Support for Mental Health, Substance Use and Lawyer Well-Being Continuing Legal Education (CLE) Requirement for New York Attorneys

The New York City Bar Association (“City Bar”)[1] respectfully urges lawyers, law firms, corporate law departments, legal services organizations, judges, law schools, and state and local bar associations to support the inclusion of programs regarding mental health, substance use and well-being in the legal profession (“Mental Health/Substance Use CLE”) as a separate required credit for New York attorneys.

Our recommendation is that lawyers licensed to practice in New York be required to complete one (1) credit hour of Mental Health/Substance Use CLE per biennial reporting cycle, and that the new requirement not increase the total number of hours required in each cycle.[2]

INTRODUCTION

That many lawyers suffer from mental health and substance use disorders is not surprising. The legal profession is, by nature, high-stress and high stakes – often with clients’ livelihoods or liberty on the line, and frequently involving confrontational interactions with adversaries, government agencies, and in court. Additional stresses include rigid and competitive law firm hierarchies, long work hours and clients’ growing expectations of 24-hour service, a work hard/play hard after-work culture, and a profession where reputations are built on demonstrated toughness, high ethical standards, and perfectionism.

Indeed, the legal profession has been aware of – and coping with – these problems for decades: attorney disciplinary committees, bar associations, and lawyers assistance programs have been handling lawyer competence issues associated with mental health and substance use disorders for years and have, in the process, collected local, survey-based information confirming the prevalence of these problems. And the New York Lawyers Fund for Client Protection has repeatedly stated in its annual reports that misconduct by lawyers resulting in clients’ financial losses is “often traced” to, among other things, alcohol and drug abuse or mental illness.[3] However, the largely anecdotal and regional understanding and handling of these issues changed drastically in 2016, when a study commissioned by the American Bar Association, in conjunction with the Hazelden Betty Ford Foundation – “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys” – was published in the Journal of Addiction Medicine. This data-driven statistical research report brought the widespread and pervasive problems of mental health, substance use, and lawyer well-being into sharp focus and has captured the public’s attention.

The breakthrough study, which analyzed information gathered from 12,825 lawyers, presented some alarming statistics, particularly with respect to young lawyers. 20.6% of respondents exhibited signs of problem drinking, with the rate of problem alcohol use markedly higher among younger associates (31.9% of attorneys age 30 and under reported alcohol-related issues). Among those who used drugs (both legal and illicit), 74.1% used stimulants, 51.3% used sedatives, and 21.6% used opioids. Notably, only a fraction of respondents (6.8%) stated that they had sought treatment for drugs or alcohol— and many cited concerns about confidentiality as the main obstacle to seeking help.[4] The study also found that 28% of lawyers suffer from depression, 19% reported problems with anxiety, 23% suffer from stress, and that lawyers exhibit increased levels of suicide, work addiction and sleep deprivation.[5] These sobering findings, especially with respect to young lawyers, have raised serious concerns about the health and competence of lawyers in an increasingly demanding profession.

The following year, the ABA’s National Task Force on Lawyer Well-Being issued a report, “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.” It presented a call to action, urging all stakeholders and leaders in the profession – including judges, regulators, legal employers, law schools, bar associations, lawyer assistance programs and others – to acknowledge the heightened mental health and substance use problems suffered by many in the profession, and to take an active role in creating solutions to promote lawyer well-being. Recommendations include destigmatizing mental health and substance use problems and promoting help-seeking behaviors; providing training, educational programs, and materials regarding lawyer well-being; fostering collegiality, mentorship and sponsorship, diversity and inclusion, and respectful engagement throughout the profession; de-emphasizing alcohol at social events; promoting dialogue about suicide prevention; and providing confidential counseling and other resources. At its February 2018 mid-year meeting, the ABA followed up by passing Resolution 105, which urges law firms, law schools, bar associations, the judiciary, and other organizations to consider the recommendations set out in the 2017 report.

Additional efforts on the part of the ABA include the formation of a Presidential Working Group to Advance Well-Being in the Legal Profession, and publication of the “Well-Being Toolkit for Lawyers and Legal Employers” (tools for legal employers to promote organizational changes to promote lawyer well-being) and the “Well-Being Toolkit Nutshell: 80 Tips for Lawyer Thriving” (which distills 80 essential points from the Toolkit).[6] The ABA has also launched a campaign to promote recognition and treatment of mental health and substance use problems through a pledge that calls upon signatory legal employers to prioritize and implement a seven-point framework to raise awareness, address substance use and mental health issues, and improve lawyer well-being— with the number one commitment being to provide “enhanced and robust education to attorneys and staff on topics related to well-being, mental health, and substance use disorders.”[7] As of May 2020, there were 181 signatories, including law firms, law schools, and corporate entities.[8]

