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January 01, 2018

Opening Statement: Let’s Help Lawyers Get on the Path to Well-Being

Koji F. Fukumura

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Within the span of a few days in June 2017, two prominent lawyers took their own lives; they were not the first to have done so by that time last year. This caused me, in thinking about priorities for my year as chair of the Litigation Section, to focus on mental health and wellness in the profession. A colleague suggested that I look at the CoLAP website for ideas. I had no idea what CoLAP (the ABA Commission on Lawyer Assistance Programs) meant or what it did. Upon visiting the CoLAP website, however, I found a wealth of information on subjects ranging from suicide prevention and mental health to substance abuse and wellness initiatives. CoLAP, similar to its lawyer assistance counterparts in each of the states and many of the territories, has a mission to

assure that every judge, lawyer and law student has access to support and assistance when confronting alcoholism, substance use disorders or mental health issues so that lawyers are able to recover, families are preserved and clients and other members of the public are protected.

I decided to form a Mental Health and Wellness Task Force aimed at delivering some of the important information curated by CoLAP and similar organizations to our Section members. Thus, in every publication during my year, at every CLE conference, and in our monthly membership newsletters, we are including articles or resources, or putting on programs focused on mental health and wellness.

These efforts, however, are not enough. There are a significant number of our members—our colleagues and friends—who are struggling with depression, anxiety, severe stress, or substance abuse. We need the leaders of law firms, law departments (corporate and governmental), and the judiciary to take an active and visible role in dealing with mental health and wellness issues in their workplaces. It is a priority not only for those employees and their families but also for the effective and competent delivery of client service.

Educate. Education is critical to this effort. First, it lets our colleagues who are suffering know they are not alone. Second, it alerts management and supervisory partners or judges that, despite what they may think, there are, in fact, colleagues in their firms, law departments, or courthouses suffering from mental health and substance abuse problems right now. Many of those colleagues are suffering in silence and not seeking treatment. Indeed, just last year, the Journal of Addiction Medicine published the results of a study assessing substance use and other mental health issues among a sample of 12,825 licensed, employed attorneys. Patrick R. Krill et al., The Prevalence of Substance Use and Other Mental Health Concerns among American Attorneys, 10 J. Addiction Med. 46–52 (Jan.–Feb. 2016).

The study, funded by the Hazelden Betty Ford Foundation and CoLAP, was the largest and most robust to date by a significant margin. It found that “[l]evels of depression, anxiety, and stress among attorneys were significant with 28%, 19%, and 23% experiencing symptoms of depression, anxiety, and stress, respectively.” Id. at 46. One in five respondents also screened positive for “hazardous, harmful, and potentially alcohol-dependent drinking.” Id. Consider also that there may be cultural differences in both the frequency of mental health issues and the likelihood that a person from a different cultural background might seek help. For example, a recent study found that Asian Americans are far more likely to feel moderate to severe anxiety than the cross-section of attorneys in the 2016 study (36 percent versus 19 percent in the 2016 study) and far less likely to seek help or treatment (68 percent of Asian Pacific American respondents reported not seeking any help or treatment). Eric Chung et al., A Portrait of Asian Americans in the Law; Yale Law Sch. & Nat’l Asian Pac. Am. Bar Ass’n (2017).

Destigmatize and audit. While education is critical, it is not itself sufficient. Leaders should formulate a plan to remove barriers to treatment by destigmatizing mental health and substance abuse problems (and treatment) and by auditing the benefits they provide to ensure that both employer-provided health benefits and employee assistance programs (EAPs) are both effective and properly marketed internally. In the 2016 study cited above, respondents reported that the two most common barriers to seeking treatment were not wanting others to find out they need help and concerns regarding privacy or confidentiality. Krill et al., supra, at 50.

These concerns are hardly surprising. A negative stigma (or even the perception of a negative stigma) associated with mental illness or substance abuse can paralyze a person in need of help. Removing these barriers is an essential step in addressing mental health and substance abuse problems effectively, and potential solutions are fairly obvious and easy to implement. A National Alliance on Mental Illness (NAMI) blog post lists a number of steps one can take. Among the more compelling to me are (1) talk openly about mental health, (2) educate yourself and others, (3) be conscious of language, (4) encourage equality between physical and mental illnesses, and (5) show compassion for those with mental illness. Laura Greenstein, 9 Ways to Fight Mental Health Stigma, NAMI Blog (Oct. 11, 2017), The message and any action, however, must come from the very top of your organization. A supportive tone at the top sends the message that management is not only compassionate and empathetic but also wants its attorneys to get treatment.

Getting past barriers to treatment is of no use if there are no effective and readily available resources for your lawyers to access. Management should not only review the mental health coverage under each of the health insurance plans your firm, company, or governmental entity offers but also review the effectiveness of related EAPs. EAPs are an often overlooked but valuable resource for employees and their families that provide a range of services to help with personal problems. By way of example, EAPs have been shown “to effectively reduce depressive symptoms, particularly thoughts about suicide,” and to increase the likelihood that workers will receive appropriate treatment for depression and alcohol or substance abuse. Developing an Employee Assistance Program, Mich. Med. Depression Ctr., www. Consistent with the “tone at the top” message above, “[g]reater perceived social support from fellow workers and encouragement from supervisors increases the likelihood workers will use an EAP.” Id. Finally, you should review how the existence of the EAPs and the resources they provide are marketed to your workforce because up to 40 percent of workers are unaware if their workplace has an EAP or of the services it provides. A. Charbonneau et al., The Community Initiative on Depression: Report from a Multiphase Work Site Depression Intervention. 47 J. Occupational & Envtl. Med. 60–67 (Jan. 2005).

As leaders of the profession, we need to act now to ensure not only the physical but also the mental well-being of our colleagues. The Path to Lawyer Well-Being sums up perfectly where we are and where we need to be:

To maintain public 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. Change will require a wide-eyed and candid assessment of our members’ state of being, accompanied by courageous commitment to re-envisioning what it means to live the life of a lawyer.

I hope you will join me in this important effort.

Koji F. Fukumura

The author is a partner with Cooly LLP, San Diego, and chair of the Section of Litigation.