I lost a lot of weight during the month or two on either side of my cancer diagnosis.  My office is in the Costello Courthouse. One day shortly after I was diagnosed but before I’d told many people, I walked out of the office suite and into a public section of the building.  I bumped into a lawyer who I’d known for a long time but hadn’t seen in a while and who hadn’t heard the news.  I don’t recall the lawyer’s exact words but they were something like this:

  • “Wow Kennedy! Are you okay?? Maybe eat a cheeseburger every now & then!!”

It didn’t bother me then and doesn’t now.[1]

Rather, I share the story because it reminds me how much more willing we are to express concern over another’s physical well-being than we are about their mental & emotional well-being.  While I understand the reluctance to get involved with a colleague’s behavioral health, I post today to urge readers to help others when you can.  Especially when you know that they could use the help. And, as I’ve argued before, despite our best efforts to convince ourselves otherwise, we all know when a colleague needs help.

In 2017, I posted Lawyers Helping Lawyers: Keep it on the Front Burner.  It included this paragraph:

  • Whatever we do to address [lawyer well-being], we need to make sure it includes spreading the word that it is no longer sufficient to wait to refer someone to help until he’s hospitalized or her practice has cratered.  Refer early.  Not to save clients from harm, but to help a fellow human being get into recovery or treatment.

The paragraph referred back to my very first post on lawyer wellness: Lawyers Helping Lawyers.  Published it on March 3, 2016, the post urged lawyers to help others for no other reason than because you can. Here’s an excerpt:

“In my experience, lawyers are in position to recognize signs of substance abuse and mental health issues exhibited by another lawyer, whether a co-worker, colleague, or opposing counsel.  Some lawyers wonder whether there is a duty to report substance abuse and mental health issues.  

But how about this?

How about coming it at from the perspective of helping another human being instead of analyzing whether another’s struggles trigger your duty to report? If a colleague, co-worker, or opposing counsel needs help, why not help them?“

Anticipating an argument that would echo throughout the early days of our wellness dialogue, I added:

“Yes, I get it, we are reluctant to get involved.  Some of these might sound familiar:

  • It’s not my business.
  • I don’t know for sure, could’ve been she was having a bad day.
  • It helps my client that he isn’t doing his job.
  • The firm doesn’t need the bad publicity.“

The “I don’t know for sure” lingers today. Here’s my response:

  1. The only reason you end up arguing to yourself “Self, you don’t know for sure” is because you’ve already realized that someone likely needs help.
  2. Trust your instinct.
  3. Err on the side of helping.

Still, while we almost always recognize the signs and symptoms of behavioral health issues, I thought I’d share some reminders.

First, the “I don’t know for sure” argument has been around for a long time.  Way back in 2003, the ABA issued Formal Opinion 03-431. The opinion addresses the duty to report another lawyer’s violations that result from substance abuse or impairment. It includes this reminder:

  • ““Because lawyers are not health care professionals, they cannot be expected to discern when another lawyer suffers from mental impairment with the precision of, for example, a psychiatrist, clinical psychologist, or therapist. Nonetheless, a lawyer may not shut his eyes to conduct reflecting generally recognized symptoms of impairment (e.g., patterns of memory lapse or inexplicable behavior not typical of the subject lawyer, such as repeated missed deadlines).” (emphasis added).

We don’t need to be experts or specially trained to know when a colleague needs help. 

Indeed, several jurisdictions have put out clear & refreshingly brief guidance on the signs & symptoms of behavioral health issues. For example, check out this brochure from the North Dakota Lawyer Assistance Program.  Not one of the nine “signs of lawyer impairment” is even close to being outside our capacity to observe.

From there, it can be as simple as asking the lawyer “is everything okay?” As I blogged in 2021’s Ask the Question, the Institute for Well-Being in the Law published this guide on how to approach a colleague in need.  The guide quotes a lawyer to whom others asked the question:

  • “What made a huge difference was being asked if I was okay – simple as that.”

Not comfortable asking the question? That’s perfectly okay. Instead, get in touch with me or with Josh Simonds at the Vermont Lawyer Assistance Program.  Each of us has reached out to legal professionals after being asked by concerned colleagues to do so.  We keep it confidential and we offer help.[2]

Finally, I’ll reiterate a point that goes without saying: it’s critically important to help. As I’ve long argued, not only because it’s the right thing to do for a fellow human, but also because of the devasting impact unaddressed behavioral health issues can have on a lawyer, the lawyer’s clients, and the lawyer’s co-workers and family.

Behavioral health issues can lead to rules violations.  In 2015, the ABA Journal ran this article (subscription required) in which Patrick Krill, one of the country’s leading voices on improving the well-being of members of the legal profession, noted that between 40 and 70% of disciplinary and malpractice cases are rooted in substance abuse.

More recently, Ryan Little, a former disciplinary prosecutor who now advises lawyers on legal ethics and professional responsibility, used LinkedIn to remind lawyers that most disbarments result from “one or more of three avoidable missteps,” one of which Ryan describes as “ignored wellness issues.”  Ryan wrote:

  • “Mental health and substance abuse issues are significant factors in many attorney discipline cases. Often, the warning signs were there, but the lack of resources, intervention, and internal support led to career-ending consequences.”

Again, I understand the reluctance to get involved.  But back when I was jaundiced and had lost a ton of weight, you wouldn’t have thought twice about asking if I was okay.  Do the same for someone who is exhibiting the classic and easily recognized signs and symptoms of a behavioral health issue.  It could make a life-altering difference.

As always, let’s be careful out there.

[1] My post-Whipple GI system doesn’t exactly appreciate cheeseburgers. So, I tend to avoid them. But every now & then the craving reaches the point that it’s consequences be damned. Sometimes the small, short-lived victories are the most rewarding.

[2] I don’t know Josh’s numbers. However, since the Court created the Bar Assistance Program in 2021, I’ve received 66 informal referrals.  Some of those were self-referrals by lawyers seeking help.  Most, however, were from lawyers and judges concerned about a fellow member of the profession.

Prior Wellness Wednesday Posts

Additional Wellness Wednesday Posts