Lawyer Well-Being and Attorney Regulation
The Bencher—March/April 2020
By John P. Ratnaswamy, Esquire
Lawyer well-being and ethical practice are closely related. In fact, during my ethics column tenure with The Bencher, I have written three prior times on this subject.
In August 2017, the National Task Force on Lawyer Well-Being issued its report “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.” The “Path” report offered three reasons to take action: organizational effectiveness, ethical integrity, and humanitarian concerns (pp. 8–9). With respect to ethics, the Path report stated in part: “lawyer well-being influences ethics and professionalism. Rule 1.1 of the ABA’s Model Rules of Professional Conduct requires lawyers to ‘provide competent representation.’…Troubled lawyers can struggle with even minimum competence.” There is data from around the country indicating that lawyers who are struggling with their own well-being sometimes struggle with their work. For example, the Illinois Attorney Registration and Discipline Commission repeatedly has found that about a fourth of disciplined lawyers in Illinois suffer from addiction or mental illness. E.g., ARDC 2018 Annual Report, p. 5.
In February 2018, the American Bar Association’s (ABA’s) House of Delegates adopted a resolution that urges essentially every component of the legal system to consider the Path report’s recommendations. Since then, the ABA has adopted a campaign to address attorney mental health issues and substance use issues and to help legal employers support healthy work environments. Resources have included a template and toolkit for legal employers. See, e.g., www.americanbar.org/groups/lawyer_assistance/working-group_to_advance_well-being_in_legal_profession and www.americanbar.org/news/abanews/aba-news-archives/2019/11/aba-wellness-pledge-update.
The Path report includes a set of “Recommendations for Regulators” (pp. 25–31). The report includes an overall recommendation that regulators work to be seen as partners with practitioners rather than as “police.” The report further recommends that regulators adopt formal regulatory objectives that prioritize lawyer well-being; modify the rules of professional conduct to endorse well-being as part of a lawyer’s duty of competence; expand continuing legal education requirements to include well-being topics; require law schools to create well-being education for students as an accreditation requirement; reevaluate bar application inquiries about mental health history; adopt essential eligibility admission requirements (to provide a framework for determining whether an individual has the required abilities, with or without reasonable accommodations); adopt a rule for conditional admission to practice law with specific requirements and conditions; publish data reflecting the low rate of admission denials due to mental health disorders and substance abuse; implement proactive management-based programs that include lawyer well-being components; adopt centralized grievance intake systems (with specialized training for intake personnel to more swiftly identify and possibly intervene with lawyers struggling with substance use or mental health disorders); modify confidentiality rules to permit one-way sharing of lawyer well-being–related information from regulators to lawyer assistance programs; and adopt diversion programs and other alternatives to discipline that are proven successful in promoting well-being (pp. 25–30). The report also recommends adding well-being–related questions to the Multistate Professional Responsibility Exam (p. 30).
The Path report states in part: “Discipline does not make an ill lawyer well.” (p. 29). The report encourages diversion programs for “minor lawyer misconduct that often features an underlying mental health or substance use disorder,” stating that “diversion agreements can change a lawyer’s life.” Id. The report, as to more serious discipline cases, suggests that in some cases when suspension is warranted, probation with requirements for training, testing, monitoring, and treatment may be appropriate. Id.
In November 2017, the Supreme Court of Illinois adopted “Regulatory Objectives for the Provision of Legal Services.” First on the list is “protection of the public,” and many other laudable objectives follow, including “efficient, competent, and ethical delivery of legal services.”
Helping struggling lawyers furthers those objectives, and it is a human thing to do as well.
John Ratnaswamy, Esquire, is the founder of The Law Office of John Ratnaswamy, LLC, in Chicago, Illinois. He is an adjunct professor of legal ethics at the Northwestern University School of Law. This column should not be understood to represent the views of any of those entities or Ratnaswamy’s or the firm’s current or former clients.