RECOGNIZING A GROWING NEED, AND DEMAND, FOR INFORMATION AND RESOURCES TO ADDRESS MENTAL HEALTH, SUBSTANCE USE, AND LAWYER WELL-BEING

Such efforts have helped mobilize the profession to seek guidance and become more informed with respect to detecting and addressing mental health and substance use issues suffered by law students and lawyers. Eileen Travis, Executive Director of the New York City Bar Association’s long-standing Lawyer Assistance Program, notes an exponential increase in the number of requests from law schools, law firms, and the judiciary for presentations and training sessions on these issues.[9] Law firms and other business entities have also begun hiring professional staff to help them identify and handle mental health and substance use issues in-house.

Travis also notes that, while substance use is a major concern that has garnered significant attention in recent years, even more lawyers suffer from mental health disorders (or substance use with co-occurring undiagnosed and/or untreated mental health disorders) – including stress, suicidal ideation, bipolar disorder, or depression – and that such problems are sometimes more difficult to detect and address. Furthermore, the stigma historically associated with mental health and substance use problems continues to be a significant obstacle preventing lawyers from seeking professional help. Thus, an essential part of addressing mental health, substance use, and lawyer well-being issues is to make accurate information and useful resources available to lawyers as widely as possible— to raise awareness of the pervasive and widespread nature of these problems, to destigmatize them, to inform lawyers about how and where to get help, and to identify the root causes that drive or exacerbate these problems within the profession. In addition to in-patient and out-patient rehabilitation programs and assistance from individual mental health practitioners, it is important for lawyers suffering from mental health and/or substance use disorders to know that lawyers assistance programs are available to provide free, confidential help and can also provide referrals to appropriate resources for treatment, counseling, and if indicated, medical intervention.

ABA MODEL RULE AND MENTAL HEALTH/SUBSTANCE USE CLE IN OTHER STATES

In February 2017, the ABA adopted a resolution amending its Model Rule for Minimum Continuing Legal Education to include one hour of Diversity& Inclusion (D&I) programming every three years, and one hour of mental health/substance use disorder programming every three years. Co-sponsored by the ABA’s Standing Committee on Continuing Legal Education, Commission on Lawyer Assistance Programs and Law Practice Division, the Resolution adopted an amended Model Rule for MCLE, which states in pertinent part:

Section 3. MCLE Requirements […]

 Requirements.

All lawyers with an active license to practice law in this Jurisdiction shall be required to earn an average of fifteen MCLE credit hours per year during the reporting period established in this Jurisdiction. [and]

As part of the required Credit Hours referenced in Section 3(A)(1), lawyers must earn Credit Hours in each of the following areas:

Ethics and Professionalism Programming (an average of at least one Credit Hour per year);

Mental Health and Substance Use Disorders Programming (at least one Credit Hour every three years); and

Diversity and Inclusion Programming (at least one Credit Hour every three years.)[10]

As of the date of that resolution, only three states – California, North Carolina and Nevada – had a stand-alone mental health/substance use CLE requirement.[11] Since then, Illinois, Oregon, and South Carolina have adopted this requirement.[12]  California, North Carolina, Oregon, and South Carolina require 1 hour of mental health/substance use programming every three years; Nevada requires 1 hour every year; and Illinois requires 1 hour every two years.[13]

THE TIME IS RIGHT FOR ADDING A MENTAL HEALTH, SUBSTANCE USE AND LAWYER WELL-BEING CLE IN NEW YORK

As mounting evidence shows that lawyers are suffering from mental health and substance use problems at heightened rates in comparison to people in other professions, the ABA has brought the issue to the forefront and is urging states to take action. Some states have done so by implementing mental health and substance use CLE requirements, and more will undoubtedly follow suit. With the enormous numbers of lawyers living and working in New York State, not to mention the many law students who graduate from our excellent law schools, New York must make addressing this problem a priority— both for the health and well-being of our lawyers and their families, and to maintain the quality and integrity of the legal services provided in our state.

New York should adopt and implement a mental health, substance use and lawyer well-being CLE requirement, which would go a long way toward providing much-needed information and support to legal professionals licensed to practice in the state, and to the institutions and organizations for which they work. The idea of a stand-alone mental health and substance use CLE requirement has support from the ABA, and there is precedent for it in a number of states. Furthermore, law firms and other legal institutions faced with these issues are proactively seeking out training and guidance on how to recognize and handle mental health and substance use issues and support lawyer well-being.

