This article originally appeared in The Bar Examiner print edition, Summer/Fall 2021 (Vol. 90, Nos. 2–3), pp. 34–39.
By Hon. Paul Reiber and Bree Buchanan
In the Summer 2018 issue of the Bar Examiner, James C. Coyle encouraged the bar admissions community to play its part in the emerging well-being movement in the legal profession. He wrote of new studies showing disturbingly high rates of behavioral health problems—depression, anxiety, and substance use disorders—among law students and young lawyers. As a founding co-chair, he heralded the work of the recently formed National Task Force on Lawyer Well-Being (National Task Force) directed at stemming this problem and called on the Bar Examiner’s readers to join in the effort as essential stakeholders and allies.1 The summer of 2018 now seems distant and enviable in its relative simplicity.
Over the past year and a half, the COVID-19 pandemic, racial justice reckoning, and environmental disasters have dealt a devastating blow to the sense of normalcy and relative safety most law students and young lawyers have experienced in the United States. The stressors for new practitioners attempting to onboard into the profession have been high as courts limited operations, in-person meetings were constrained, and practices that were standard last year are no longer normal. Although technology helps to bridge the gap, virtual adaptations carry their own challenges. Any focus on well-being is a challenge, as many of the bar admissions constituents have simply been trying to survive the myriad and combined effects of 2020’s tumult—effects that have continued well into 2021.
The Pandemic and Increased Distress in Young Adults, Law Students, and Young Lawyers
Studies of the pandemic’s impact on members of the legal profession are scant at this time; however, surveys of young adults completed in the latter part of 2020 and early 2021 reveal a dire picture. Some identify the current behavioral health crisis as a second pandemic.2 A study conducted by the Center for Disease Control in June 2020 revealed that for young adults (ages 18–24),
- 62% reported suffering from an anxiety or depressive disorder, compared to 30.9% of all respondents;
- 46% reported suffering from a trauma- and stressor-related disorder related to COVID-19, as compared to 26.3% of all respondents; and
- 24.7% started or increased substance use to cope with the pandemic, as compared to 13.3% of all respondents.3
A Harvard-led consortium’s October 2020 research showed that 47.3% of young adults were experiencing at least moderate depressive symptoms. Most disturbingly, the rate of “thoughts of death and suicide” by young adults at that time had increased to 37% from a rate that typically hovers around 3.4%.4
For law students, the compounded crises have been exacerbated by upended routines for attending class, social isolation, and concerns about inequities when taking bar examinations, supporting themselves, finding postgraduation employment, and soul-crushing student debt. Expectations for future success have been dampened by news of the profession’s pay cuts, furloughs, and other personnel reductions. Tragically, stories of suicides have begun to emerge. Overall, the pandemic has been acting as an accelerant to the behavioral health problems experienced by our profession’s youngest members. For all lawyers, it brings new challenges to maintaining fitness to practice and basic competence, which includes the capacity to navigate the challenges and rigors of professional life.
A Call to the Profession to Respond
As these challenges are exacerbated through crises like the COVID-19 pandemic, our profession must respond accordingly to provide the structure and support necessary to help new lawyers develop resilience. This response also demands a fundamental shift in attitudes toward behavioral health problems, in general, and a willingness to seek timely treatment when needed. Particular attention must be paid to members of historically underrepresented groups who face heightened barriers to engaging in help-seeking behaviors.5
While addressing the diminished mental health of many in the legal profession has always been vital, this work has now taken on a renewed sense of urgency. In January 2021, founders of the National Task Force created the Institute for Well-Being in Law (IWIL, www.lawyerwellbeing.net), a nonprofit dedicated to advancing systemic change to improve the well-being of all members of the legal profession throughout all career stages. IWIL aims to accomplish much of this work alongside stakeholder groups, such as the courts, regulators, law schools, and legal employers. Given the formative impact that law school and the admissions process have on the profession, the bar admissions community continues to be a vital ally and stakeholder in the well-being movement.
IWIL Carries the Well-Being Torch Forward
Although IWIL is a new organization, its mission and work are a continuation of efforts begun by the National Task Force in 2016. A coalition of representatives from national law-related associations and other stakeholder groups, National Task Force members dedicated themselves to launching a culture change in how the legal profession impacts the well-being of all its members.6 By 2017, the committed group published a comprehensive report directed at the profession’s seven key stakeholder groups,7 setting out 44 recommendations for addressing commonly occurring behavioral health concerns and for providing improved well-being for law students, judges, and lawyers.
