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Regulation, Risk & Resilience: The Nexus between Professional Liability, Duty of Competence and Attorney Well-Being

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Regulation, Risk & Resilience: The Nexus between Professional Liability, Duty of Competence and Attorney Well-Being

Mental health issues and substance use disorders can affect any attorney, in any setting, and at any time. Left untreated, they can destroy careers and lives. This program will discuss where the legal profession currently stands in relation to the substantial challenges presented by untreated mental health issues and substance use disorders and examine the nexus between ethical competence, under the Model Rules of Professional Conduct, and attorney well-being. This program will educate attendees on how to recognize the signs of an impaired attorney, how to approach the colleague and begin a conversation, and discuss the possible disciplinary and professional liability implications of an impaired attorney’s conduct. In addition, the speaker will present best practices/effective risk management strategies, preventative measures, and proposed policy and well-being initiatives, that attorneys in any practice setting may implement to protect clients, themselves and other firm members as well as save careers.

Presenters

Tracy Kepler
Risk Control Consulting Director, Lawyers’ Professional Liability Program
CNA

Transcript

Tracy Kepler: Welcome to the program, Regulation, Risk and Resilience, the nexus between professional liability, duty of competence and attorney wellbeing. My name is Tracy Kepler, and I will be with you for the next hour, speaking to this topic.

   Mental health issues and substance use disorders, can affect any attorney in any setting and at any time. Left untreated, they can destroy careers and lives. For the next hour, we will discuss where the legal profession currently stands in relation to the substantial challenges, presented by the untreated mental health issue and substance use disorders. Examine the nexus between ethical competence under the model rules of professional conduct and attorney wellbeing. We will cover how to recognize the signs of an impaired attorney and how to approach the colleague and begin a conversation. We will also consider the possible disciplinary and professional liability implications of an impaired attorney's conduct.

   Lastly, we will talk about best practices and effective risk management strategies, preventative measures, and proposed policy and wellbeing initiatives, that attorneys in any practice setting may implement to protect clients, themselves and other firm members, as well as safe careers.

   The best way to start this discussion is to set the stage with some recent data on the health and wellbeing of the legal profession. Get a feel for where the legal profession currently stand in relation to the historically substantial challenges presented by mental health and substance use disorders.

   In 2016, the ABA commission on Lawyer Assistance Programs and Hazelden Betty Ford, published their study of nearly 13,000 currently practicing attorneys. The study looked at both substance use and mental health issues, and covered all age groups, diversity and geographic and practice settings. The research was published in an article entitled, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, and was published in the Journal of Addiction Medicine. That same year, another law student survey entitled, Suffering in Silence:The Survey of Law Student Wellbeing and the Reluctance of Law Students to Seek Help, was published in the Journal of Legal Education.

   The data for the law student study came from 15 law schools and roughly 3,400 law student respondents. It covered a diverse student body. One third of the respondents were from each year of law school. There were some pretty startling data points. When looking at alcohol use, 90% of the respondents had had a drink of alcohol in the prior 30 days. But then you see 53% got drunk in that same period, 43% binge drank at least one time in the prior two weeks. Other questions were asked about the use of marijuana and cocaine, reflecting increases in usage as well. Data also showed that 13% of respondents with a prescription, have given away their prescription drugs in the last 12 months. With stimulants being the most frequent, followed by sedatives and pain medication. 14% of respondents used prescription drugs without a prescription in the last 12 months.

   The study asked law school students about their mental health. The data reflected that students were reporting symptoms of depression at 17%, severe anxiety at 14%, mild to moderate anxiety at 23% and 6% had suicidal thoughts within the past year. When analyzing the data, the researchers found some comorbidity in that respondents with frequent binge drinking, also showed frequent use of street drugs and misuse of prescription drugs. Respondents screening positive for depression were much more likely to screen positive for anxiety. Respondent screening positive for anxiety were much more likely to screen positive for depression.

   The study also asked questions about certain factors that discouraged help seeking by law students. Many said that they did not seek assistance because they perceived a threat to their job or academic status. They believed it might hinder their ability to apply or be a potential threat to bar admission, social stigma, and not wanting anyone else to know. They believed that they could handle it themselves.

   Further, roughly half of respondents reported that they had a better chance of getting admitted to the bar if a mental health or substance use problem was hidden. With regard to the lawyer study, as I mentioned earlier, over 13,000 respondents participated. They had to be a and actively practicing an attorney. The data was taken from all across the country, urban, rural, diversity, different practice areas, years in practice and work environments. The number of participants, the percentage of participants with years in the field, they also looked at different firm positions, hours worked and hours of litigation. One interesting side note from the data, was that the researchers believed they would see a higher percentage of distress symptoms with litigators, but that proved not to be true.

