To Be a Good Lawyer, One Has to Be a Healthy Lawyer: Lawyer Well-being, Discrimination, and Discretionary Systems of Discipline

“To Be a Good Lawyer, One Has to Be a Healthy

Lawyer”: Lawyer Well-Being, Discrimination, and

Discretionary Systems of Discipline

NICHOLAS D. LAWSON*

ABSTRACT

In 2017, a National Task Force on Lawyer Well-Being comprised mostly of

representatives from lawyer assistance programs (LAPs) issued a report recom-

mending “modify[ing] the rules of professional conduct to endorse well-being

as part of a lawyer’s duty of competence.” This Article evaluates one of the

premises underlying the report’s recommendations: “[t]o be a good lawyer,

one has to be a healthy lawyer.” A review of medical studies and evidence

offered by LAPs and others in support of these claims indicates that there is no

empirical evidence that substance use and other mental health disorders “are

leading causes of malpractice suits and ethical disciplinary actions against

attorneys.” Further, medical evidence strongly suggests that many lawyer well-

being interventions currently being proposed offer little to no mental health

benef‌its and are more likely to prevent than encourage treatment engagement.

This Article then evaluates professional well-being (or wellness) policies,

communications, and ideology, focusing specif‌ically on discrimination based on

mental health disorders and disabilities. It contends that lawyer well-being poli-

cies and communications are likely to result in biased appraisals of lawyers

under the American Bar Association’s Model Rules of Professional Conduct

1.1, 1.16(a)(2), and 8.3(a), and act as a subterfuge for violating the Americans

with Disabilities Act. It also discusses the potential for well-being policies to

create and sustain hierarchy, and result in discretionary systems of discipline

* J.D., Georgetown University Law Center (expected May 2021); M.D., St. George’s University (2013);

Certif‌icate, Columbia University (2008); A.B., Vassar College (2005). I am a former psychiatry resident. I have

never been referred to a physician health program or lawyer assistance program. I would like to thank Jarrod

Reich, my mentor on an earlier version of this manuscript, for inspired supervision and probing feedback, and

for his dedication to legal employees. I benef‌itted from reading his article, Capitalizing on Healthy Lawyers:

The Business Case for Law Firms to Promote and Prioritize Lawyer Well-Being, 65 VILL. L. REV. 361 (2020). I

also benef‌ited from a related webinar discussion hosted by the American Bar Association Commission on

Disability Rights: Employee Well-Being: What Can and Can’t Employers Ask?, https://www.americanbar.org/

events-cle/ecd/ondemand/380534061/. I thank Stephen Gillers, Leslie Levin, Jennifer Mathis, Ilene Moore,

and Michael Perlin for their helpful comments on an earlier draft, and Aaron Konopasky and Christopher

Kuczynski for discussing these topics with me over the years. Lastly, I thank my wife, my parents, my frequent

coauthors J. Wesley Boyd and Adina Kalet, and my former supervisors, including Amy Allbright, Lewis

Bossing, and Evan Greenberger, for believing in me. All opinions and mistakes are my own. © 2021, Nicholas

D. Lawson.

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and social control over the private conduct of legal employees. Finally, it con-

