Lawyer Well-Being

The Vermont Bar Association’s 61st Midyear Meeting is set for this Thursday and Friday. Jennifer and Laura have a fantastic program in place.  It includes seminars on:

  • ESI and admitting electronically stored info into evidence; (TECH COMPETENCE!!)
  • legal ethics;
  • free speech in the workplace;
  • DACA and other hot topics in immigration law;
  • a primer on the new tax law;
  • legal issues related to sexual harassment & the #metoo movement; and
  • issues related to post-adoption contracts (PACA).

The meeting will also include several seminars on lawyer well-being, with Friday’s plenary session scheduled as the public introduction of the Vermont Commission on Well-Being in the Legal Profession.  For more info on the VBA meeting, please click here.

Given the meeting’s focus on well-being and mindfulness, I thought I’d re-post some prior blogs on the topic.  Here’s one that originally ran on Friday, March 2, as the introduction to the 108th #fiveforfriday legal ethics quiz.

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108

Warning: today’s post isn’t as light-hearted as some of the #fiveforfriday intros.

The Substance Abuse and Mental Health Services Administration is a branch of the U.S. Department of Health & Human Services.  In 2015, SAMHSA conducted a national survey on drug use and health.  The survey found that approximately 4% of Vermonters had experienced serious thoughts of suicide over the previous year.  The Vermont results are here.

There are approximately 2,700 lawyers with active licenses in Vermont.  If lawyers suffer at the same rate as other Vermonters, 108 Vermont lawyers have had serious thoughts of suicide over the past year.

108.

Okay, I know the math might not be accurate.  However, consider the following:

In 2016, the ABA’s Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Clinic released a study on lawyers’ behavioral health.  The ABA announced the study’s results here.

Per the announcement, the study revealed “substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.”  In addition, the study “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.”

So, given that lawyers suffer at higher rates than other professionals, 4% might not be too far off.

Fact: in the past 3.5 years, 5 Vermont attorneys have committed suicide.

Fact: 2 of those 5 took their lives in 2018.

Fact: since September 2016, as many lawyers have had their licenses transferred to disability inactive status due to mental health or substance abuse issues as did in the previous 16 years.

There’s a problem.

Fortunately, the profession has started to address it.

In response to the ABA/Hazelden Study, three groups spurred creation of a National Task Force on Lawyer Well-Being.  The groups:

Last summer, the National Task Force published “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.”  The report makes a series of recommendations to the legal profession’s various stakeholders and urges state supreme courts to form committees to review the recommendations.

On January 2, 2018, the Vermont Supreme Court issued a charge & designation creating theVermont Commission on the Well-Being of the Legal Profession.  The Commission includes a representative from each of the stakeholder group mentioned in the National Task Force’s Practical Recommendation for Positive Change.   Each Commission member has formed a sub-committee to review the recommendations for that particular stakeholder group.

For example, I’m on the Commission as the representative from the “attorney regulators” stakeholder group.  My sub-committee includes one representative from each of the following: the Professional Responsibility Board, the Board of Continuing Legal Education, the Board of Bar Examiners, the Character & Fitness Committee, and the Judicial Conduct Board. I also appointed a lawyer who has long represented lawyers and judges in professional conduct investigations and prosecutions.  My sub-committee will review and report on recommendations that the Court’s various regulatory bodies ensure that lawyer health & wellness is prioritized throughout the licensing/regulatory scheme.

The Commission’s work will be the subject of the plenary session at the Vermont Bar Association’s upcoming midwinter meeting.  For more information, including how to register, please visit this site.

As I’ve blogged, the report from the National Task Force is a call to action.  In my view, we have duty to keep this issue on the front burner.

Why?

Because 108.  That number is far too high.

Other posts on this topic:

Lawyer Well-Being: A Call to Action

“The benefits of increased lawyer well-being are compelling and the costs of lawyer impairment are too great to ignore.  There has never been a better or more important time for all sectors of the profession to get serious about the substance use and mental health of ourselves and those around us.”

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I’ve blogged often on the alarming number of lawyers who struggle with substance abuse and mental health disorders.   My most recent post on the topic was one month ago today:  Lawyers Helping Lawyers: Keep it on the Front Burner.

Monday, the National Task Force On Lawyer Well-Being released its report The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.  The report puts the issue of lawyer well-being on the front burner in each of our kitchens.

And it turns up the heat.