In fact, as attention on the pervasive problems of mental health and substance use within the legal profession has increased, the demand for guidance and services for lawyers struggling with these issues is growing. A subject that, until recently, was not openly discussed has become more mainstream. Former Deputy Attorney General Sally Yates shared the story of the suicide of her father, John Kelley Quillian, who was a judge for almost 20 years on the Georgia Court of Appeals, at an event focused on raising awareness for suicide prevention.[14] And the media has reported on multiple instances of lawyers taking their own lives in the face of depression and other mental health issues associated with the pressures of their work.[15] The New York Law Journal ran a series of stories on aspects of the legal profession that contribute to high rates of mental health and addiction, and has reported on an “epidemic of loneliness” among lawyers.[16] And many who are in recovery from a mental health or substance use disorder have also come forward to share their stories— with the recurring theme that assistance from others, including professional intervention and treatment, was essential to their recovery.[17]

The attorney disciplinary committees of the New York court system have also recognized the widespread and pervasive nature of these problems within the legal profession, as well as the need to provide attorneys with support and help to overcome them. In 2016, a “Diversion Rule”[18] was adopted in all four Appellate Division departments that permits, in certain circumstances, lawyers charged with low-level misconduct to participate in a treatment-focused program and, upon successful completion, to avoid censure—in essence, giving them a second chance. The rule provides that, if the lawyer can show a causal connection between the misconduct and a mental health or substance use disorder, he/she, by court approval, may be diverted to a monitoring program under the aegis of one of the state’s three lawyer assistance programs and avoid an investigation. Upon successful completion of the program, the misconduct record, by approval of the appellate division, may be sealed. (The record may be unsealed if the lawyer faces a subsequent disciplinary action for misconduct.) The state-wide adoption and implementation of this rule reflects a growing understanding that lawyer misconduct can be connected to mental health or substance use disorders, and that professional intervention and treatment (rather than censure) can more effectively address and prevent future recurrence of such problems.

Indeed, increasing the knowledge base and availability of support within the profession with respect to mental health and substance use is not only helpful to lawyers and their families, but to their clients and employers as well. Malpractice insurers for lawyers and law firms report that “[i]mpairment-related claims could be growing in frequency,” which may be attributable to the “growing emphasis on profitability and the business side of the profession,” and which leaves less time for lawyers’ involvement in bar activity and mentoring.[19] Law firms are better able to handle employee impairment when lawyers and staff are trained to recognize such problems and where there are resources in place to address them.[20]

THE PUBLIC HEALTH CRISIS PRECIPITATED BY COVID-19 UNDERSCORES THE IMPORTANCE OF EDUCATION ON MENTAL HEALTH AND SUBSTANCE USE ISSUES AND THE NEED FOR WIDELY AVAILABLE SUPPORT

The current public health crisis and associated increases in personal, professional and economic stresses—coupled with the heightened dangers of prolonged social isolation for people struggling with depression, addiction and other mental health disorders—underscore the need to educate, increase understanding and provide support in the areas of mental health and substance use.

The legal profession has not been spared from the economic pressures faced by many businesses in the wake of the pandemic. Law firms, corporate law departments, and solo practitioners are all grappling with significant disruptions in the pace and flow of their work amidst a new and changing economic reality. Law firms are canceling events, furloughing employees, and trying to serve their clients and stay afloat in an environment where whole industries have been shut down or are severely limited in their activities, and where courts, government agencies, social services organizations, and jails and prisons have vastly curtailed their normal operations. Cases are not moving forward. Clients are not able to pay their legal fees. Business transactions are on indefinite hold.

In addition, lawyers are facing increased professional pressures—helping clients with legal problems stemming from the pandemic, and staying abreast of new court filing protocols, altered deadlines, and changes in court procedures (some differing from judge to judge)—along with personal stresses, including juggling at-home remote work (and possible job loss) with childcare and supervising homeschooling, managing household duties and, in some cases, suffering from illness or caring for ill family members. “Lawyers across the country and world are jointly trying to grapple with the new normal as it is reestablished again and again and again.”[21]

Perhaps the most worrisome aspect of the new normal with regard to mental health and substance use disorders is “social distancing,” a key feature of the shelter-in-place mandates in place around the country and around the world. Isolation is especially problematic for people coping with mental health and substance use issues, as many rely on in-person mental health services and resources like Alcoholics Anonymous meetings.[22] With alcohol sales up 55% since the start of the pandemic,[23] the loss of essential social networks and accountability is troubling and will continue to contribute to lapses in mental health and increases in harmful behaviors.