Within days of publishing The Path to Lawyer Well-Being: Practical Recommendations for Positive Change (“the Report”), the Conference of Chief Justices passed Resolution 6, stating its support of “the goals of reducing impairment and addictive behavior, and improving the well-being of lawyers,” and recommending “that each jurisdiction consider the recommendations of the Report.”8 Almost immediately after this endorsement, the American Bar Association (ABA) passed a similar Resolution at its 2017 Annual Meeting.9 Legal media coverage of the Report was extensive and laudatory.10
Believing the legal system to be a tipping point, the National Task Force saw the profession as becoming increasingly unsustainable for its members. To bring a sense of urgency to the work, drafters of the Report set out a strong case for why stakeholders should heed its recommendations. By effectively addressing impairments and promoting overall well-being, they posited, the profession’s leaders could improve professionalism, protect the public, and preserve the rule of law—while also enhancing both quality of life and profitability of law practice. Inspired by the World Health Organization, the Report went on to define lawyer well-being as “a continuous process whereby lawyers seek to thrive in each of the following areas: emotional health, occupational pursuits, creative or intellectual endeavors, sense of spirituality or greater purpose in life, physical health, and social connections.”11
Additionally, the Report set out a to-do list for each jurisdiction’s chief justice, encouraging them to gather leaders of all stakeholder groups for the purpose of reviewing the Report, assessing which recommendations should be implemented in their jurisdiction, and creating an action plan to do so. Evidencing this approach’s effectiveness, a total of 31 jurisdiction Supreme Courts and/or bars have created a multi-stakeholder well-being initiative since 2017.12
The profession-wide enthusiastic reception of the Report demonstrated the ongoing need for the National Task Force’s work. A nonprofit, IWIL’s mission is to work for the betterment of the legal profession by focusing on a holistic approach to well-being and leading a culture shift in law to establish health and well-being as centerpieces of professional success. The Institute intends to advance law’s well-being movement, achieving this goal through “advocacy, research, education, technical and resource support, and stakeholders’ partnerships.” Examples of ongoing work include putting on the annual Well-Being Week in Law, offering technical assistance and support of well-being task forces, publishing and supporting scholarship on the nexus of well-being and professional ethics, and other awareness-raising programming such as The Path to Well-Being in Law podcast.13
The Value of Systemic Change in Addressing the Well-Being Problem
While individuals can learn about myriad methods of improving their own well-being, the impact of such instruction is limited. For some, this individual-level approach may be counterproductive to the movement. The occasional complaint has been made to the effect of, “Why tell me to take better care of myself when I have an inhuman workload and never seem to have a moment for myself?” Indeed, recent research shows that lawyers’ greatest stressors are things over which individual lawyers have (or feel they have) little control: billable hour pressures, always being on call and unable to disconnect, lack of sleep, and client demands.14 For the many whose work engages with disturbing subject matter, vicarious trauma—caused by indirect exposure to someone else’s trauma—is also a major contributor to negative behavioral health effects.
At the outset, drafters of the Report—many of whom are now board members of the Institute—recognized that efforts to both ameliorate these stressors and create a well-being movement must be directed at the institutions and stakeholders that serve as the driving force behind the legal profession’s culture. The drafters reasoned that individuals already know of the imperative of eating healthy foods, exercising, and such, in order to be one’s best self. Essentially, for systemic change to occur, that change must originate with those possessing the authority to bring it about.
As future drivers of systemic change, the 31 multi-stakeholder task forces (also termed as “commissions” or “committees”) created since publication of the Report have tremendous potential to lead adoption of well-being policy initiatives. Each group may undertake work that will both promote well-being and prevent impairments in a manner that is tailored to their jurisdiction’s particular needs. Several have dedicated funds to having an employee of the court or bar whose duties are focused on this effort. Some efforts have resulted in a significant infusion of resources into their jurisdictions’ lawyers assistance program. Others have successfully sought qualification of well-being topics as a type of programming that fulfills continuing legal education (CLE) requirements. Another initiative with power to raise new awareness is to require proof of a limited number of hours of law school instruction in well-being and behavioral health disorders in order to become eligible to sit for the jurisdiction’s bar examination.
