By Aebra Coe

Law360 (October 2, 2020, 7:03 PM EDT) -- As mental health and addiction issues spike amid the coronavirus pandemic, legal employers must be knowledgeable about the right and wrong ways to confront workers about potential mental health problems and offer them help, according to two experts speaking on a Friday panel.

As rates of anxiety, depression and substance abuse rise in the general population during the pandemic, the legal industry is not immune to those challenges and, in fact, attorneys as a group have long had higher rates of mental health issues to begin with, making them particularly vulnerable during these challenging times, said Patrick Krill, a researcher and consultant to legal employers who specializes in attorney mental health and wellness.

"We've been living through a truly unprecedented year that has been posing risks to our mental health, our physical health and our personal well being," Krill said. "It's very important to be more attentive right now about how the people around you are doing than you were prior to this."

Krill presented the continuing legal education webinar course alongside Jonathan A. Segal, managing principal at Duane Morris Institute.

The two men offered up advice for how law firms and other legal employers can encourage attorneys and other workers to reach out for help with mental health issues when it is needed, and also how they can approach those who may appear to have a problem but have not taken the initiative to seek help on their own.

Encourage Help-Seeking Behavior

The first step is making sure all attorneys and staff have access to employee assistance programs and other mental health resources, that they understand what services those programs provide and what level of anonymity is available through them, Segal said.

Krill added that law firms should have clear protocols around what happens when a lawyer seeks help through an employee assistance program, so that everyone knows what information will be kept confidential and what exceptions there are to that.

It is vitally important, he said, that a culture of seeking help is nurtured and that legal employers work to make it as easy and attractive as possible so that lawyers do not hesitate to get help when needed.

"It's important to be as communicative as possible and express what the process is and make sure you're working against any misperception or misunderstanding that may exist about what does happen," Krill said. "We need to demystify that process. In absence of clear protocol, we're oftentimes predisposed to imagining the worst case scenario."

At the same time, while employers can promise not to penalize an attorney for seeking help with a mental health issue, they cannot guard against potential legal malpractice lawsuits or attorney discipline proceedings if inappropriate behavior as a result of those issues comes to light, so there are limits to the protections that employers can offer, Segal noted.

Law firms should make it clear, though, that the goal of offering programs that aid in mental health are for people to get better, not to penalize them, he said.

Intervening When Help Is Not Sought

Still, many times people who are struggling with mental health issues will not seek help on their own, whether because they are afraid of the consequences of telling others or because they are in denial, Segal said.

He says he remembers an attorney who responded to a questionnaire once, marking "yes" when asked if they ever drank at work or if they had medical, legal and family problems caused by their drinking. But when asked, "do you think you have a drinking problem," the person responded "no."

In those cases, firms will often have to intervene and have a conversation with an attorney about behavior that could indicate a mental health issue. The key, Segal and Krill said, is for those non-medical professionals to avoid making any diagnoses or conclusions when there is a suspected issue.

A law firm managing partner or general counsel is not equipped to diagnose a mental health issue and saying something like, "I think you may have depression" can create a number of problems, including legal issues if the person believes they are being slandered.

Instead, they said, an intervention by management would address behaviors that have been noted and allow for an open discussion of performance issues and what may be impacting those as well as other observable behaviors. And then management can make clear that there are resources available for anyone who is struggling with a mental health issue.

Krill pointed to several behaviors that colleagues and management can look for and point to that often show up when someone is struggling with mental health challenges.

The first three are represented by the acronym "MAP" and include changes in mood, appearance and performance.

Another five common signs include personality changes; signs of being increasingly angry, agitated and moody; withdrawing or isolating; neglecting self care and engaging in risky behavior; and being overcome with hopelessness and overwhelmed by circumstances.

In cases where there are not performance issues, it may be a little harder to start the conversation, but it is still important, Krill said.

"Often this leads to ignoring the problem or enabling the problem. If someone seems distressed but is doing well from the performance standpoint, the tendency is to allow that person to continue to produce for the firm," he said. "I would not let the lack of work product issues keep me from having the antennae up and checking in with them generally about how they're doing," he said.

Segal reminded viewers of the webinar that confronting someone isn't an all or nothing thing, either saying "I think you're an alcoholic" or saying nothing at all.

Instead, it is best to express concern about those specific changes and behaviors that could signal an issue and then to see if the person wants to speak to a professional about any problems they're having.

When it does become clear there is a problem, it is still important to get a diagnosis and a plan of action from a mental health professional, and not rely on lay people to do so, Krill said.

"There is a continuum of options available, depending on the level of impairment and distress," he said.

--Editing by Alyssa Miller.

For a reprint of this article, please contact reprints@law360.com.