cludes with recommendations to reinforce the employment rights of legal

employees; eliminate the role of LAPs and associated entities in providing edu-

cation about mental health and well-being; improve protections from unwar-

ranted mental health inquiries and evaluations; and reject lawyer well-being

policies and derogatory rhetoric that put people with mental health disorders

and disabilities down.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

I. THE RISE OF LAWYER ASSISTANCE PROGRAMS, LAWYER

WELL-BEING PROGRAMMING, AND RHETORIC. . . . . . . . . . . . . 71

A. ORIGINS, DESIGN, AND STRUCTURE OF LAPS . . . . . . . . . . 71

B. RISE IN INFLUENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

C. TWO LAWYER WELL-BEING PREVALENCE STUDIES . . . . 75

D. TASK FORCE REPORT: “THE PATH TO LAWYER WELL-

BEING” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

E. COLAP LAWYER WELL-BEING EDUCATIONAL

PROGRAMMING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

F. COLAP LAWYER WELL-BEING PLEDGE, TOOLKIT, AND

TEMPLATE FOR LEGAL EMPLOYERS . . . . . . . . . . . . . . . . 79

II. EVALUATING THE MEDICAL EVIDENCE UNDERLYING KEY

CLAIMS ABOUT LAWYER WELL-BEING . . . . . . . . . . . . . . . . . . 81

A. CLAIMS “THAT MENTAL ILLNESS AND SUBSTANCE

ABUSE ARE LEADING CAUSES OF MALPRACTICE SUITS

AND ETHICAL DISCIPLINARY ACTIONS AGAINST

ATTORNEYS” HAVE LONG BEEN DISCREDITED . . . . . . . . 81

1. CONFLATING OF PREVALENCE AND CAUSAL EFFECTS . . . . . . . 82

2. CONFUSION ABOUT THE WORD “IMPAIRMENT”. . . . . . . . . . . 83

B. CLAIMS THAT WORKERS WITH MENTAL HEALTH

DISORDERS ARE LESS PRODUCTIVE AND ARE

ECONOMICALLY BURDENSOME TO THEIR EMPLOYERS

ARE FLAWED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

C. CLAIMS ABOUT THE EFFECTIVENESS OF WELL-BEING

INTERVENTIONS ARE UNSUBSTANTIATED. . . . . . . . . . . . 88

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III. HARMS RESULTING FROM WELL-BEING PROGRAMS,

INITIATIVES, AND COMMUNICATIONS . . . . . . . . . . . . . . . . . . . . 92

A. ENGAGEMENT AND AUTONOMY . . . . . . . . . . . . . . . . . . . 92

B. DISCRIMINATORY EFFECTS OF LAWYER WELL-BEING

POLICIES UNDER MODEL RULES 1.1, 1.16(A)(2), AND 8.3(A) 93

C. WELL-BEING POLICIES, COMMUNICATIONS, AND

PRACTICES AS A SUBTERFUGE FOR VIOLATING THE ADA 95

1. BACKGROUND AND FRAMEWORK OF WORKPLACE WELLNESS

REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

2. PROFESSIONAL POLICIES AND COMMUNICATIONS RELATED TO

WELL-BEING VS. THE ADA . . . . . . . . . . . . . . . . . . . . . . . 97

3. BURNOUT, RESILIENCE, EMOTIONAL INTELLIGENCE, AND

PERSONALITY ASSESSMENTS . . . . . . . . . . . . . . . . . . . . . . . 98

4. THE EMPLOYERS’ AGENTS: COWORKERS, WELL-BEING

ADVOCATES, AND EMPLOYEE ASSISTANCE PROGRAM AND LAP

PERSONNEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

D. SOCIAL CONTROL, SURVEILLANCE, AND

DISCRETIONARY SYSTEMS OF DISCIPLINE. . . . . . . . . . . . 101

1. WELL-BEING IDEOLOGY SHIFTS BLAME FROM INSTITUTIONS TO

INDIVIDUALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

2. PEER REPORTING POLICIES AT LAW SCHOOLS . . . . . . . . . . . . 104

3. BROAD SURVEILLANCE NETS AND DISCRETIONARY DISCIPLINE 105

IV. ON ADVOCATING FOR PEOPLE WITHOUT STIGMATIZING THEM 107

A. TWO STIGMATIZING APPROACHES. . . . . . . . . . . . . . . . . . 108

1. THE ACGME DEFINES WELL-BEING AS A COMPONENT OF

RESIDENT COMPETENCE . . . . . . . . . . . . . . . . . . . . . . . . . . 108

a. History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

b. Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

c. Lessons for the Legal Profession. . . . . . . . . . . . . . . 111

2. THE WORLD HEALTH ORGANIZATION’S STRATEGY . . . . . . . . 112

B. NONSTIGMATIZING APPROACHES . . . . . . . . . . . . . . . . . . 113

V. GOING FORWARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

2021] “TO BE A GOOD LAWYER, ONE HAS TO BE A HEALTHY LAWYER” 67