Let's allocate just one of our MCLE hours to mental health and substance abuse disorders. For the sake of the profession.

Let's allocate just one of our MCLE hours to mental health and substance abuse disorders. For the sake of the profession.

How many times have you heard about lawyers having high rates of depression and addiction? Probably too many times.

The New York Times recently published an article titled “The Lawyer, the Addict” in which the ex-wife of a man identified only as “Peter” – a patent lawyer with a high-powered Silicon Valley-based law firm – wrote about how he had died of a systemic bacterial infection common to intravenous drug users. Her article details her attempt to figure out how she “and everyone else in his world” had missed Peter’s rampant drug abuse.

The article seemed to spread like wildfire. Days later, it was still among the most popular New York Times website articles. The author appeared on a National Public Radio news program to talk about her article and research.

But I found nothing surprising in the author’s conclusion that “drug abuse among America’s lawyers is on the rise and deeply hidden.”

So here’s a proposal: Arizona needs to require its lawyers to take yearly CLE classes on mental health or substance-use disorder. Sitting through a CLE hour each year might not keep lawyers from becoming addicted to legal or illegal drugs, but it might help non-addicted lawyers to recognize the signs and to understand our ethical obligations when we know our colleagues are struggling. At the very least, they could look at it as a cost of doing business.

In February, the American Bar Association House of Delegates approved a resolution amending the ABA’s Model Rule for Minimum Continuing Legal Education to include a requirement that lawyers receive at least one hour of mental health or substance use disorder seminars every three years. It also calls for one hour of diversity and inclusion seminars every three years.

The report accompanying the resolution justified the mental health/substance abuse model-rule amendment by saying that

[t]he need for required Mental Health and Substance Use Disorders Programming was underscored in early 2016 with the release of a landmark study conducted by the Hazelden Betty Ford Foundation and the American Bar Association Commission on Lawyer Assistance Programs, which revealed substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession. The study, entitled “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys,” found that twenty-one percent of licensed, employed lawyers qualify as problem drinkers, twenty-eight percent struggle with some level of depression, and nineteen percent demonstrate symptoms of anxiety. The study found that younger lawyers in the first ten years of practice exhibit the highest incidence of these problems. The study compared lawyers with other professionals, including doctors, and determined that lawyers experience alcohol use disorders at a far higher rate than other professional populations, as well as mental health distress that is more significant. The study also found that the most common barriers for lawyers to seek help were fear of others finding out and general concerns about confidentiality. Many organizations, including the ABA Commission on Lawyer Assistance Programs, have seen the study’s findings as a call to action, which led to this Model Rule’s recommendation that all lawyers take one credit of Mental Health and Substance Use Disorder Programming every three years

[Footnotes omitted.] The idea is that requiring all lawyers to attend such programs may help the lawyers who “may hesitate to attend such programs due to potential stigma.”

The model MCLE rule defines “mental health and substance use disorders programming” as seminars that “address[] the prevention, detection, and/or treatment of mental health disorders and/or substance use disorders, which can affect a lawyer’s ability to perform competent legal services.”

Here’s why we need to designate a specific requirement. In Arizona, programs about mental health or substance abuse count toward our current yearly three-hour professional responsibility requirement. But guess what else counts? The MCLE rule – Ariz. Sup.Ct. Rule 45 – defines “professional responsibility” as including instruction in

legal and judicial ethics, professionalism, and malpractice prevention, and may include such topics as substance abuse, including causes, prevention, detection and treatment alternatives, attorneys' fees, client development, law office economics and practice, alternatives to litigation for managing conflict and resolving disputes, stress management, and the particular responsibilities of public lawyers, judges, and in-house counsel, to the extent that professional responsibility is directly addressed in connection with these topics.

[Rule 45(a)(2); emphasis added.] With this option, who wouldn’t prefer attending a seminar about collecting fees and getting more clients over a seminar – possibly depressing, possibly uncomfortable – about mental health or substance abuse? Especially if one isn’t an abuser. Or someone who doesn’t want to face up to his or her own conduct.

And one hour every three years, as the model rule suggests, is hardly enough. Let’s designate one hour every year. Because in attempting to reconstruct Peter’s last years, the New York Times article author also blames dysfunction in the legal profession.

One could quibble with this, as many of her examples show that Peter could just have been an obsessive, uber-Type-A personality. An example: early in his legal career, Peter’s boss called him on Christmas Day to make sure Peter was going to finish a brief by that evening. Peter skipped dinner and finished the brief. Another: as an associate at law firms, Peter did not display any photos of his family in his office, because he didn’t want partners to view him as being distracted by his family. And how, at his memorial service, “[q]uite a few of the lawyers attending the service were bent over their phones, reading and tapping out emails,” unable to stop working long enough to listen to what was being said about their colleague who had died.

Are these examples the law profession’s fault? Or adults who make screwy choices? If Peter had agreed to finish a brief by Christmas evening, he apparently chose to comply with unreasonable work demands over his family. He chose to project a certain image to his firm. And those lawyers at the memorial service were no doubt being rewarded for billing time.

Law firms are made up of people. The author’s examples show people – Peter, his bosses, his colleagues – whose priorities are clearly warped. Yes, warped. If someone didn’t notice Peter’s struggles, then clearly his law firms and colleagues needed help identifying people with such problems. If they didn’t do so because it was the moral and ethical thing to do, then they should have done so because of their own ethical obligations.

Having a mental health or substance-use disorder is alone not an ethical violation. The issue is whether having such a disorder affects client representation. ER 1.16(a)(2) requires that an affected lawyer withdraw from or decline to accept representation if “the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client.”

The ABA has issued two ethics opinions detailing the obligations of the lawyer’s colleagues:

  • ABA Op. 03-429: “If a lawyer’s mental impairment is known to partners in a law firm or a lawyer having direct supervisory authority over the impaired lawyer, steps must be taken that are designed to give reasonable assurance that such impairment will not result in breaches of the Model Rules. If the mental impairment of a lawyer has resulted in a violation of the Model Rules, an obligation may exist to report the violation to the appropriate professional authority. If the firm removes the impaired lawyer in a matter, it may have an obligation to discuss with the client the circumstances surrounding the change of responsibility. If the impaired lawyer resigns or is removed from the firm, the firm may have disclosure obligations to clients who are considering whether to continue to use the firm or shift their relationship to the departed lawyer, but [the firm] must be careful to limit any statements made to ones for which there is a factual foundation. The obligation to report a violation…by an impaired lawyer is not eliminated by departure of the impaired lawyer.”
  • ABA Op. 03-431: “A lawyer who believes that another lawyer’s known violations of disciplinary rules raise substantial questions about her fitness to practice must report those violations to the appropriate professional authority. A lawyer who believes that another lawyer’s mental condition materially impairs her ability to represent clients, and who knows that that lawyer continues to do so, must report that lawyer’s consequent violation of Rule 1.16(a)(2), which requires that she withdraw from the representation of clients.”

According to the ABA, only three jurisdictions require MCLE programming on mental health and/or substance use disorder issues: Nevada (substance abuse), North Carolina (substance abuse and debilitating mental conditions), and California (“Competence Issues,” formerly known as “Prevention, Detection and Treatment of Substance Abuse or Mental Illness”).  These states only require one hour every three years.

Arizona should become the fourth jurisdiction to require that at least one of our MCLE hours be focused on mental health and/or substance use disorder issues. And our requirement should be yearly. The Arizona Supreme Court would have to amend Rule 45 to make this happen. I think we can give up an hour on client development to focus on an epidemic affecting our profession.

Blogging Ethics, Redux

Blogging Ethics, Redux