As people struggle with mental health and substance use disorders during this period of prolonged social distancing and isolation, organizations like Alcoholics Anonymous are trying to publicize online options, including Zoom and Google Hangouts, for people in need of assistance from support groups.[24] While much remains uncertain about the long-term public health prognosis with respect to COVID-19 and if and when life will go back to normal, what is clear is that widespread availability of resources to address mental health and substance use disorders is crucial, and that there is no time like the present to expand awareness of how to detect these issues in others, as well as in ourselves, and knowledge about the options available for help, support and treatment.

MENTAL HEALTH, SUBSTANCE USE & LAWYER WELL-BEING CLE PROGRAMMING IS ALREADY AVAILABLE AND WILL CONTINUE TO EXPAND

In addition to live presentations and trainings offered by providers like the City Bar’s Lawyers Assistance Program (parts of which are already certified as CLE programs), CLE providers offer a range of CLE programs on mental health, substance use and lawyer well-being. And with the increasing demand for resources and support in this area, it seems certain that available programming will continue to expand.

For example, the ABA’s website offers on-demand CLEs including, “Opioid Addiction and Substance Abuse: What’s a Plan to Do?”, “The Path to Lawyer Well-being: Practical Recommendations for Positive Change,” “Lawyer Well-Being: What’s It Got To Do With Me?”, “Ethics & The Addict: Detection and Treatment of Addiction and Compliance With Applicable ABA Model Rules of Professional Conduct,” and “‘Scared. Ashamed. Crippled’: Overcoming Mental Health Disabilities in Law.”[25]

The New York State Bar Association (NYSBA) website similarly offers relevant online CLE programs, including, “Stress, Alcohol and Substance Abuse in the Legal Profession,” “Lawyer Assistance/Alcohol & Substance Abuse 2018,” and “What Makes Lawyers Happy.”[26]

And the City Bar has offered multiple live CLE programs on mental health and lawyer well-being (all of which have been free for members) including, “Practicing Law at the Speed of Light: Building Resilience and Reducing Stress in a Climate of Change,” “Diversity, Equity & Inclusion and Lawyer Well-Being,” and “Mindfulness for Lawyers: Improving Focus, Productivity, and Well-Being.” In recent months, the City Bar hosted a CLE program on “The Interplay of Mental Health Disabilities and Workplace Accommodations,” (September 2019), another CLE program entitled, “Mental Health & Substance Abuse Problems in Attorneys: Barriers to Effective Treatment and the Lawyers Assistance Program” (February 2020) and, since the pandemic, a CLE webinar, “Mindfulness Methods for Challenging Times” (April 2020).

***

Now that we have actual statistics demonstrating how pervasive the problems of mental health and substance use are among members of the legal profession and how these problems impact lawyers’ personal and professional lives, we must make it a priority within the profession to increase knowledge, decrease stigma, and provide resources for people who need them. As professional problem solvers, it is difficult for lawyers to admit to themselves, or to others, that they themselves may have a mental health or substance use issue. Such an admission feels tantamount to professional failure; and in a profession where reputation and toughness are often essential elements of the job, we may fear such admissions signal weakness, incompetence, or worse. We also may be reluctant to identify such problems in others, perhaps for the same reasons— viz., not wanting to besmirch their reputations, especially if we are not sure how best to intervene or what resources may be available to help that person.

CLE programs are an important tool to raise awareness of these issues within the profession, and to educate and empower those who can effect change— including within law firms, prosecutors’ offices, defender organizations, bar associations, and law schools. Especially in an area where lawyers affected by such issues are the least likely to feel they can openly seek information or help, requiring all New York lawyers to complete a stand-alone mental health, substance use and lawyer well-being CLE each biennial reporting period will go a long way toward disseminating much-needed information, training, and support to practicing lawyers across the state and in all areas of the profession.

Lawyer impairment from mental health or substance use issues is a serious concern, not just for lawyers and their families, but because of the harm such impairment can cause to the level and quality of legal services we provide to our clients— which, in turn, may seriously affect our clients’ lives and livelihoods. A stand-alone mental health/substance use CLE is an important step toward addressing and decreasing such harms, by promoting the health of legal professionals and, by extension, protecting the quality and integrity of New York’s legal services industry. Furthermore, such programs are eminently appropriate for MCLE certification because their “primary objective [is] to increase the professional legal competency of the attorney in ethics and professionalism, skills, law practice management [and/or] areas of professional practice.”[27]

We urge lawyers and legal institutions throughout New York State to recognize the pervasiveness of mental health and substance use problems in our profession, and to prioritize expanding education and other resources to address them.  The City Bar stands ready to assist in whatever way will help garner support and ultimately encourage the CLE Board to implement this important addition to New York State’s CLE requirements.

June 2020