Here’s an excerpt from the Task Force’s introductory note:

  • “To be a good lawyer, one has to be a healthy lawyer.  Sadly, our profession is falling short when it comes to well-being.  The two studies referenced above reveal that too many lawyers and law students experience chronic stress and high rates of depression and substance abuse.  These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence.”

Let me re-emphasize:  “These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence.

The note goes on:

  • “The legal profession is already struggling.  Our profession confronts a dwindling market share as the public turns to more accessible, affordable alternative legal service providers.  We are at a crossroads.  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 a courageous commitment to re-envisioning what it means to live the life of a lawyer.”

Per the report, there are 3 reasons to improve attorney well-being:

  1. Good for business
  2. Good for clients
  3. The right thing to do

#3 should sound familiar to readers of this blog.

The report is 73 pages long and makes recommendations for judges, legal employers, law schools, bar associations, professional liability carriers, and lawyers assistance programs. Most relevant to this blog, the report makes recommendations for regulators. They begin on page 25 and, per the table of contents, can be summarized as follows:

  • Take Actions to Meaningfully Communicate That Lawyer Well-Being is a Priority
    • Adopt Regulatory Objectives That Prioritize Well-Being
    • Modify the Rules of Professional Responsibility to Endorse Well-Being as Part of a Lawyer’s Basic Duty of Competence
    • Expand Continuing Education Requirements to Include Well-Being Topics
    • Require Law Schools to Create Well-Being Educations for Students as an Accreditation Requirement
  • Adjust the Admissions Process to Support Law Student Well-Being
    • Reevaluate Bar Application Inquiries About Mental Health History
    • Adopt a Rule for Conditional Admission to Practice Law
    • Publish Data Reflecting Low Rate of Denied Admissions Due to Mental Health Disorders and Substance Use
  • Adjust Lawyer Regulations to Support Well-Being
    • Implement Proactive Management-Based Programs That Include Lawyer Well-Being Components
    • Adopt a Centralized Grievance Intake System to Promptly Identify Well-Being Concerns

I will do my part to review each recommendation for regulators with the appropriate body, whether the Professional Responsiblity Board, the Board of Bar Examiners, the Character & Fitness Committee, or the Continuing Legal Eduction Board.  But, as I mentioned, the report makes recommendations for many other groups.  Nearly each and every one of us fits into it at least one of those groups.

Turn up the heat on your front burner. The time to act is now.

If you or someone you know needs help, please contact the Vermont Lawyers Assistance Program.

Wellness

 

 

 

Monday Morning Answers

Last Friday’s questions are here.  The answers follow today’s Honor Roll.

Honor Roll

  • Matt Anderson, Pratt Vreeland Kennelly Martin & White
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Michael Kiey
  • Hal Miller, First American
  • Herb Ogden
  • Ian Sullivan, Deputy State’s Attorney, Rutland County

Answers

Question 1

How many hours of pro bono publico legal services per year do Vermont lawyers have a responsibility to provide?

Per Rule 6.1, a lawyer should render at least 50 hours of pro bono publico legal servicers per year.

Question 2

Last Saturday, Attorney volunteered at a free legal clinic that was offered under the auspices of a program sponsored by a non-profit.  While there, Attorney answered questions from Tenant on issues related to Tenant’s eviction.

Attorney works at Firm.  On Monday, Attorney learned that her Law Partner represents Landlord in the eviction of Tenant.

Which is most accurate under Vermont’s rules?

  • A.   Attorney violated the rules, but Law Partner may continue to represent Landlord.
  • B.   Attorney violated the rules and Law Partner must withdraw from representing Landlord.
  • C.  Attorney did not violate the rules and Law Partner may continue to represent Landlord.  See, Rule 6.5(a).  
  • D.  Attorney did not violate the rules, but Law Partner must withdraw from representing Landlord.

The key here is that the conflicts rules are relaxed at clinics/programs sponsored under the auspices of a court or nonprofit.  Essentially, no conflict checks required.  Here, Attorney would’ve been on the hook only if she knew that Tenant was adverse to Law Partner’s client.  Finally, despite Attorney providing pro bono services to Tenant, Law Partner may continue to represent Landlord.  See, Comment 4.

Question 3

Shakedown 1979, cool kids never have the time.

Justine and Billy are in the process of divorcing.   Attorney has represented Justine since the divorce was filed 1 year ago.  Billy has represented himself.

