That's the contention of a recent paper in the Georgetown Journal of Legal Ethics penned by Nicholas Lawson, a disability advocate, former psychiatry resident and current law student. Lawson contends that the central tenet of much of mental health programming in the legal space is that to be a good attorney, one must be a healthy attorney.
But that idea, he says, runs counter to years of disability rights advocacy aimed at reducing societal views that those with physical or mental health conditions are less able to perform the duties of their jobs.
Lawson suggests that law firms and bar associations should direct their resources away from lawyer assistance programs and wellness programs and toward education around disability rights.
Programs 'Promoted Through Stigmatization'
When the comment period on a proposal currently before the American Bar Association to add well-being resources to law schools' curricula launched this spring, the vast majority of comments submitted were positive and supportive of the seemingly uncontroversial measure. But Lawson objected.
Among those proposing the measure is the ABA's Commission on Lawyer Assistance Programs, or CoLAP, which also released a report in 2017 that recommended regulators modify their rules of professional responsibility to endorse well-being as part of a lawyer's duty of competence.
"I am concerned that these [two] changes [proposed by CoLAP] … would result in discrimination against law students and lawyers with health conditions and disabilities," Lawson said in his comment to the ABA. "Law student and lawyer well-being programming is justified and promoted through stigmatization, using misleading, often false claims about the alleged dangers and deficiencies of lawyers with mental health disorders and disabilities."
Workplace wellness programs have not been entirely uncontroversial in recent years.
In 2016, AARP successfully sued the Equal Employment Opportunity Commission seeking to overturn a rule that allowed wellness programs to offer substantial financial incentives for participation. The organization argued and a federal judge agreed that it was coercive for employees to take a substantial financial hit if they chose not to divulge personal health information and participate in the programs.
A new proposed rule replacing the one that was thrown out was frozen this year by the Biden administration pending further review. The rule would set a limit on the amount of money such financial incentives must remain under in order to comply with the Americans with Disabilities Act.
Still, advocates for lawyer wellness and mental health programming at law firms say it serves to destigmatize the seeking of help for very real mental health needs, not the opposite. According to the ABA website, "Lawyer assistance programs provide confidential services and support to judges, lawyers and law students who are facing substance use disorders or mental health issues."
The 'Frequently Life-Saving Work' of LAPs
Lawson's argument is black and white: Law firms and other legal employers cannot both support disability rights and offer workplace wellness programs. And that binary reasoning is where he goes wrong, according to critics.
"I find the entire argument to be unpersuasive and imbalanced," said Patrick Krill, a researcher and consultant to legal employers who specializes in attorney mental health and wellness. "It also reflects either a lack of familiarity with or total disregard for all of the good and frequently life-saving work of these programs."
Krill co-authored a major national study on attorney mental health that has been cited frequently by the media and academia.
Lawyer mental health and well-being programs, whether employer-sponsored or in the form of a lawyer assistance program, frequently help lawyers understand and recognize when they or a colleague are struggling, Krill said.
He says he has heard "countless stories" of educational presentations in legal workplaces leading to an increase in the use of mental health benefits. And, he added, the presentations also normalize the fact that mental health problems are widespread and not something about which people should feel shame or be stigmatized.
"Aside from education, it is not at all hyperbolic to suggest that lawyer assistance programs frequently save lives by intervening to help lawyers, judges and law students who are actively suicidal or dealing with late-stage addiction," he said.
Bree Buchanan, a co-author of the 2017 CoLAP report on lawyer well-being, also pointed to the importance of wellness programming in destigmatizing mental health issues in legal workplaces.
"The well-being movement in the legal profession seeks to reduce the stigma associated with behavioral health issues so that people feel empowered to seek help early, rather than waiting until these progressive disorders reach the point that one's capacity to function is impacted," Buchanan said.
She had strong words for the contentions made in Lawson's paper.
"To say that well-being initiatives and lawyers assistance programs are harmful is erroneous and, on its face, nonsensical," Buchanan said. "The solution to the widespread behavioral health problems in the profession is not to go backwards in time, taking actions to undermine programs that assist with treatment and prevention. The way forward is to create a culture where treatment for health problems — whether they be cancer, depression, diabetes or substance-use disorders — is encouraged, and not stigmatized or criticized as a personal failing."
'We Are Here If You Need and Want Help'
Stacey Dougan, a mental health counselor who specializes in attorney well-being, says the contention that any well-being efforts must necessarily result in stigmatization or discrimination is a flawed argument.
"I truly believe it can be both and it doesn't have to be either/or," Dougan said.
Dougan agrees that Americans with Disabilities Act education and resources are very important and should be a part of the discussion as the industry tackles how to approach helping legal professionals tackle mental health and wellness.
"Protected employees need to know their rights and employers need to know their responsibilities," she said.
But well-being programming is not aimed at identifying lawyers who may have mental health conditions and targeting them in a discriminatory or degrading way, as suggested by Lawson in his paper. Instead, she said, the programs are simply a way to help everyone, regardless of their disability status, to better manage the stress that inevitably comes with being a lawyer.
"I don't know anybody who can't benefit from looking at their own behavior and asking, 'Am I taking good care of myself?'" Dougan said.
According to Denise Perme, manager of the D.C. Bar's Lawyer Assistance Program, her organization does not believe or advocate that to be a good lawyer, one must be a healthy lawyer.
"Many lawyers experience mental health problems which have minimal or no impact on their career performance and abilities," Perme said. "I think each of us ideally should be aware of our own mental health symptoms, take care of ourselves and seek professional help if it's needed."
The aim of her program, Perme said, is to offer attorneys tools that allow them to have more self-awareness around their mental health symptoms to better understand what steps they may need to take to manage them and to educate them on the resources available through the bar's LAP.
"Our message is, 'We are here if you need and want help with something,'" she said. "I don't think resources that help people be healthier and happier should be kept away from the workplace."
Lawson is not convinced. He says that, in addition to the risk of discrimination, the focus on workplace well-being has sucked energy and resources away from other potential priorities like disability rights and inclusion. He advocates for alternate ways to reduce stigma around mental health conditions in the profession.
"To effectively reduce mental health stigma within the legal profession, leaders at law schools and firms could commit to electing leaders with disclosed mental health disorders and disabilities, or they could create employment protections for current employees who choose to disclose these conditions," he said. "Providing contract protections for existing legal employees who decide to publicly disclose having a mental health disorder could facilitate interactions with peers that would disconfirm stereotypes and prejudice about mental health disorders within the legal profession."
--Editing by Orlando Lorenzo and Kelly Duncan.
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