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.
65
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
66 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 34:65
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 ORGANIZATIONS STRATEGY . . . . . . . . 112
B. NONSTIGMATIZING APPROACHES . . . . . . . . . . . . . . . . . . 113
V. GOING FORWARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
2021] “TO BE A GOOD LAWYER, ONE HAS TO BE A HEALTHY LAWYER 67

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