   With regard to alcohol use, they used a questionnaire called the audit 10, which has been found to provide an accurate measure of risk across gender, age and cultures. It measures problematic drinking, including hazardous and possibly alcohol dependence. The results really turned preconceived notions on their ear. Rather than being more seasoned professionals with higher rates of problematic alcohol use, it was the younger attorneys, or attorneys younger than 30 that had a greater issue. 32% to the 20 for all attorneys and 6.4% for the general population.

   In this side, you can see the breakdown by age group. We see the reverse relationship to ages, years in the field and positions. Younger, less experienced attorneys working in lower or junior positions, had the highest audit scores. Private firm or bar association, and junior associates had the highest levels of problematic alcohol use. The survey also asked the question, whether you ever thought your use of alcohol or other substances was a problem. If yes, then before, during law school, within 15 years after law school, or more than 15 years out. 22.6% felt their use of alcohol or substances was a problem sometime during their lives. 27.6% reported problematic use prior to law school, 14.2% reported problematic use, actually started during law school. But of the most concern 47.7, nearly 50% reported problematic use started within the first 15 years following law school. Only 14.5% reported problematic use started more than 15 years after law school.

   The survey also posed questions about drug use. They used the drug abuse screening test or DAST, which has been found to be a sensitive screening instrument for the abuse of drugs other than alcohol. There was a much smaller sample who completed these questions. This may be the result of concerns about revealing the use of illegal substances or abuse of prescription medications, lowering the willingness of people to participate. Or it could be markedly fewer lawyers engage in this behavior. The data reflected that 24% were in the intermediate to severe range of drug abuse.

   In response to the question, what substances have you used within the past 12 months? You can see the responses on the screen before you, with alcohol being the highest by far. Another interesting data point for drug usage, was whether or not the respondent had used the prescription drug without a prescription. 15.5% of that group had, or was using it without a prescription. The good news is that the vast majority of attorneys that used these substances, are actually using them legally with the prescription. However, think about the risk behavior for those licensed attorneys, working in the field, engaging and using medication without a prescription. Which means getting it, and then also using it illegally.

   The survey also looked at the mental health of attorneys. They used the DAS, which is a 21 item questionnaire, including three self-report scales, designed to measure the negative emotional states of depression, anxiety, and stress. The percentages are on the screen before you. With depression, men had higher levels of depression than females. And interestingly, we see the same inverse relationship to the alcohol study. Where rates decrease as age increases and junior positions have higher rates. Females have higher levels of anxiety than men.

   The self-report question asked, relates to the mental health concerns over the course of a legal career. It was interesting that most reported anxiety, even though the instruments picked up depression at a higher percentage. It may be possible that some people interpret their symptoms of depression as anxiety versus depression, with ruminating thoughts, sleep problems, or general unrest.

   Suicide, the study demonstrated that 11.5% have had of suicide, which is a lot of lawyers. This goes hand in hand with the high rates of depression with the legal profession. 2.9% reported, self injurious behaviors and 0.7% reported at least one suicide attempt.

   Questions were also asked about why an attorney had not sought treatment or assistance for any issue. And two primary areas of concern were shown. First, not wanting anyone else to know or find out the stigma. Concerns regarding privacy or confidentiality, that it might get out. Other reasons for not seeking assistance, were concerns about a negative impact on their law license or ability to practice. They did not have insurance or the financial wherewithal to cover the cost, or they just didn't know where to turn or who to ask.

   Concerns were not drastically different for the different areas. Significantly more people with alcohol and substance use problems, 67% didn't want others to find out versus 55% with mental health problems feeling that way. Privacy and confidentiality also had a higher percentage when concerned with alcohol and substance use problems versus mental health. This may reflect that for lawyers, it is possibly more acceptable to get help for mental health issues or to have a mental health concern than it is an alcohol or substance use problem. The survey also wanted to know if there was much, if any, exposure to alcohol and substance use or mental health topic in law school. About 70% said no. 12 to 15% said yes, and the rest just couldn't recall.

   Another more recent study was completed by ALM Intelligence and Law.com in 2019. It had 3,800 participating attorneys and more than 50% were at law firms of 500 lawyers or more. An overwhelming majority of legal professionals or 74%, believed that their mental wellbeing was worse off as a result of their chosen career. 33% responded that they had a heightened use of alcohol or drugs as a result of their work or work environment. 44% admitted to dealing with their stress with alcohol and 4% with drugs and 17.9% in this study, admitted to contemplating suicide during their career. Which is actually two times higher than the general population.