A Case Study for Systemic Change: Character and Fitness Questions
The power and efficacy of a systemic approach to improving well-being across the profession can be seen in recent efforts to amend character and fitness questions, a topic directly within the purview of bar admissions regulators. At their worst, these questions can severely impede help-seeking by law students faced with a mental health or substance use issue.15
For example, in a survey of law students conducted in 2014, of the 42% of respondents who felt they needed mental health assistance in the past year, only half sought treatment of any sort.16 Additionally, 49% indicated that if they had a drug or alcohol problem, their chances of being admitted to the bar would be better if they kept the problem hidden. When asked the same question regarding a mental health problem, 43% indicated that hiding their problem would improve their chances of bar admission. At the same time, 63% of respondents reported that the potential threat to bar admissions was a factor discouraging them from seeking services for substance use. When considered together, these concerning statistics shed light on the chilling effect that character and fitness questions can have on students when they weigh whether to seek professional behavioral health services.17
In 2014, the Department of Justice entered into a consent decree with Louisiana after investigating the policies and procedures under which Louisiana evaluated bar applicants with mental health conditions. The agreement prohibited Louisiana from making broad inquiries about mental health diagnoses or treatment, and only permitted questions about mental health conditions if the condition affected the applicant’s behavior and conduct in a way that “may otherwise warrant denial of admission.”18
Since the Department of Justice’s 2014 investigation in Louisiana and the resulting consent decree, numerous jurisdictions have either amended or removed their questions. This recent progress follows the ABA’s 2015 resolution calling for the elimination of questions that ask broadly about mental health history and instead focus narrowly on conduct and behavior,19 and the National Task Force Report’s recommendation to “re-evaluate bar application inquiries about mental health history,”20 which were echoed by the Conference of Chief Justices’ 2019 resolution.21 Many jurisdictions now include an explanatory preamble to these questions, clarifying the focus on conduct and behavior and stating that diagnosis or treatment alone does not provide a basis for rejection. Ideally, students in these jurisdictions will perceive less pressure to “go underground” with their behavioral health concerns, lowering the 43% statistic of students who believed they had a better chance of getting admitted to the bar if a mental health problem was hidden.22
While progress has been made, many jurisdictions maintain questions that delve into mental health conditions and details of treatment sought by applicants. Some have ineffectually responded to critiques by limiting the time frame of inquiry to two, three, or five years, a change that still has the effect of discouraging a law student from seeking assistance for a mental health condition they experienced as an undergraduate or a law student.23
We encourage jurisdictions to continue to evaluate these questions and consider whether they can be further amended or eliminated. Bar examiners play an integral role in protecting the public and must weigh the benefit of the information submitted in response to these questions against the harm possibly caused to applicants. By narrowly tailoring inquiries about mental health conditions, examiners can more effectively balance these concerns. With continued advocacy, in coordination with the 31 jurisdiction-level well-being task forces or committees, IWIL expects changes to the character and fitness process will serve to improve the mental health and well-being of students and, in so doing, of the future members of our profession.
The COVID-19 pandemic with its resulting crises has accelerated the need for system-wide initiatives, including within the bar admissions world. The struggle goes beyond individual predispositions to mental illness or addiction, for “there exists a strong correlation between the legal profession and lawyer distress that can no longer be ignored.”24 While well-being is an imperative, the responsibility for achieving it must not rest on the individual shoulders of each practitioner, especially those of law students and young lawyers.
Recently, the legal profession has begun working to end the stigma attached to mental health and substance abuse disorders (which inhibits help-seeking behavior) and to progress past a culture that dealt with these concerns only in crisis. As the profession improves its ability to assist those who are suffering, it must also look toward creating the structural change necessary to reduce the prevalence of these issues. Our overarching goal should be to shape a profession where new lawyers can thrive, and the humanity of all members is honored.
A focus on a healthy and fit bar contemplates fundamental change in the way that we think about the practice of law, but change is never easy. As the Report acknowledges, “change will require a wide-eyed and candid assessment of our members’ state of being, accompanied by courageous commitment to re-envisioning what it means to live the life of a lawyer.”25 IWIL welcomes as allies those who regulate admission to the bar in this vital work.