Yesterday, Billy met with Lawyer to discuss potential representation in the divorce.  Lawyer is married to Attorney.  The two do not work in the same firm.

Which is most accurate under Vermont’s Rules of Professional Conduct?

  • A.   Lawyer may represent Billy.
  • B.   Lawyer may represent Billy if Justine agrees to Lawyer’s involvement. .
  • C.   Lawyer may not represent Billy.
  • D.   Ordinarily, to continue with their respective representations, Lawyer needs informed consent from Billy, and Attorney needs informed consent from Justine.  See, Rule 1.7, Comment [11] (“a lawyer related to another lawyer, e.g., as a parent, child, sibling, spouse or civil union partner, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each gives informed consent.”)

Question 4

Firm advertises as “the premier family law firm in the county.”  New Lawyer joins Firm. New Lawyer has limited experience in family law matters, but is assigned to handle Client’s contentious divorce.

Before New Lawyer joined Firm, Client and Firm had agreed, in writing, to a $10,000 flat fee.  Client paid the entire sum in advance and Firm deposited the funds into the Firm’s operating account.

Two months into the matter, Client learned that Firm’s managing partner plays in a weekly pick-up basketball game with Client’s Spouse.  Firm has screened Managing Partner from any involvement in Client’s matter.

If Client files a complaint against any lawyer in Firm, which issue would disciplinary counsel most likely consider to be a violation?

  • A.  The so-called “screen.”  Vermont’s rules do not allow screening and impute Managing Partner’s conflict to New Lawyer.
  • B.   The fee agreement & deposit of Client’s payment into the operating account
  • C.  Firm’s advertisement.
  • D.  New Lawyer’s inexperience.

A is incorrect. If anything, Managing Partner’s basketball game creates a personal conflict that is not imputed to other lawyers in Firm. See, Rule 1.10(a).

B is incorrect. The agreement complies with Rules1.5(f) & (g) and must not go into trust.

 D is incorrect (at least on the facts).  See Rule 1.1, Comment [2] (“a newly admitted lawyer can be as competent as a practitioner with long experience]; Rule 1.1, Comment [4] (“A lawyer may accept representation where the requisite level of competence can be achieved through reasonable preparation.”)

That leaves C.  Generally, a lawyer may not advertise in such a way as to make unsubstantiated comparisons to other lawyers.  The phrase “the premier family law firm in the county” violates Rule 7.1.  See, PRB Decision 85 (lawyer admonished for advertising as county’s “premier criminal defense firm.”)

Question 5

Sydney Carton was a brilliant lawyer who struggled with alcohol & depression.  His most famous client was Darnay.

While not explicitly clear from the historical record, I’m pretty sure that Darnay filed a disciplinary complaint against Carton.   In it, he alleged that Carton failed to provide him with competent & diligent representation in a criminal trial that resulted in a death sentence for Darnay.

The complaint became moot when Carton, who bore an uncanny resemblance to his client, switched places with Darnay just before the execution.  Carton’s final words before the guillotine fell:

  • “It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to than I have ever known.”

Name the book.

A Tale of Two Cities, by Charles Dickens.   

Bonus: name the lawyer who “mentored” Carton.  Barrister Stryver.

On a serious note, if you know a lawyer who, like Carton, is dealing with substance abuse or mental health issues, please read this.

Tale of Two Cities

Lawyers Helping Lawyers: Part 2

In March, I blogged on the issue of lawyer impairment.  The post referred to the Hazelden Study, a study that found staggering rates of “behavioral health problems among lawyers.” In particular, problems associated with alcoholism, depression, and anxiety.

My post asked that you not approach the issue from the perspective of whether another lawyer’s health problems trigger a duty to report.  Rather, I asked you to consider helping a lawyer for no other reason than to help a person who needs it.  I wrote:

  • “In my experience, lawyers are in position to recognize signs of substance abuse and mental health issues exhibited by another lawyer, whether a co-worker, colleague, or opposing counsel.  Some lawyers wonder whether there is a duty to report substance abuse and mental health issues.  Maybe.  Rule 8.3, the reporting rule, is HERE. But how about this? How about coming it at from the perspective of helping another human being instead of analyzing whether another’s struggles trigger your duty to report? If a colleague, co-worker, or opposing counsel needs help, why not help them?”

