Introduction.
In 2017, the American Bar Association helped sponsor a National Task Force on Lawyer Well-Being, which issued an important report, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.
Many states have long had programs to aid lawyers in difficulty, from depression to substance abuse, or worse, known as Lawyer Assistance Programs. The Task Force Report went beyond that to include a broader definition of attorney well-being, prompting many of these same states to expand their focus. In that regard, it may be useful to revisit the definition of well-being as framed by the National Task Force:
We 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 and greater purpose in life, physical health, and social connections with others. Lawyer well-being is part of the lawyer’s ethical duty of competence. It includes a lawyer’s duty to make healthy, positive work-life choices…and maintaining their own long-term well-being.
What is important about this statement is that it implies that wellness and well-being are not the same, and that responding to the distress of lawyers is necessary but not sufficient. Lawyers can do their best for others when they are at their best. Indeed, as quoted above, the National Task Force Report argued that well-being should be considered part of competent representation.
Since the original Task Force Report, the ABA has been active in promoting well-being. These initiatives included conducting its first Well-Being Week in May 2020, urging law firms and law schools to adopt a well-being pledge, and devoting an annual issue of Law Practice Today like this one specifically to this topic, among other initiatives.
However, not all lawyers are members of the ABA. It is with these lawyers in particular where state courts and bar associations—some voluntary, some required—are beginning to play their own important role.
Justice Louis Brandeis once wrote, “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262 (1932, Brandeis, J., Dissenting). That opportunity for positive experimentation can also occur through initiatives by the bench and bar in different states, as this article explores.
Readers are encouraged to view the table appended to this article which has links to resources available as of this writing. Because much of the important early work in this area began with concerns for the wellness of lawyers, but now expanded to include well-being, the table has been organized into two columns, with the sites related to wellness in the first column and sites related to well-being in the second, though often there is no bright line between the two. In many cases, some information is added to the links provided.
Also, because websites are often rebuilt or modified, the table includes permalinks to enable seeing what is available at the time this article was written, at the end of 2020. Readers are encouraged, however, to conduct their own searches, as this is a fast-moving field where new information and resources are being added all the time.
Aside from the table, it is important to note that the National Task Force on Lawyer Well-being has now been reconstituted as the Institute for Well-Being in Law. As of December 2020, it is an IRC 501(c)(3) charitable organization separate from the ABA. The institute maintains an interactive map that provides easily accessible information for each state. It is an important resource with which to begin, especially as it continues to be updated.
In the meantime, it may be helpful to look at one jurisdiction in particular, Massachusetts, as it is a state with voluntary bar associations and only a limited continuing education requirement.
Under the leadership of the late Chief Justice Ralph Gants, the Massachusetts Supreme Judicial Court established a Steering Committee on Lawyer Well-Being, which issued a comprehensive report in 2019. Then, in early 2020, in response to that report, the court established a new Standing Committee on Lawyer Well-Being charged with implementing the report’s various recommendations.
In addition to the committee’s original well-being goals, it had to respond to the many challenges created by the COVID-19 pandemic. It also added a renewed emphasis on diversity, equity, and inclusion (DEI) to respond to the concerns about the adverse treatment of legal professionals from underrepresented groups that have historically faced discrimination, itself negatively affecting the well-being of those professionals.