Hon. Paul Reiber is Chief Justice of the Vermont Supreme Court, Immediate Past President of the Conference of Chief Justices, and a member of the National Task Force on Lawyer Well-Being.
Bree Buchanan is the Board President of the Institute for Well-Being in Law, following service as a founding co-chair of the National Task Force on Lawyer Well-Being and author of its 2017 Report, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.
Justice Reiber thanks his law clerk Megan Noonan for her work on this article.
- James C. Coyle, “The Report of the National Task Force on Lawyer Well-Being and the Role of the Bar Admissions Community in the Lawyer Well-Being Movement,” 87(2) The Bar Examiner 8–16 (Summer 2018). At the time of authorship, Coyle, now retired, was Attorney Regulation Counsel for the Colorado Supreme Court and a founding co-chair of the National Task Force on Lawyer Well-Being. (Go back)
- Kristen R. Choi et al., “A Second Pandemic: Mental Health Spillover from the Novel Coronavirus (COVID-19),” 26(4) J. Am. Psychiatric Nurses Assoc. 340–43 (2020), available at https://journals.sagepub.com/doi/pdf/10.1177/1078390320919803. (Go back)
- Mark É. Czeisler et al., “Mental Health, Substance Use, and Suicidal Ideation during the COVID-19 Pandemic—United States, June 24–30, 2020,” 69(32) Morbidity & Mortality Wkly. Rep. 1049–57 (Aug. 14, 2020), available at https://www.cdc.gov/mmwr/volumes/69/wr/mm6932a1.htm?s_cid=mm6932a1. (Go back)
- Roy H. Perlis et al., “Report #23: Depression Among Young Adults,” COVID States Project at 5 (Nov. 2020), available at https://www.kateto.net/covid19/COVID19%20CONSORTIUM%20REPORT%2023%20MENTAL%20HEALTH%20NOV%202020.pdf. (Go back)
- These barriers include the “double stigma” of being a minority and struggling with well-being, pressure to be perfect (which can mean not admitting to needing help), and scarcity of culturally competent treatment resources, as well as cultural and familial stigma of mental health problems. (Go back)
- The law-related organizations include the National Organization of Bar Counsel, the Association of Professional Responsibility Lawyers, ABA’s Center for Professional Responsibility and its Commission on Lawyers Assistance Programs, the Conference of Chief Justices, the National Conference of Bar Examiners, the National Association of Law Student Affairs Professionals, the National Client Protection Organization, and the National Council of Lawyer Disciplinary Boards. Other stakeholder groups include the Attorneys’ Liability Assurance Society, researchers who conducted the lawyer and law student studies, and lawyer well-being experts. (Go back)
- Stakeholder groups addressed in the Report were the judiciary, regulators, law schools, legal employers, bar associations, malpractice carriers, and lawyer assistance programs. Report of the National Task Force on Lawyer Well-Being, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change [hereinafter “the Report”] (2017), available at https://lawyerwellbeing.net/wp-content/uploads/2017/11/Lawyer-Wellbeing-Report.pdf. (Go back)
- Conference of Chief Justices, Resolution 6 (Aug. 9, 2017), https://www.americanbar.org/content/dam/aba/administrative/lawyer_assistance/ls_colap_conference_of_chief_justices_resolution_6.pdf. (Go back)
- American Bar Association, Resolution 105 (2018), https://www.americanbar.org/content/dam/aba/administrative/lawyer_assistance/ls_colap_2018_hod_midyear_105.pdf. (Go back)
- A partial list of news coverage, journal articles, podcasts, CLE programs, etc., can be found at American Bar Association, Coverage of the Report, available at https://www.americanbar.org/groups/lawyer_assistance/task_force_report/ (last accessed Feb 12, 2021). (Go back)
- Institute for Well-Being in Law, https://lawyerwellbeing.net/, at 9 (last accessed Feb. 12, 2021). (Go back)
- An interactive map showing jurisdiction initiatives can be found at the bottom of the IWIL landing page at https://lawyerwellbeing.net/. (Go back)
- Information about the annual Well-Being Week in Law (held the first week of May) for organizations and individuals can be found at https://lawyerwellbeing.net/lawyer-well-being-week/. Episodes of IWIL’s podcast can be found at https://lawyerwellbeing.net/podcast/. (Go back)