   Questions were asked of the participants, what about their job negatively impacted upon their mental wellbeing? Answers ranged from a feeling of always having to be on 24/7, 365, not being able to disconnect from work, billable hour pressures, lack of sleep and client demands. Only 36% said that they use all of their vacation time. Even when they do take vacation, they cannot disconnect or they feel that there is an expectation that they must respond to emails, calls, or face negative repercussions.

   Lastly, legal professionals said that since the window to disconnect is so small, the easiest and fastest way to relax or to get from 60 to zero, was through the use of drugs and alcohol. Interestingly, this study was just recently completed again in 2021 and showed worsening mental health struggles in the profession.

   In 2021, the World Health Organization published a study on working hours. The results and implications on the legal profession and the kinds of hours they work were startling. The study concluded that working 55 or more hours per week is associated with approximately 35% higher risk of stroke and a 17% higher risk of dying from ischemic heart disease, compared to working 35 to 40 hours a week. Long working hours led to 745,000 deaths from stroke and heart disease in 2016, which was a 29% increase since 2000. Working long hours is responsible for about one third of the total estimated work related burden of disease. It is the risk factor with the largest occupational disease burden, and it's not getting any better.

   The number of people working long hours is increasingly, and it currently stands at 9% generally. I would love to know that exact percentage for the legal profession, and this trend puts even more people at risk of work related disability and early death.

   Another legal study that was just published in May of 2021, is called Stress, Drink, Leave:An Examination of Gender Specific Risks Factors for Mental Health Problems and Attrition Among Licensed Attorneys. That study consisted of 3,300 attorneys in the district of Columbia and California. Roughly half of lawyers are experiencing symptoms of depression and anxiety, with approximately 30% falling in the mild range and just under 20% following in the moderate to severe range. Over half of the lawyers screened positive for risky drinking and 30% screened for high risk hazardous drinking, which is interpreted as alcohol abuse or possible dependence.

   Women are experiencing meaningfully worse mental health concerns than men and are drinking more hazardously. Further, the survey revealed that one in four women is contemplating leaving the legal profession due to specifically to mental health problems, burnout or stress. Despite 30% of attorneys screening positive for disordered drinking, only 2% reported ever having received an alcohol use disorder diagnosis. This disparity clearly suggests an extreme level of under diagnosis and treatment for a widespread problem. Possibly owing to pervasive denial, to the stigma and to a professional culture that normalizes heavy drinking.

   So in addition to the study data, who are we and what do we face? And more importantly, how does that impact upon our mental health and propensity for substance use. While true that the studies reflect that the major of lawyers and law students do not have a mental health issue or substance use disorders, that doesn't mean that they're thriving. Many lawyers experience a profound ambivalence about their work and the course that we are on is unsustainable. Looking at the structure and the legal profession that perpetuates unhealthy behaviors in the workplace, devices.

   Technology is fabulous and the ability to work anytime outside of the traditional nine to five and connect at any time and at any place, at the touch of a button is freeing. But the flip side is that the expectations that come with that freedom, you have to be there to answer that call, respond to that email, file that brief.

   The billing structure, billable hours and revenue generation are the two key metrics in how law firms compensate attorneys. Partners, including the most senior have billable hour targets and their compensation may rise or fall with the achievement or missing of those targets. The pressure then to work seven days a week, to miss family events, to forego vacations, to miss needed doctor's appointments, cannot be overstated. Junior associates have all that pressure and the desire to make partner on top.

   Client expectations. They're unrealistic. They want it now. They experience us with a range of emotions, happy, sad, mad, frustrated, and they vent it all on us. Over time like other professions, we develop compassion fatigue as a result of managing all those emotions and solving all the problems.

   There also is a certain emotional dissonance. We encounter stress from the workload, yet we are expected to appear and be completely unaffected by it. Often time we have a lack of support, lack of autonomy, lack of meaningful work or professional growth. We face the stigma and no one can know. And the pressure to consume alcohol at work functions can't be overstated.

   Within ourselves, we oftentimes have a skewed definition of success, or on the hamster wheel chasing something that may not be in our best interest. We are the problem solvers. People come to us to solve their problems. So we should be able to handle any issue without any assistance. Perfectionism always enters our world, where perfect is the enemy of good. We're not sleeping. We wake up tired. We're struggling to get to work. We often feel like we are working harder and accomplishing less. We have ruminating thoughts. We procrastinate. We have strange aches and pains, and we lose the separation between personal and professional life.

   Another way you can look at these issues and the way in which they are hurting the legal profession, is at the bottom line. In the pocketbook, you can see some of the statistics from the cost of absenteeism, presenteeism, lost productivity, turnover rates, all as a result of various substance use and mental health issues. It is evident that lawyer wellbeing can and does contribute to organizational success. For law firms and corporations, lawyer health and wellbeing is an important form of human capital that can provide a competitive advantage.

