Trial Magazine

While we strive to zealously represent our clients, many of us are buckling under the weight of a toxic professional culture. The chronic stress, depression, and addiction suffered by too many lawyers is exacerbated by the stigma that surrounds help-seeking behaviors, particularly as to mental health or addiction issues.¹ This crisis of well-being in the legal profession, along with the added stress many of us feel during the pandemic, is endangering our clients and our health. But if we recast our definitions of competence and success to include well-being, lawyers can learn to thrive and be resilient, even in uncertain times.

A Profession in Crisis

A 2016 study published by the ABA Commission on Lawyer Assistance Programs (CoLAP) and the Hazelden Betty Ford Foundation provides stark data about the existing toxicity and poor health within the profession.² This landmark study surveyed approximately 13,000 lawyers from across the country.

Among the study’s alarming findings: Between 21% and 36% of respondents qualified as problem drinkers based on the various Alcohol Use Disorders Identification Test (AUDIT) scores used³ (as compared to 12% of highly educated workers generally), and approximately 28%, 19%, and 23% were struggling with some level of depression, anxiety, and stress, respectively.⁴ The study also found that lawyers in their first 10 years of practice and those working in private firms experience the highest rates of depression and problem drinking.⁵

A contemporaneous survey on law student well-being found that 43% of law students reported binge drinking at least once in the prior two weeks and 42% endorsed feeling the need for help with mental health issues in the prior year, with only about half seeking professional counseling.⁶ These studies paint a picture of a professional culture that needs help and of widespread attorney impairment.

As a result of these alarming findings, the ABA CoLAP, in collaboration with the National Organization of Bar Counsel and the Association of Professional Responsibility Lawyers, created the National Task Force on Lawyer Well-Being. In August 2017, the task force published a report that, citing the research above, makes clear that our profession is falling short when it comes to well-being.⁷

The task force concluded that the studies’ “findings are incompatible with a sustainable legal profession and they raise troubling implications for many lawyers’ basic competence.”⁸ It further concluded that the profession is at a crossroads where we must act now to maintain public confidence in our delivery of legal services and to reduce the level of toxicity and addiction in the profession.⁹ This issue requires every lawyer’s attention.

Why Should We Care About Lawyer Well-Being?

Our duty of competence to our clients is predicated on our own well-being. And lawyer well-being is good for business: “Lawyers experiencing high well-being are also likely to produce more, remain longer, and raise the morale of others.”¹⁰ Taking affirmative steps to address our personal well-being and that of our colleagues also is the right thing to do.

The ABA’s task force defines lawyer well-being as a continuous process in which lawyers strive to thrive in each dimension of their lives—emotional, occupational, intellectual, spiritual, physical, and social.¹¹ Well-being is a broader, multidimensional concept that involves meaningful engagement and fulfillment in our lives and relationships—largely based on our underlying physical and mental health.¹²

This definition of well-being is backed by decades of psychological and social science research. While “happiness” is often equated with transient, hedonic good feelings, research has shown that people who seek a deeper sense of psychological and physical well-being through the pursuit of a meaningful life live longer and better than their counterparts.¹³

A 2015 study of practicing attorneys found that lawyers’ well-being is better predicted by psychological factors related to self, others, meaningful and engaging work, and supportive work supervision than by what may be considered the generally accepted hallmarks of well-being—high income and prestige in the profession.¹⁴ The study also revealed that a number of lifestyle choices, including regular exercise and taking time off from work, provide greater predictive power for lawyer well-being than high income, honors, or “prestige” credentials.¹⁵

In fact, lawyers’ well-being is substantially impaired by an emphasis on external factors such as income and credentials in their career choices. This finding comports with prior research, which found that the absence of well-being is a substantial risk factor for depression.¹⁶ Our intentional activities therefore provide a productive path for enhancing our well-being.

The Path Toward Positive Change

The task force recommends systemic changes within the profession focusing on five central themes:

• Identify stakeholders and the role each of us can play in reducing toxicity in the profession.
• Eliminate the stigma associated with help-seeking behaviors.
• Emphasize that well-being is an indispensable part of a lawyer’s duty of competence.
• Educate lawyers, judges, and law students on well-being issues.
• Take small, incremental steps to change how law is practiced and how lawyers are regulated to instill greater well-being in the profession.¹⁷

States should implement a commission on well-being to study these issues and execute action plans, according to the task force. To date, a majority of states have taken action toward this goal.¹⁸

The task force also recommends that state regulators revise ABA Model Rule of Professional Conduct 1.1 or its comments to more clearly include lawyer well-being in the definition of “competence.”¹⁹ This suggestion is consistent with a growing recognition, nationally, that attorney well-being is an important predicate for competence.

