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After the Bar

Professional Development

How to Talk about Mental Health with Your Employer

Joseph E Ankus

How to Talk about Mental Health with Your Employer

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As attorneys, we are trained to assess risk, “foresee the future,” and protect our clients’ rights. Unfortunately, we often don’t use these valuable skills to help ourselves. This was certainly true from my own experience with anxiety and career burnout. As you read this article, remember that most people who need professional help—and get it—can feel much better. 

My goal is to encourage you to appropriately address any mental health challenges you may have without fear, stigma, or shame. In this article, I share a bit of my personal story as a young lawyer and share thoughts from other professionals who give perspectives about how someone might approach an employer about burnout and the ethical implications of having an extremely high caseload.

The First Day . . . and Then the Last

On the first day of my new job at a major law firm, my supervising partner ceremoniously dropped 15 large commercial litigation files on my desk. With a broad grin and the best intentions, he proudly proclaimed, “these are ALL YOURS!” As my office door closed behind him, I felt like I was hit by a bat. Until that precise moment, almost all my legal experience was limited to drafting discrete research projects. I had never spoken directly to a client, and I had never seen an actual client file. As luck would have it, I now had 15 “new friends,” each vying for my attention. To be blunt, I was terrified.

Life Changed That Day

Malpractice claims, getting fired, and being ridiculed by colleagues flashed through my racing mind. How could this be? I had graduated at the top of my class, was on law review, and easily passed three different state bar exams. By all objective measures, I should easily transition from star student to star lawyer. Of course, as we all know, theory often collides with reality. Professionally and personally, I had just hit a brick wall at full speed.

For those of us who struggle with anxiety, it is a pervasive and insidious foe that can hijack our minds. For those who are not as anxious, it may be impossible to understand exactly how we think and feel. Well-intentioned colleagues and friends might try to tell us not to worry or to relax, but we can’t just “snap out of it.” I promise that if we could, we would!

A Sink or Swim Mentality

Rather than have an up-front and direct discussion with my supervisor—who is my close friend more than 30 years later—I silently internalized my stress until it became unbearable. I lost 25 pounds, couldn’t sleep, and otherwise tried to tread water at work. I lasted nine months until I left my firm. As I packed my things to go, I distinctly remember picking up my diplomas from the floor because I had never even hung them on my office wall.

In retrospect, if I had been more open about my struggles and more dedicated to recovery, I may well have stayed. For a frame of reference, this happened in 1991, and new lawyers had only one of two choices, “sink or swim.” Psychological issues were rarely, if ever, spoken about, and many still considered anxiety and depression signs of weakness or some personal failing.

Mental Health and Lawyer Competency

Fast forward to today. Fortunately, mental health and wellness are now part of a robust and engaged dialogue among employers and employees. The proliferation of employee assistance programs (EAPs), state and national bar resources, and psychological telehealth options reflect both the need for and availability of qualified professionals. To be fair, anxiety serves a valuable purpose by keeping us alive and alerting us to perceived danger. Left unchecked, however, it wreaks havoc on lives and can debilitate even the strongest among us.

Attorney ethics expert and Florida lawyer Brian Tannebaum notes that lawyers have professional responsibilities not only to themselves and their families but also to their clients and law firms. A lawyer’s mental health directly relates to several ethical rules that are a road map ensuring that lawyers take care of themselves and their clients as they uphold their professional obligations.

The ABA Model Rules on competence, communication, and diligence are codified, to some extent, in every state. In part, they guide lawyers in addressing their mental health. The duty of competence under Model Rule 1.1 is clear: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”

If a lawyer’s mental health conflicts with their ability to be thorough and prepared, a client may be negatively affected. As such, under Rule 1.1, a mentally impaired lawyer may be unable to provide competent representation. To interpret this rule, lawyers must not confuse a lack of ability to provide competent representation with the medical term “incompetence.” While both derive their etymology from the same word, they have distinctly different meanings. Lawyers can be “competent” and provide incompetent representation if they suffer from an untreated or undiagnosed mental health condition. Lawyers must be honest with themselves and their firm to the extent possible. By extension, if their mental health prevents them from providing competent representation, it also invokes Model Rule 1.4 regarding communication.

Mental Health and Client Communications

Model Rule 1.4 is lengthy. It specifies what types of communication are required between a lawyer and their client. In sum, a lawyer must “keep the client reasonably informed” and provide “prompt” communication when decisions need to be made or if information has been requested. 

Unfortunately, there are days when we must give a client bad news. If a lawyer’s mental health prevents them from sharing this information in a timely and accurate manner, the results (i.e., a missed deadline) can be quite damaging. In this situation, the lawyer should communicate to the law firm that someone else may need to intervene and communicate with the client. As lawyers, we need to heed the physician’s oath to “do no harm” as well as the further admonition of “don’t make things worse.”

Talking to Your Employer

Linking competence and communication is Model Rule 1.3, which relates to diligence. Rule 1.3 states that “a lawyer shall act with reasonable diligence and promptness in representing a client.” If a lawyer is not acting with competence or not communicating properly, there is a lack of reasonable diligence. An overwhelmed lawyer must have a frank conversation with their law firm before anyone is negatively affected.

While some people may have difficulty understanding mental illness’s effect on a particular lawyer, they will always understand the gravity of a valid malpractice lawsuit or a well-founded bar complaint. A lawyer suffering from mental health issues must be supported when they tell their partners they are having trouble and need to take a step back. To do any less violates the essence of the helping profession to which we all belong.

Labor and employment attorney Mark Neuberger advises clients on workplace issues and reminds us that mental health and substance abuse problems are not like wine—they don't get better with time. If a lawyer believes they have a problem, they should address it, on a confidential basis, with their employer as soon as possible. Waiting until one reaches a crisis point or makes a costly mistake may make it difficult, if not impossible, to save their job.

Find Someone Empathetic

If you are going to have a confidential discussion with your employer, think carefully about the best person to approach. You often have options, and Neuberger recommends selecting the person who has the proper authority and is also empathetic.

It is also helpful to research all your available benefits. Virtually every group medical insurance policy covers mental health and substance abuse treatment. In addition, if you will take time away from work, explore what types of salary continuance and disability pay and leave options may be available.

Ask your human resources manager if your employer has an employee assistance program. Often this valuable benefit is “hidden” inside a medical insurance plan, so look carefully.

For those who don’t know where to turn for help—or if your employer does not have an EAP—virtually every state bar association has a hotline that can provide lawyer-centered assistance and resources. For almost any situation, help is often available.

Finally, know the law. Under various federal, state, and local laws, employees who suffer from mental disabilities may be protected from discrimination. While we all hope that employers support employees in getting well, in the unlikely event they don’t, consider the wide range of legal protections that may be available.

Additional Resources

Why Lawyer Mental Health and Wellness Matters

Attorney and mental health expert Joe Ankus joins the ABA Young Lawyer Rising podcast to discuss the importance of addressing mental health concerns in the legal industry and share constructive tips on how to improve lawyer well-being to become a happier practitioner.