by Yvette Hourigan

Trying to help other people is never stupid.”
― Stephen King, Insomnia

Introduction

Today nearly every state has a Lawyer Assistance Program (“LAP”).  Some are funded through bar dues, some through the Administrative Office of the Courts, and others through the financial contributions of legal malpractice insurance carriers, to name a few. The structure and operating practices of the LAPs can be as wide-ranging as the funding of our programs.  But no matter the structure or source of funding, the intention is to help the lawyer who may have issues that impair or could likely impair their ability to practice law.  This service is primarily provided free of charge by way of peer-support from lawyers who have recovered from these mental health concerns and providing a connection to professional resources to help the lawyer or judge.

The genesis of lawyer assistance and the history of the national movement has been reported as follows:

It is generally accepted [ ] that the original LAP began as an effort on the part of recovering alcoholic lawyers in the state of Kentucky to help their colleagues get and stay sober.  The LAP in Kentucky was begun in the mid-1980s under the aegis of the Kentucky Bar Association and was loosely based on the 12-step program of Alcoholics Anonymous.  The organizational structure and operational tenets of that LAP were embraced by the American Bar Association, which in 1988 created what is now known as the Commission on Lawyer Assistance Programs (CoLAP), designed to help member state bar associations address addiction issues among their membership.[1]

I’m proud to be the Director from the Commonwealth where the national movement of lawyer assistance began. Most LAPs, including Idaho’s and Kentucky’s, are completely confidential. You can safely call your Lawyer Assistance Program for help for yourself or others, without fear of being “reported” to the Bar, the Courts, your clients, or your mom.  In Idaho, Idaho Bar Commission Rule 1205 sets forth the Confidentiality and Immunity of the Idaho Lawyer Assistance Program:

• Confidentiality/Records. All records of the LAP Program shall be confidential. The LAP shall not maintain permanent records relating to the names of the participants or the nature of their participation. Each person who is the subject of any form of inquiry under these Rules shall be assigned a number, which shall thereafter be used in any subsequent action taken by the LAP Committee, the LAP Program or the Program Coordinator.

The confidentiality codified in the Idaho rule is not just a suggestion or a good idea. It’s a mandate.  As such, anyone can seek assistance for themselves or for others without fear of repercussions or the involvement of disciplinary counsel.  The Idaho LAP is a safe place for lawyers and judges to find resources and peer support for assistance with all types of mental health issues.

Over the years, the focus of and the services offered by LAPs have expanded. While they initially limited their focus to helping lawyers with substance use disorders (primarily alcohol), they have almost universally evolved into broad-brush programs which offer assistance for a diverse array of mental health concerns including depression and chronic anxiety.  In Idaho, the Idaho Lawyer Assistance Program “recognizes that the impairment of a lawyer’s performance may result from physical, mental or emotional illness, including addiction.”[ii] The purposes of the LAP Program are as follows:

(1) Protect the interests of clients from harm caused by impaired lawyers;

(2) Educate the bench, bar and community to the causes of and remedies for lawyer impairment;

(3) develop and administer resources to assist lawyers and judges in securing treatment for addictive diseases and mental health issues, including but not limited to alcoholism and chemical dependency, by providing a system which encourages early entry of the impaired attorney, while recognizing the necessity for absolute confidentiality and trust; and

(4) Provide assistance to impaired lawyers in a manner that is separate and distinct from attorney discipline proceedings and to maintain that distinction.[iii]

Lawyers and Our Not-So-Good Mental Health

Quite frankly, the prevalence of mental health issues among lawyers and judges including depression and substance use disorder should cause each of us to seriously re-assess our own self-care (or lack thereof).  With the lawyer population facing depression rates of about 30%, and our rates of alcoholism and other substance use disorders self-reported at 28% (and perhaps as high as 36% depending on the type of diagnostic tool used), we are a profession in despair.[iv]  Indeed, the National Task Force on Lawyer Well-Being found that the prevalence of mental health and addiction issues in the profession are “incompatible with a sustainable legal profession” and argued that:

[In order] to maintain 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.[v]

It’s fairly easy to appreciate how a substance use disorder could cause impairment and place the lawyer’s clients in danger because of the lawyer’s lack of competence.  But what of mental health issues like depression and anxiety?   How can those impact our law practices?  The best way to explain this is to consider the symptoms of substance use disorder versus the symptoms of another mental health issue like depression.