California recently amended its Rule 1.1 to include that “‘competence’ in any legal service shall mean to apply the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably . . . necessary for the performance of such service.”²⁰

Virginia has added a comment to its Rule 1.1 specifying that “[a] lawyer’s mental, emotional, and physical well-being impacts the lawyer’s ability to represent clients and to make responsible choices in the practice of law. Maintaining the mental, emotional, and physical ability necessary for the representation of a client is an important aspect of maintaining competence to practice law.”²¹

Problems in these areas may reasonably be expected to affect professional functioning. It therefore becomes a lawyer’s responsibility to seek appropriate assistance and treatment. Troubled lawyers are potentially impaired lawyers. Well-being is not a luxury we can ill-afford but rather a critical part of our ethical duty of competence.

Recommendations for Lawyers and Employers

The well-being crisis in the profession must be solved within and by the profession itself, with each lawyer taking steps individually and organizationally to initiate discussion and action that places well-being at the forefront.²²

A top-down approach is essential to changing the toxicity within the profession, but this requires buy-in and role modeling from leaders.²³ All stakeholders, including the courts, private firms, public employers, and law schools, must take a leadership role. Legal employers should invest in lawyer well-being by first assessing existing office culture and policies, and then identifying priorities and implementing initiatives to promote well-being.

The ABA’s “Well-Being Toolkit for Lawyers and Legal Employers” provides extensive resources, including best practice guidelines and action plans for employers, recommendations for education and development to include in action plans, and online resources on well-being initiative development.²⁴ Social science data confirms that supervising attorneys in a way that promotes their autonomy, with a focus on intrinsic values such as competence and authenticity, is a key driver for enhancing lawyers’ well-being and satisfaction in the practice.²⁵

Employers also should train human resource employees and educate their attorneys on the wide availability of Lawyer Assistance Programs.²⁶ Employers should encourage employees to take vacations and develop healthy habits—the paradigm of 24/7 availability and being “married to the practice” is not healthy or sustainable. Firms should examine their annual billable hour requirements in this context and monitor their employees for signs of work addiction and burnout. The ABA well-being toolkit provides assessments for lawyers as to burnout and work engagement, as well as additional assessments focused on substance use and mental health.²⁷

On an individual level, lawyers should commit to examining and prioritizing their personal well-being. Physical wellness is a foundational pillar of overall well-being, premised on regular exercise, sleep, nutrition, and recovery from the stress of the daily practice of law. Without it, we cannot be as productive and fulfilled as we want to be. While many of us know this to be true, far fewer prioritize these fundamentals of good health. Taking the position that we don’t have time to work out, eat, or sleep is simply a statement that our well-being is not a priority. Nurturing our physical health, our relationships, and our outside interests enriches our lives and makes us better lawyers. We can, and should, rewire our mindset so that we can thrive and reach our full potential.

Lawyers who are impaired need assistance, and lawyers who are not impaired still may not be thriving. We must recognize when we need help and seek it out (and encourage others to do so as well). When stress overwhelms our usual ways of coping or is getting in the way of how we live, mental health professionals strongly recommend seeking help before a crisis occurs. Lawyer Assistance Programs, which exist in every state, are uniquely tailored to meet the needs of lawyers who are struggling; their services are uniformly confidential and often free of charge.²⁸ The ABA’s toolkit also provides a number of online mental health resources for lawyers.²⁹

Our resiliency has never been more important than it is today. While the current crisis in lawyer well-being endangers the profession and the delivery of legal services, we can equip ourselves with the resources and tools necessary to reclaim our well-being, with the understanding that our legal competency depends on it.

Marianne C. LeBlanc is a partner at Sugarman and Sugarman in Boston and can be reached at mleblanc@sugarman.com.

