal employers to create organizational infrastructure, policies, practices, and training to encourage attorney well-being. The task force suggested that, among other things, employers monitor their employees for signs of work addiction and poor self-care, combat social isolation and encourage interconnectivity, and emphasize the service-oriented core at the center of the practice of law.

Creating a Movement

In September 2017, at President Hilarie Bass’s request, the ABA Board of Governors created the working group 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. “We needed to create a movement,” explains Terry Harrell, Indianapolis, IN, chair of the working group.

One of the group’s first steps was the sponsorship of Resolution 105, which the ABA House of Delegates adopted at the Midyear Meeting in Vancouver. Resolution 105 presented the research underlying the national task force’s 2017 report and urged stakeholders to consider its recommendations.

“Astonishingly, there has been almost no pushback on the national task force’s recommendations,” says Buchanan. “I think that is evidence that this is the right idea at the right time,” she adds.

Since the Midyear Meeting, the working group has sought to develop practical tools to help legal employers support healthy work environments. To formulate a national model policy on lawyer well-being for use in law firms, the working group held a National Workshop on the Advancement of Attorney Well-Being in the Law Firm Setting on April 25, 2018. Firm leaders, risk management providers, and subject matter experts participated in a series of small group discussions aimed at tackling solutions for healthier lifestyles, addiction and mental health issues, and tool sets to help employers facilitate well-being.

The workshop was “well attended and the participants were engaged,” reports Buchanan. “One of the surprising things that arose out of the workshop was crystalizing what a profound issue this is for recruiters in the legal profession,” she adds. “The younger generation of attorneys is simply not willing to endure what many in the profession did years ago.”

The workshop produced “many good, small ideas,” says Harrell. “Incremental steps and incremental rewards” will hopefully provide motivation for employers to stay focused on a task that can seem unwieldy and daunting, believes Harrell, who likens the process to the small victories needed when training for events like a marathon. The participants wanted to address “practical things that legal employers can do,” recalls Harrell. For example, participants discussed experiences leading mindfulness courses, creating running and biking groups, and holding yoga sessions instead of cocktail parties.

Legal Employers Asked to Pledge and Provide Support

One of the products of the workshop was a draft version of Proposed Resolution 103, which would adopt an ABA Model Impairment Policy for Legal Employers and urge legal employers to do the same.

Resolution 103 “is simply a technical fix that updates an outdated model impairment policy that was adopted in 1990,” notes Buchanan. The revised policy is “well-researched and well-vetted,” adds Buchanan. The 1990 policy primarily focused on substance use. The new Model Policy, by contrast, incorporates modern data reflecting current rates of mental health issues in the legal profession and reflects the current resources available to legal professionals in the treatment of problematic substance use and mental health disorders.

The draft Model Policy defines “impairment,” outlines a duty to report existing or threatened impairment, and sets out guidelines for confidentiality. The policy also addresses retaliation and provides specific procedures upon a determination of impairment. The working group is currently incorporating comments from various groups and plans to finalize the Model Policy in time for a vote at the January 2019 meeting of the House of Delegates.

In addition to Resolution 103, the working group is finalizing a pledge campaign and has unveiled a toolkit for legal employers. The seven-point pledge will ask legal employers to “(1) educate staff on well-being, (2) challenge the expectation of heavy drinking at social events, (3) build relationships with partners like health care providers, (4) provide resources to improve well-being, (5) adopt an impairment policy, like the Model Policy, (6) promote self-care and help-seeking activities, and (7) attract talent with a focus on well-being,” explains Harrell.

The toolkit, along with an easier-to-digest nutshell guide, provides employers with a host of resources to accomplish those goals. It includes information on how to stay healthy, assessments to help employers identify problems, and research on the cost to employers of failing to address the issue. The toolkit and nutshell guide are available on the working group’s website.

Matthew S. Mulqueen is an associate editor for Litigation News.

Resources

• ABA Working Group to Advance Well-Being in the Legal Profession, available at http://bit.ly/LN441-WG.
• ABA Resolution 105 (Adopted).
• ABA Resolution 103 (Proposed).
• Model Rule of Prof'l Conduct 1.1, Competence.
• National Task Force on Lawyer Well-Being, available at http://bit.ly/LN441-NTF.
• The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, available at http://bit.ly/LN441-wellbeing.
• ABA Commission on Lawyer Assistance Programs, available at http://bit.ly/LN441-LAP.
• P. R. Krill, R. Johnson, & L. Albert, “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys,” 10 J. Addiction Med. 46 (2016).
• Jerome M. Organ, David B. Jaffe & Katherine M. Bender, “Suffering in Silence: The Survey of Law Student Well-Being and the Reluctance of Law Students to Seek Help for Substance Use and Mental Health Concerns,” 66 J. Legal Educ. 116 (2016).
• D. L. Chambers, “Overstating the Satisfaction of Lawyers,” 39 Law & Soc. Inquiry 1 (2013).

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