The symptoms can be identical, and the outcomes can be identical – harm to a client, and harm to the lawyer.

The Relationship Between Good Mental Health and Ethics

But is there really a relationship between good mental health or “well-being” and an ethical law practice?  The answer is yes, and the manifestation is the lawyer’s level of competence.  In the Preamble to the Idaho Rules of Professional Conduct, lawyer competence is mandated. The first rule of professional conduct is that a lawyer provide competent representation to a client.[vi]  Mental and physical conditions may result in impairments to the lawyer which renders them incapable of providing competent representation.  The nexus between a lawyer’s mental and physical health and their competence to practice is more fully explained in the directive as to when a lawyer must decline or terminate representation, that situation being when “the lawyer’s physical or mental condition materially impairs the lawyers’ ability to represent the client.”[vii] 

There are numerous studies which link impairment to breaches of ethical duties and the resultant disciplinary actions.  “It has been estimated that between forty (40%) and seventy-five per cent (75%) of the disciplinary actions taken against lawyers involve practitioners who are chemically dependent or mentally ill.”[viii]  “Mental illness” or lack of good mental health including chronic anxiety and stress can render a lawyer impaired and possibly incompetent to practice the case at hand.

Mental health issues like stress and anxiety may lead to hopelessness and depression.  And profound mental stress, chronic anxiety, and repeatedly long workdays can cause our thinking and our responses to become less sharp and even muddled at times.  These stressors will diminish our ability to make good complex decisions which, of course, is at the heart of what we do all day, every day.  Further, lack of sleep or “short sleep” as it’s called in Dr. Matthew Walker’s excellent (and somewhat terrifying) book Why We Sleep, also diminishes our ability to solve complex problems.[ix]  So our well-being is not just tangentially linked to our competence—it’s integral. Studies prepared in Oregon and in Louisiana found that 80% of their states’ Client Security Fund (“Escrow’) cases involved mental health issues, gambling, or chemical dependency.[x]  In 2005, the Illinois Attorney Registration and Disciplinary Commission reported that impairments accounted for a disproportionate share of program awards.[xi]  And finally, in Illinois, between 1998 and 2005, 28% of all attorneys disciplined were found to be impaired, and 37% of claims against the Illinois Security Fund stemmed from attorneys with impairment.[xii]  Anecdotally, at least in Kentucky, the numbers are much higher.  The disciplinary cases our Court considers where unethical conduct is alleged are overwhelmingly related to a mental health compromise or impairment.  Lawyers are neither slackers nor thieves by nature, but a mental health crisis can lead to both.

Conclusion

Many of us began 2024 making lists of things we wanted to do better this year. They probably included getting more sleep, more exercise, more healthy food, and indulging in less of whatever vice(s) have been causing us trouble in the past; whether that’s fatty foods, excessive alcohol or drug use, or even too much social media.  Improving these habits will help us feel better, but as lawyers, they can also help us work better.  While taking care of our mental and physical health is a good idea, it’s so much more than that.  It’s as important to our competence and performance as staying current on the law and technology.  Now as we enter the second quarter of 2024, review your lists.  Consider what changes you can resolve to make to improve not only the way you feel, but also the way you perform.  Begin thinking about the maintenance of your good mental and physical health as exactly what it is – performance enhancement.  Let it fuel the competitive side of you and you may just find that in a couple of months you’re feeling better and performing at a higher level.  You’re going to work hard anyway – you may as well do it better.  And if you’re a person in recovery from any of the mental health conditions your Idaho LAP provides services for (which is all of them), reach out to Jamie and see if you’re eligible to volunteer to help other lawyers.  You’ll be so glad you did.