   Absenteeism on average was associated with 2.2 days of absence from work, and 7.5 days of presenteeism. Which is being at work, but not being productive per employee. 9.1 billion is roughly how much law firms in the US lose annually due to turnover. $400,000 is the estimated turnover cost per associate who leaves.

   Looking at the bottom line from another angle, lawyer malpractice claims. This data is taken from the ABA standing committee on lawyers' professional liability, 2020 profile of legal malpractice claims. It reflects the general type of error, whether it be administrative, substantive, client relations, or intentional wrongs. Broken down even further, you can see the errors in the administrative category from failure to calendar, clerical error, procrastination, failure to document or lost file. The largest area or 51.93% comes in substantive areas, errors. Failing to know the law, inadequate discovery, planning and drafting errors, conflicts of interests and on and on. Other areas are failure to follow client instructions, failure to obtain client consent, not withdrawing properly, and the intentional wrongs. Things such as malicious prosecution and fraud.

   We can also see the connection between attorney conduct under the model rules of professional conduct, attorney impairment and disciplinary sanctions. This chart taken from the Illinois attorney registration and disciplinary commissions, 2020 annual report, reflects the impairments identified for lawyers disciplined. You can see the substances as well as the mental health concerns. It is frequently seen in discipline cases that an attorney respondent is impaired by addiction to alcohol or another substance, or suffers some mental illness or disorder. These statistics reflect only those cases in which one or more impairments were either raised by the lawyer, or otherwise known by staff counsel. It is likely that many cases involving impaired lawyers are never so identified.

   We also know that the most common disciplinary violations stem from poor attorney client relations, failure to communicate, neglecting a case, fee disputes, which often lead to a legal malpractice claim. We know that lawyer wellbeing influences ethics, malpractice, and professionalism. Many of the rules of professional conduct require competence, diligence and communication and these aspects are critical to protecting clients.

   In fact, as suggested by DB Marlowe and his paper, Alcoholism Symptoms, Causes and Treatments, published in Stress Management for Lawyers. Data shows that 40 to 70% of all disciplinary proceedings and malpractice claims against lawyers, involve substance use or depression, or often both.

   So what have we learned from all the data studies and statistics? We know about higher usage rates, higher incidences of anxiety, stress, burnout. We know that younger lawyers suffer at greater rates and we know about stigma. That lawyers don't seek kelp. That they are afraid someone will find out. They are the problem solvers. They can help themselves. They don't want to appear weak, and they certainly don't want their insurance carrier or the regulatory authorities to find out.

   We have seen from various law school studies, that we don't have time to consider today, that law students are suffering in silence and have similar levels of distress. We know there's a relationship between substance use and mental issues and malpractice disciplinary claims. We also know that unhealthy lawyers hurt the bottom line, and that there is a business case to be made for promoting health and wellbeing in law firms and corporations.

   We also know that from a humanitarian perspective, promoting wellbeing is the right thing to do. Untreated mental health and substance use disorder, ruin lives and careers. They affect too many of our colleagues. Though our profession, prioritizes individualism and self sufficiency, we all contribute to, are affected by the collective legal culture. Whether the culture is toxic or sustaining, is up to us. Our interdependence creates joint responsibility for solutions.

   By looking at a hypothetical scenario, we're going to flash out what steps we can take and some best practices at the individual level, firm level and lawyers profess liability and regulatory levels. As well as discuss initiatives that have already been put into place, and that are on the horizon for improving the health and wellbeing of the profession. Also proactively working to reduce insurance claims and disciplinary actions.

   So let's take a look at our hyperthetical. Lisa is the managing partner in a mid-size law firm in any town, USA. A junior associate informs Lisa that he believes Tom, a senior associate has a serious alcohol problem. The junior associate has seen Tom slurring his speech when speaking to his administrative assistant, smelling like alcohol after taking a two hour lunch. Behaving inappropriately with some of the support staff, when discussing the status of cases. The information the junior associate provides is credible, detailed and alarming. It also points to the potential for neglect of many of Tom's cases. When Lisa confronts Tom about these issues, Tom denies having any substance abuse problems, and he attributes his work performance to stress caused by marital discord and promises to improve.

   For the remaining part of the program, we will cover the following questions. What steps should the firm take to help Tom deal with his problems? What are the next steps that Lisa should take with respect to dealing with clients, the court and other members of the firm? Would the answer be different if the clients also complained about Tom's representation? Can you even tell the client? Does Lisa have a duty to report Tom to the regulatory authorities? What confidentiality issues arise? And does the firm have a duty to investigate potential malpractice with regard to Tom's matters?