Here is some of the committee’s work so far to establish systems to increase awareness of well-being issues, reduce stigma connected to help-seeking behaviors, and enhance resources to help lawyers thrive. Aided by many numerous internal and external subcommittees and working groups, the committee is undertaking a variety of activities, such as:
- Launching a website and a newsletter to provide updates, resources, and a central repository on lawyer well-being topics. (Go to https://lawyerwellbeingma.org/contact to sign up);
- Hosting town hall/listening sessions with seven Massachusetts affinity bar associations, where members shared their lived experiences of the current state of DEI in the Massachusetts bar and how those experiences have affected their and their colleagues’ well-being;
- Adding a full-time fellow, Gavin Alexander (gavin@lawyerwellbeingma.org) to support the overall work of the committee and focus on the intersection of DEI and well-being, including a Standing Committee Statement;
- Drafting and advocating for approval of a revision to the SJC Rules requiring that every lawyer in Massachusetts complete an anonymous and confidential Attorney Demographic and Law Practice Survey as part of their annual registration process, to allow the committee to measure and track various forms of diversity in the Massachusetts bar;
- Launching a Massachusetts Legal Well-Being Network for pioneers, stakeholders, and advocates in legal practice, human resources, and education to share best practices, ideas, challenges, and visions to improve lawyer well-being;
- Identifying, establishing, administering, and evaluating various mentorship programs, and beginning development of a new statewide mentorship program in collaboration with statewide, county, city, and affinity bar associations;
- Beginning to gather information and create a publicly available central database of all non-employer-specific legal mentorship programs in Massachusetts;
- Administering and evaluating loan assistance, education, and coaching pilot program to help alleviate the stress connected to student loans and drafting a letter to President-Elect Biden’s transition team requesting an expansion of Public Service Loan Forgiveness eligibility for certain Massachusetts private attorneys who perform public service work full-time;
- Engaging a team of researchers to conduct a large-scale study and needs assessment of Massachusetts lawyers and law students; and
- Collaborating with the Massachusetts Bar Association to develop a resource toolkit for county bar associations to incorporate well-being initiatives and programming, and assembling a working group of current law students, law professors, and law school administrators to develop a toolkit to improve well-being among law school communities through individual and organizational change.
Other states have also been active. For example, extensive court or bar-related reports about lawyer well-being have been done in Arkansas, New York, Utah, Vermont, and Virginia, and the full texts are compiled by the Institute for Well-being in Law.
Of particular interest is a subsequent study of a representative sample of Utah lawyers by an occupational epidemiologist, Matthew S. Thiese, Ph.D. A summary was published in 2020 in the Utah Bar Journal, The Utah Lawyer Well-being Study: Preliminary Results Show Utah Lawyers at Risk.
Dr. Thiese reported that the purpose was to find out if the Utah Bar resembled its national counterparts, and in light of that data, “foster education and interventions aimed at increasing lawyer well-being.”
The study is sobering, in that slightly less than half the respondents reported feelings of depression (44.4%) or some level of burnout (48.7%), and a tenth (10.5%) reporting prior drug abuse. Of particular concern is that Utah lawyers reported 8.5 times the level of the general population in suicidal ideation, “an odds ratio on par with the risk of lung cancer among smokers.” On the other hand, a majority of participating attorneys also reported having a moderate (46%) or high (46%) level of job satisfaction.
Dr. Thiese cautioned that his study was still ongoing to determine what elements in the practice of law in Utah are either contributing to or harming lawyer well-being, and what targeted interventions might “help improve attorneys’ mental well-being and have a subsequent impact on their productivity.”
While stressing that the results are preliminary, some of the aspects of their job that were reported by Utah lawyers as preventing them from doing well or thriving at their job were actions of other attorneys at their firm, billable hour requirements, client stress/pressure, frustrations with opposing counsel, and inflexible court deadlines.
When the Utah lawyers were asked to report what aspects of their job helped them to do well or thrive at work, the top four were collaboration/enjoy working with others; creativity/intellectual challenge; flexible work schedule, ability to do other things; and knowing that my contributions are valued.
While not final, the Utah study helps bring the well-being dimension, as well as the wellness dimension, of lawyers into public view, demonstrating that it is possible to study both what is not working for lawyers and what helps them thrive.
Collectively and individually, these resources for attorney well-being being developed by the bench and bar from different states offer hope that that attorneys from other jurisdictions can learn how to do better for their clients and themselves, with positive impacts on the timely, wise, and fair administration of justice that is the responsibility of the legal profession in all its roles.
About the Author
Lisle Baker (lbaker@suffolk.edu), is a law professor at Suffolk University Law School in Boston, MA, where he teaches a course in Positive Psychology for Lawyers, described in his article, Designing a Positive Psychology Course for Lawyers. He gratefully acknowledges the help of Peter J. Scanlon ‘22, a student at Suffolk Law School, and AnnaKatherine Wherren, a reference librarian at Suffolk Law School, in the preparation of this article.