Thursday, July 23, 2020
Nicholas D. Lawson (Georgetown), “To Be a Good Lawyer, One Has to Be a Healthy Lawyer”: Lawyer Well-Being, Discrimination, and Discretionary Systems of Discipline, 34 Geo. J. Legal Ethics ___ (2020):
In 2017, a National Task Force on Lawyer Well-Being comprised mostly of representatives from lawyer assistance programs (LAPs) issued a report recommending “modify[ing] the rules of professional conduct to endorse well-being as part of a lawyer’s duty of competence.” In this Article, I evaluate one of the premises underlying the report’s recommendations: “[t]o be a good lawyer, one has to be a healthy lawyer.” Review of medical studies and evidence offered by LAPs and others in support of these claims indicates that they do not provide 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.
I then turn to an evaluation of professional well-being (aka wellness) policies, communications, and ideology as discrimination, focusing specifically on discrimination on the basis of mental health disorders and disabilities. I contend that lawyer well-being policies and communications are likely to result in biased appraisals 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.
I discuss the potential for well-being policies to create and reproduce hierarchy, and result in discretionary systems of discipline and social control over the lives and private conduct of legal employees. I conclude with recommendations to eliminate the role of LAPs and associated entities in providing education about mental health and well-being; to improve protections for legal employees from unwarranted mental health inquiries and evaluations; and reject lawyer well-being policies and derogatory rhetoric that put people with mental health disorders and disabilities down.