   So what to do about the situation? Let's talk about identifying signs in others and ourselves and best practices for starting a conversation with a colleague who may be impaired. So what to do. I think that a friend, associates, supervisor, employer, spouse has a problem and is not dealing with it in the best way.

   First. I think we all have to remember that JD does not mean MD. We are not providing a diagnosis. We just need to recognize the signs and changes from baseline behavior. Well, how do I know and what am I noticing? To borrow a phrase for my colleagues at the Illinois Lawyers Assistance Program. What you should do is read the map. M, standing for mood or attitudinal disturbances, a bright, engaging, and energetic coworker becoming withdrawn, less cooperative, blaming others, and a general, I couldn't care, less attitude. A is for appearance or physical changes, a fastidious person becoming unkempt, glazed over, bloodshot eyes, unsteady gaits, flight of ideas or tangential speech. P is for productivity and quality of word deterioration, not just doing the work, but in consistency, tardiness, diligence.

   Certainly this is not an exhaustive list, but it's a start. Also, everyone can have a bad or off day. The difference here is to notice changes from the baseline or from the normal. On the slide in front of you are things to look for. The signs, symptoms, and behavior in others that you should pay attention to. Things like irritability, short temper, withdrawing, isolated, confusion, or difficulty focusing. Disregard for the wellbeing of others, poor motor coordination.

   On the next slide or on this slide, I should say. We've been talking about recognizing the signs in others. But what about some self-awareness or recognizing signs in ourselves when there might be a problem. Certain signs, symptoms, and behaviors in yourself are on the slide. Things like feeling tired or having little energy, feeling bad about yourself, trouble concentrating or relaxing, feeling dread, hopelessness, or depressed. Isolating, and avoiding people.

   So the next question then is, how do I overcome the barriers and approach the attorney about the issue? I think the first thing is to remember that it's usually a process. It's not going to be a, "I think you have a problem and you need to get help." And then ta-da, the attorney agrees. At that moment leaves his, her or their office to go to a LAP or a treatment professional. It is really slow and steady wins the race. Impaired attorneys initially resist attempts to discuss concerns. Remember, attorneys are masters of not answering the questions asked. They are amazing at the art of spin and the masters of redirection or misdirection.

   Following the first conversation, the impaired attorney may have you believing that you are the one who's impaired. Do your homework. Don't go into the situation or conversation unprepared, gather information, consult resources, contact a local lap, and then take action. It may sound silly, but make sure that you are in the mood. Feeling calm, confident, and not too emotional. And then when you are ready, approach the lawyer. A legal assistance program can help you with some tools.

   It's often about waiting for that critical moment. When something comes along that makes your friend or colleague want to thinking that they may need help. This critical moment may catch you off guard. It may well have been prompted by a well-time, open ended question you asked, such as, what would you like most to achieve in the next two months? Or you don't seem to have been yourself recently, is something wrong?

   The other thing to remember is, you want to arrange to talk in a quiet private environment when they are sober. If you feel more comfortable, partner with the people the lawyer trusts and who have witnessed the behavior of concern. Approach the lawyer as a respectful concerned colleague, think about how you would feel. Not judgemental, but with empathy and coming from a place of, I care. Avoid criticisms and labels. These are some things that are likely to do harm rather than help. Most of these involve being judgemental or accusatory in some way and then basically telling them that you're judging them. Things like, "You've got an alcohol problem." Or, "I think your drinking's out of control." Are examples of an approach that is highly unlikely to succeed. The response is predictable, "No I haven't." Or, "No, my drinking's not out of control." And it may be followed up with, "I can stop anytime I want to."

   Aim to get the lawyer to talk. You want to hear what they have to say. Review strengths and accomplishments. We don't want this to be a "you're a failure" type discussion. Provide kindness, dignity, and privacy. Offer to stay involved, suggest an assessment with a professional and have a name ready. There's nothing worse than saying, "I think you should meet with someone." Not have someone identified and ready to go to take that next step. Remember, this is a process.

   Some good dos and don'ts for these conversations. Avoid circular conversations and use open-ended questions, simple, specific, and concrete. Statements that cannot be disputed. Lawyers like to argue, remarks like everyone is disgusted with you, or Linda thinks you have a real problem. Lead to arguments about Linda's problems and who everyone is. Identify two or three instances, specific in is that clearly demonstrate the problems that you have concerned. Talk about what you have observed. I see and I feel. Restrict your comments to what you see and feel and have experienced.