- Dylan Jackson, “Law Firms Want to Improve Mental Health, but They’re ‘Failing to Take Preventative Action,’” Am. Lawyer (Apr. 27, 2020), available at https://www.law.com/americanlawyer/2020/04/27/law-firms-want-to-improve-mental-health-but-theyre-failing-to-take-preventative-action/ (quoting results from ALM Intelligence’s Mental Health and Substance Abuse Survey). (Go back)
- Many lawyers practice law very successfully while managing an anxiety disorder, a mood disorder, situational stressors, grief, or a mild to moderate substance use disorder. Other health conditions that could impact one’s ability to practice are not asked about, such as diabetes, heart disease, epilepsy, or cancer. A law student could, for example, seek treatment for diabetes without fear of having to disclose it as part of the bar admissions process. (Go back)
- Jerome M. Organ, David B. Jaffe, & Kathryn M. Bender, “Suffering in Silence: The Survey of Law Student Well-Being and the Reluctance of Law Students to Seek Help for Substance Use and Mental Health Concerns,” 66 J. Legal Educ. 116 (2016), at 138, available at https://jle.aals.org/home/vol66/iss1/13/. (Go back)
- David Jaffe & Janet Stearns, “Conduct Yourself Accordingly: Amending Bar Character and Fitness Questions to Promote Lawyer Well-Being,” 26(2) Professional Lawyer (Jan. 22, 2020), available at https://www.americanbar.org/groups/professional_responsibility/publications/professional_lawyer/26/2/conduct-yourselves-accordingly-amending-bar-character-and-fitness-questions-promote-lawyer-wellbeing/; Margaret Hannon and Scott Hiers, “Law Students, Law Schools Lead Efforts to Remove Mental Health Questions from Character & Fitness Equation,” Student Lawyer (Oct. 19, 2019), available at https://abaforlawstudents.com/2019/10/09/law-students-law-schools-mental-health-character-and-fitness/. (Go back)
- Settlement Agreement Between the United States of America and the Louisiana Supreme Court Under the Americans with Disabilities Act, available at https://www.ada.gov/louisiana-supreme-court_sa.htm. A more thorough exposition of the Department of Justice’s Consent Decree in Louisiana can be found in “Conduct Yourself Accordingly,” supra note 17. (Go back)
- Lorelei Laird, “Bar Licensing Groups Urged to Tread Carefully When Asking About Mental Health,” ABA Journal (Aug. 3, 2015), available at https://www.abajournal.com/news/article/house_urges_bar_licensing_groups_to_tread_carefully_when_asking_about_menta. (Go back)
- The Report, supra note 7, at 27. (Go back)
- See Conference of Chief Justices, Resolution 5 (Feb. 13, 2019), https://ccj.ncsc.org/__data/assets/pdf_file/0021/23484/02132019-determination-of-fitness-to-practice-law.pdf. (Go back)
- Suffering in Silence, supra note 16, at 142. (Go back)
- Many jurisdictions continue to use Question 30 (which inquires about condition or impairment) in the National Conference of Bar Examiner’s character questionnaire. The use of NCBE’s character questionnaire is set by preferences or procedures in the jurisdictions. Jurisdictions may request to have any question removed from their character applications. The full text of Question 30, including its preamble, reads as follows:
The purpose of this inquiry is to allow jurisdictions to determine the current fitness of an applicant to practice law. The mere fact of treatment, monitoring, or participation in a support group is not, in itself, a basis on which admission is denied; jurisdictions’ bar admission agencies routinely certify for admission individuals who demonstrate personal responsibility and maturity in dealing with fitness issues. The National Conference of Bar Examiners encourages applicants who may benefit from assistance to seek it.
Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) that in any way affects your ability to practice law in a competent, ethical, and professional manner?
Note: In this context, “currently” means recently enough that the condition or impairment could reasonably affect your ability to function as a lawyer.
If Yes, Are the limitations caused by your condition or impairment reduced or ameliorated because you receive ongoing treatment or because you participate in a monitoring or support program? (Go back)
- Jarrod F. Reich, “Capitalizing on Healthy Lawyers: The Business Case for Law Firms to Promote and Prioritize Lawyer Well-Being,” 65 Vill. L. Rev. 361, 374 (2020). (Go back)
- The Report, supra note 7. (Go back)
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