Notes

1. Nat’l Task Force on Lawyer Well-Being, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, Aug. 14, 2017, at 13, https://tinyurl.com/yadw7hze (citing Thomas W. Britt et al., Perceived Stigma and Barriers to Care for Psychological Treatment: Implications for Reactions to Stressors in Different Contexts, 27 J. Soc. & Clinical Psychol. 317 (2008); Sydney Ey et al., Attitudes and Factors Related to Seeking Mental Health Treatment Among Medical and Dental Students, 14 J. C. Student Psychotherapy 23 (2000); Sabine E. Hanisch et al., The Effectiveness of Interventions Targeting the Stigma of Mental Illness at the Workplace: A Systematic Review, 16 BMC Psychiatry 1 (2016); Kristen S. Jennings et al., How Are Perceived Stigma, Self-Stigma, and Self-Reliance Related to Treatment-Seeking? A Three-Path Model, 38 Psychiatric Rehabilitation J. 109 (2015); Nathaniel G. Wade et al., Modeling Stigma, Help-Seeking Attitudes, and Intentions to Seek Behavioral Healthcare in a Clinical Military Sample, 38 Psychiatric Rehabilitation J. 135 (2015)).
2. Patrick R. Krill et al., The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 J. Addict. Med. 46 (2016). 
3. AUDIT is a 10-item self-report instrument developed by the World Health Organization (WHO) to screen for hazardous use, harmful use, and the potential for alcohol dependence. The AUDIT is a widely used instrument, with well-established validity and reliability across a multitude of populations. See id. at 48 (citing Carolina de Meneses-Gaya et al., Alcohol Use Disorders Identification Test (AUDIT): An Updated Systematic Review of Psychometric Properties, 2 Psychol. Neurosci. 83–97 (2009).
4. Id. at 46, 48–50.
5. Id. at 51.
6. Jerome Organ, David Jaffe & Katherine 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, 128 (2016).
7. The Path to Lawyer Well-Being, supra note 1. 
8. Id. at 1–2. 
9. Id. 
10. Lawrence Krieger & Kennon Sheldon, Ph.D., What Makes Lawyers Happy? A Data-Driven Prescription to Redefine Professional Success, 83 Geo. Wash. L. Rev. 554, 585 (2015).
11. The Path to Lawyer Well-Being, supra note 1, at 9.
12. See WHO, Constitution, http://www.who.int/about/mission/en. (“Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”). See also Krieger & Sheldon, supra note 10, at 617–20. 
13. Louis Tay & Lauren Kuykendall, Promoting Happiness: The Malleability of Individuals and Societal Subjective Wellbeing, 48 Int’l J. Psychol. 159 (2013); Andrew Steptoe et al., Subjective Wellbeing, Health, and Ageing, 385 Lancet 640 (2015).
14. Krieger & Sheldon, supra note 10, at 621.
15. Id. at 608–09.
16. Alex Wood & Stephen Joseph, The Absence of Positive Psychological (Eudemonic) Well-Being as a Risk Factor for Depression: A Ten Year Cohort Study, 122 J. of Affective Disorders 213 (2010).
17. The Path to Lawyer Well-Being, supra note 1, at 10–11.
18. See Nat’l Task Force on Lawyer Well-Being, The Lawyer Well-Being Movement Is Sweeping The Nation (interactive map), www.lawyerwellbeing.net. 
19. The Path to Lawyer Well-Being, supra note 1, at 26.
20. Cal. R. of Prof’l Conduct 1.1(b).
21. Va. R. of Prof’l Conduct 1.1 cmt. 7.
22. The Path to Lawyer Well-Being, supra note 1, at 8.
23. Id. at 12–13.
24. Anne Brafford, Well-Being Toolkit for Lawyers and Legal Employers, ABA, Aug. 2018, https://tinyurl.com/y7apla37.
25. Krieger & Sheldon, supra note 10, at 625.
26. ABA, Commission on Lawyer Assistance Programs, https://www.americanbar.org/groups/lawyer_assistance/.
27. Brafford, supra note 24, at 25–27.
28. ABA, Directory of Lawyer Assistance Programs, https://tinyurl.com/yxseomur.
29. Brafford, supra note 24, at 29. For additional resources for lawyers in crisis, see Psychology Today’s therapist finder at https://www.psychologytoday.com or contact the Crisis Text Line by texting HOME to 741741 to connect to a crisis counselor. For more on mindfulness, see Brenda Fingold, Navigating the ‘Full Catastrophe’ With Mindfulness, Trial, July 2020, at 20.