   So for example, the other day, when you appeared before judge, so and so, I heard you slur your words, and I saw you swing and almost fall over at the council table. What you saw, what was said, what was done, where it occurred, when, who else was there. Make clear how in your mind the alcohol or substance played a role in the events. Don't be afraid to say how it made you feel. Also don't try to diagnose.

   If the person denies that they're drinking or the substance use is causing them any problems, cite the things when you drink, or when you use. For the purposes of peer intervention, a successful conversation is one that happens, do something. Don't ignore it and hope that it will go away. Also remember it's possible and even probable that the person you're talking to is going to become angry. Expect it, accept it and you will not be harmed. Respect the anger and to the best of your ability, try not to personalize it and don't give up.

   Here are some bad starters. You're a drunk. You don't know how stupid you acted and sounded last night. If you'd love me, you'd stop. Some good starters. I care about you. I want to talk to you because I'm worried about you. Our relationship means a lot to me. I don't like to see what's been happening. Be sure to distinguish between the person and the behavior. I think you're a great person, but the more you drink or the more you lose, the less you seem to care about anything. Lastly, present options. Don't just leave them hanging. I would be happy to go with you to a counselor. We could even call together now to make the appointments. Here's the name of a treatment provider.

   Question two. What are the next steps that Lisa, should take with respect to dealing with the clients, the court and other members of the firm. We have to consider that Lisa needs to follow the rules of professional conduct with regard to supervisors or partner. In that respect, Lisa, shall make reasonable efforts to ensure that the firm has in effect measures, giving reasonable assurances, that all lawyers in the firm can form to the rules of professional conduct. The same goes for lawyers who have direct supervisory authority over another lawyer. They also shall make reasonable efforts to ensure that the other lawyer conforms to the rules of professional conduct.

   On the slide before you, I have included new Mexico's version of rule 5.1, as an example of a state who has written into the rule specific instructions with regard to what a supervisor or partner needs to do under the rules. Partners have a duty to take prompt action to address any concern that a lawyer in the firm is exhibiting signs of a severe impairment, or of the lawyer's cognitive function. The rule goes on to describe the action to take, as making a confidential report or seeking assistance from the lawyer's assistance program. You can also report the matter to the office of disciplinary counsel to consider disability and active status or an inventory attorney appointments. Or just speaking with the lawyer and encouraging the lawyer to seek appropriate medical care and or testing. As you can see, confidentiality is key.

   Lisa May also have a duty under the model rule of professional conduct, 8.3(a), to inform the regulatory authority of the matter when an attorney's conduct raises a substantial question as to that lawyer's honesty, trustworthiness. Or important for our discussion today, fitness as a lawyer in other respects.

   Rule 8.3(a), provides the why. It could be an apparently isolated violation that may indicate a pattern of misconduct, that only a disciplinary investigation can uncover. Mostly because the victim or oftentimes the client is unlikely to discover the offense. A reporting is not required if it violates the duty of confidentiality, but a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interest. The appropriate professional authority is the highest court in the jurisdiction or the attorney regulatory authority.

   The duties of a partner or a supervisory lawyer, are further spelled out in the American Bar Association's formal ethics opinion, 03-429 from 2003. The opinion talks about the firm's paramount obligation being to steps to protect the interests of its clients. There are two other relevant legal opinions from Virginia and also from DC, which talks about a proactive approach to intervention and taking precautionary measures before any misconduct or client harm occurs.

   So what are Lisa's obligation to the firm clients, the courts, and other members of the firm. Based on the scenario presented, we can't really tell if Tom has neglected any matter, and if any error notification needs to be made. Certainly at this point, Lisa is in an investigatory stage. But she also needs to determine whether Tom can continue in the practice, needs to seek treatment or take a leave of absence. HIPAA concerns and confidentiality issues are triggered as well as to what can be said and care needs to be taken when discussing the issue with courts, clients, and other members of the firm.

   Some other questions consider in this scenario are, would the answer be different if the clients also complained about Tom's representation? And can you even tell the client? The first step here would be to determine any harm to the legal rights of the clients. Again, confidentiality is key. Does the firm have a duty to investigate potential malpractice with respect to Tom's matters? Due diligence starts now. Looking at case files, examining calendars and dates to ensure compliance and filing a notice of potential claim with the carrier, if warranted.

   So let's look at Tom's responsibilities. What are the impaired lawyers responsibilities? Certainly compliance with rule 1.1 competence. Compliance with withdrawal. 1.16(a)(2), self-reporting any violations and to obtain treatments or take other steps appropriate under the circumstances.