A few weeks later, Cara Cookson and Josh Simonds joined me on a panel at the VBA’s mid-winter meeting.  Among other things, we stressed (1) that referring a lawyer to help will not necessarily lead to action against the lawyer’s license; and (2) that referring a lawyer to the Vermont Lawyers’ Assistance Program satisfies any reporting duty that might exist.

Still, lawyers being lawyers, many of you want to know if & when a duty to report arises.

A few weeks ago, the ABA Journal reported that the Virginia State Bar had released a draft ethics opinion on a lawyer’s duties when another lawyer in the firm is impaired.

I’ll let you read the opinion and draw your own conclusions.  One note: the draft opinion makes reference to lawyers older than 65.  In my experience, many believe that it’s middle-aged and older lawyers who typically confront behavioral health problems.  In fact, as reported by the ABA Journal, the Hazelden Study concluded that it’s younger lawyers who are most at risk.

I thank Josh, John Weber, and all of the others who are working or have worked with VT LAP.  I think it’s time that the Judiciary and VBA figure out how to provide much more support to the program.  As a profession, we cannot help others if we, ourselves, are not healthy enough to help, or if we who are, don’t help our colleagues who are not.

Lawyers Helping Lawyers

Updated on March 3 to refer accurately to the Vermont Lawyers Assistance Program.

Last month, the American Bar Association and the Hazeldon Betty Ford Clinic released a  a study on attorney substance abuse & mental health. According to a press release issued by the ABA, the study found “substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.”

The press release is HERE.

The full study is HERE.

Here’s the opening paragraph of the study’s “discussion” section:

  • “Our research reveals a concerning amount of behavioral health problems among attorneys in the United States. Our most significant findings are the rates of hazardous, harmful, and potentially alcohol dependent drinking and high rates of depression and anxiety symptoms. We found positive AUDIT screens for 20.6% of our sample; in comparison, 11.8% of a broad, highly educated workforce screened positive on the same measure (Matano et al., 2003). Among physicians and surgeons, Oreskovich et al. (2012) found that 15% screened positive on the AUDIT-C subscale focused on the quantity and frequency of use, whereas 36.4% of our sample screened positive on the same subscale. While rates of problematic drinking in our sample are generally consistent with those reported by Benjamin et al. (1990) in their study of attorneys (18%), we found considerably higher rates of mental health distress.”

In my experience, lawyers are in position to recognize signs of substance abuse and mental health issues exhibited by another lawyer, whether a co-worker, colleague, or opposing counsel.  Some lawyers wonder whether there is a duty to report substance abuse and mental health issues.  Maybe.  Rule 8.3, the reporting rule, isHERE.

But how about this? How about coming it at from the perspective of helping another human being instead of analyzing whether another’s struggles trigger your duty to report? If a colleague, co-worker, or opposing counsel needs help, why not help them?

Yes, I get it, we are reluctant to get involved.  Some of these might sound familiar:

  • It’s not my business.
  • I don’t know for sure, could’ve been she was having a bad day.
  • It helps my client that he isn’t doing his job.
  • The firm doesn’t need the bad publicity.

Well, consider this:

Extrapolating from the ABA/Hazeldon study, approximately

  • 500 active Vermont attorneys are problem drinkers
  • 500 active Vermont attorneys exhibit signs of problem anxiety
  • 720 active Vermont attorneys struggle with some level of depression.

Here’s a real number, not an extrapolation: over the past 14 months, three Vermont attorneys took their own lives.

Help is available.

Contact the Vermont Lawyers Assistance Program. It’s confidential and the volunteers are exempt from the reporting requirement in Rule 8.3.  Josh Simonds is the Director and is an excellent resource. A referral to Josh’s program will not result in a referral to the disciplinary prosecutors.

Or, call me.  It’s confidential. I can refer an attorney to the LAP program or to one of the PRB’s assistance panels. The panels, in turn, have the authority to refer a lawyer to LAP or to any type of counseling.  I CANNOT refer the attorney to the disciplinary office.

Or, visit the website for the ABA Commission on Lawyer Assistance Programs.

Call someone. We need to help ourselves, help others, and help ourselves to help others.

Finally, please consider signing up for this seminar scheduled for March 31 at theVBA’s Mid-Year Meeting.  Josh Simonds, Cara Cookson, and I will try to provide you with tips to recognize signs that another lawyer is dealing with substance abuse or mental health problems, and we will provide guidance on how to respond.