   Let's start with a lawyer's duty of competence rule. 1.1 says, "A lawyer shall provide competent representation to clients. Competent representation requires the legal knowledge, skill, thoroughness, and preparation, reasonably necessary for the representation." No mention of wellbeing there. None in the comments to the rule, either. Lawyers who are impaired due to substance use or other mental health disorders, create an extraordinary risk of harm to their clients and the public, adversely affecting not only their own wellbeing, but also their ability to serve clients capably, competently, and responsibly. By encouraging the legal community to prioritize lawyer wellbeing and promote the importance of lawyer self care, our profession can bark on the process of reinforcing the public's confidence in its members and repairing the damage many lawyers endure because of stigma, fear of retribution and other professional barriers.

   Recognizing the importance of lawyer wellbeing, states such as Vermont and Virginia have added comments to rule 1.1, reflecting the importance of a lawyer's mental, emotional, and physical wellbeing. Having these types of comments to the rule is critically important to informing lawyers of the nexus between maintaining their wellbeing and their duty of competence.

   California has actually added the wellbeing language to the black letter rule of 1.1(b) and the ABA Center for Professional Responsibility, is currently looking at revisions to the comment section of the ABA model rule 1.1 in this respect.

   Tom may need to consider withdrawing from the representation. And you can see the model rule of professional conduct rule 1.16, declining or terminating representation, on the screen in front of you.Of importance for our perspective today, is subsection two. The lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client. In that case, the lawyer shall withdraw. Another step Tom needs to take is to seek help.

   The mission of Lawyer Assistance Programs across the country, take a broad brush approach. They assist attorneys, judges, law students, bar applicants, who suffer from physical or mental disabilities that result from disease, chemical dependency, or mental health problems that impair or could impair their ability to practice. They assist impaired legal professionals, which has been defined the ABAs formal opinion, 03-431. They educate the bench and bar about these impairments. By tackling these issues, LAP seek to reduce or minimize the potential harm that an impaired attorney can cause to themselves, the public, the profession as a whole and the entire legal system.

   The LAP staff and volunteers are generalists. They're often attorneys and licensed members of state bars, licensed clinical social workers, certified drug and alcohol counselors, doctors who specialize in addictions medicine. Oftentimes, the staff themselves are in recovery. They offer all sorts of services from consultation, referrals to treatment facilities, neuropsychs, psychologists. Many Lawyers Assistance Programs have AA NA and other individual and group support meetings. They monitor attorneys who are involved with bar counsel or on probation, and sometimes just a hotline or phone call away for an individual with a question concern about themselves or about another. If you hear nothing else in this portion of the program, the most important part about a Legal Assistance Program is that they provide confidential help. You can trust a LAP professional to keep your information confidential.

   So lastly, what steps should the firm take? It's a difficult nut to crack for the reason Dr. Daniel Angres, professor of psychiatry at Northwestern Feinberg School of Medicine, states on the screen front of you. He has observed that law firms have a culture of keeping things underground, a conspiracy of silence. There's a desire not to embarrass people. As long as they're performing, it's just easier to avoid it. And there's a lack of understanding that addiction is a disease.

   So looking at all the data, can we, are we making a difference in the wellbeing of the legal profession, through the law firm? And the difference is, are we taking baby steps? Are we putting bandaids on a bigger problem, or are we making big leaps? I think it comes down to the ease with which we can change rules regulations. It's easy to implement new policies, but much harder to change hearts and minds. Are we paying lip service to the subject matter, but not practicing what we preach.

   To be sure things are changing for the better, 32 states have wellbeing, task forces or committees that have been started through a state bar or court agencies. We can see small steps starting around various rules and regulations. The ABA has encouraged all legal stakeholders to develop, promote resource that advance wellbeing in the entire legal profession. Changes are happening to curriculum and admissions standards in law schools. Changes are also happening with regards to continuing legal education, where they're having classes in mental health and substance use disorders become mandatory. We've seen changes in rule 1.1, the duty of competence. We've also seen questions around mental health and substance use disorders, changing on bar applications.

   Additionally, over 200 legal employers have become members of the American Bar Association's wellbeing pledge, which calls upon legal employers to support a healthy work environment. Rules, policies, and procedures are easy to implement, put them in place and then just enforce compliance. But what about this changing hearts and minds, changing the culture of a law firm? Recent data out of the International Bar Association wellbeing studied, showed that globally 82% of law firms say mental health is a priority. 73% actually have wellbeing initiatives in place. But then only 39% involve a majority of managers in policy implementation. Only 29 actually measure the impact of the initiatives. Only 27% collect wellbeing data. And then only 16% have training for managers and firms. We need to change this.

   We are beginning to see law firms start to incorporate wellbeing business plans, impairment policies, and wellbeing templates. They provide information and tools for confidentiality provisions, templates for work restrictions and supervision of the impaired attorney. Periodic reviews of activity, procedures for leave of absence, referral, and treatment. And even conditional employment and return to work provisions.

   Again, all of this is a good start, but is it just putting a bandaid on the gaping gash? How do law firms make the big leaps? How do they change the culture and how do they change the hearts and minds? How do we transform this wellbeing business plan into something that's not just rules and policy, but something that really changes behaviors. Collectively small steps can lead to transformative cultural change in a profession that has always been and will remain demanding. So what are some of the next steps that we can take? What can the law firm do to change behavior? I think leadership is key. Broad scale change requires buy-in and role modeling from the top. Leaders in the courts, regulators office, legal employers, law schools, and bar associations will be closely watched for signals about what is expected. Leaders can create and support change through their own demonstrated commitments to core values and wellbeing in their own lives, and by supporting others and doing the same. Model behavior and be willing to show vulnerability, share stories.

   Twitter has a great program called The Mental Health Allyship Program, where they are destigmatizing through awareness and education. They have an owls program where they have volunteers, listening circles, where people are available for office hours. They have to go through a training on fundamentals and listening. I'm heard and validated, what to do in a crisis, how to be an ally, and how to listen and educate, not solve problems. The goal is empathy, compassion and affirmation. Destigmatizing struggles around mental health issues.

   Taking mental health out of HR. Many employees are not comfortable talking to the HR or human resources departments. They're better with their managers and networks, who are also the best equipped to respond. Making sick days wellness days and branding around it. Taking culture assessments. Legal employers can and should assess the state of wellbeing among lawyers and staff, about whether the workplace supports wellbeing.

   One assessment strategy might include an anonymous survey conducted to measure lawyer and staff attitudes and beliefs about wellbeing. Stressors in the firm that significantly affect wellbeing and organizational support for improving wellbeing in the workplace. Really looking at the organizational climate for support, for mental health or substance use disorders. Asking things about whether lawyers perceive that their employer values and supports wellbeing, are resources available? Do you feel expected to drink alcohol at organizational events? Can we suggest improvements to better support wellbeing?

   Knowledge is power, not only training and education in the workplace, changing MCLE rules and looking at data. Having wellbeing advocates. The advocate or committee should be responsible for evaluating the work environment, identifying and addressing policies and procedures that create the greatest mental health distress among employees. Identifying how to promote a positive state of wellbeing and tracking the progress of wellbeing strategies. They should prepare key milestones, communicate them and create accountability strategies. They should listen.

   Also cultivating partnerships, reaching out to other groups and an emphasis on a service-centered mission at its core laws a helping profession. This can get lost in the rush of practice and the business aspects of law. There's a lot of research that reflects organizational cultures that focus chiefly on materialistic and external rewards, can damage wellbeing and promote a self only focus. Legal employers might evaluate what they prioritize and value and how those values are communicated. When organizational values evoke a sense of belonging and pride, work is experienced as more meaningful. Experiencing work as meaningful is actually the biggest contributor to work engagement,. A form of work related wellbeing.

   Interconnectivity, as jobs demands have increased and budgets have tightened, and we all entered a COVID lockdown, many legal employers have cut back on social activities. This could be a mistake. Social support from colleagues is an important factor for coping with stress and preventing negative consequences like burnout. It inhibits lawyers feeling isolated and disconnected, which helps with law firm branding, messaging and may help reduce turnover. What else can firms do? Incorporate wellbeing education in new lawyer orientation programs. Offer education on wellbeing topics, provide resilience related training. Again, educating on the signs and symptoms of impairment common in the legal profession. They cannot also establish policies and practices that actually encourage wellbeing. Monitor for signs of work addiction and poor self-care, avoid rewarding extreme behaviors. Encouraging lawyers to take vacations, to care for themselves and loved ones. Promote physical activity to aid in health and cognitive functioning.

   If you would like to implement some of these culture changes in your firm, one great resource is the wellbeing toolkit for lawyers and legal employers. It has all kinds of ideas, worksheets and templates to get you started. Another great resource is the ABA Commission on Lawyer Assistance Programs. The commission has all kinds of resources on mental health and substance use disorders. You can also find the number for your state Lawyers Assistance Programs on the site.

   Lastly, the Institute for Wellbeing in Law is dedicated to the betterment of the legal profession, by focusing on a holistic approach to wellbeing, through advocacy, research, education, technical, and resource support and stakeholders partner. The institute is driven to lead a culture shift in law to establish health and wellbeing, as core centerpieces of professional success. The institute has many fabulous resources on their site as well.

   With that, I thank you for listening and be well.

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1h 28s

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