Conduct Yourselves Accordingly: Amending Bar Character and Fitness Questions to Promote Lawyer Well-Being

Abstract

A number of states have modified the questions on the Character and Fitness portion of their application for bar admission addressing an applicant’s substance use and mental health disorders. While some have eliminated the questions altogether, others continue to pose questions which authors and ABA members David Jaffe and Janet Stearns argue are overly broad and unnecessarily invasive. This article has been published in Vol. 26, no. 2 of the Center for Professional Responsibility’s magazine, The Professional Lawyer. Read the Jaffe and Stearns article, Conduct Yourselves Accordingly: Amending Bar Character and Fitness Questions To Promote Lawyer Well-Being, available here.

Citation
Jaffe, David and Stearns, Janet E., Conduct Yourselves Accordingly: Amending Bar Character and Fitness Questions to Promote Lawyer Well-Being (December 11, 2019).

Available from the SSRN site.

Law Society of New South Wales launches free legal assistance to those impacted by bushfires

The Law Society of New South Wales, in partnership with Legal Aid NSW, community legal centres,  Justice Connect and the NSW Bar Association has launched the NSW Government’s Disaster Response Legal Service, which will provide free legal assistance to those affected by the tragic bushfires in NSW.

Richard Harvey, the President of the Law Society said: “In this time of great tragedy, we need to do all we can, as members of the NSW community and the legal profession, to assist those impacted by the bushfires who have lost so much.”

The Law Society’s statement also noted that many solicitors in the region may have been affected by the fires, and noted that the Law Society in partnership with Lawcover could assist in:

  • Trust accounting;
  • Professional support for loss of files; and
  • Professional support in costs, ethics and regulatory compliance for any affected legal practice, as well as any wellbeing issues that may arise.

The President’s full statement is available here. Full information about the response efforts is available here.

ABA releases annual profile of the legal profession

The American Bar Association has published its annual profile of the legal profession in the US. The report uses the data gathered over the course of the year to analyse changes and developments in the profession across the country.

Subjects covered include women and minorities in the profession, legal technology, pro bono, pay, legal education, lawyer wellbeing and lawyer discipline.

The link to download the full report is available here.

Colorado Lawyer Self-Assessment Program yields analytical insights

Colorado Supreme Court Office of Attorney Regulation Counsel started developing its lawyer self-assessment program more than two years ago, immediately after a seminal workshop on proactive, risk-based regulation at the 41st ABA National Conference of Professional Responsibility in May 2015. The new resource is a leading facet of a larger shift toward proactive management-based regulation, which aims to help lawyers practice ethically and soundly in the first place, rather than just reactively imposing discipline after lawyers make mistakes.

The new system provides the regulatory team with real time stats on lawyer engagement and self-assessed professional performance. It highlights the professional objectives scoring the highest and lowest across all respondents, providing the team with evidence to support further educational program development. The platform also has the ability to create customized lists of continuing legal education (CLE) resources based on each respondent’s own personal benchmarks and areas of need. These lists make yearly CLE planning fast and easy for lawyers, and keeps them focused on the most effective resources for their needs.

Jon White, staff attorney at the regulator, writes “The practice of law will always be challenging. The “ounce of prevention is worth a pound of cure” approach of the proactive practice program seeks to reduce some of that stress. The self-assessments give lawyers the blueprint to build an ethical infrastructure. Lawyers, in turn, benefit from enhanced peace of mind. Clients benefit from exceptional service. It is a win-win for all.” The insights generated by the program’s data is informing the regulator where practitioners need more assistance, and where there may be weaker points in the sector as a whole. Staying ahead of this issues protects the public and strengthens the jurisdiction as a whole.

Read more about Colorado’s Lawyer Self-Assessment Program Here

 

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An Australian Study on Lawyer Vulnerability & Legal Misconduct

Vulnerability to Legal Misconduct: Qualitative Study of Regulatory Decisions Involving Problem Lawyers and Their Clients

An emerging body of scholarship discusses ‘vulnerability’ as an antecedent of legal misconduct. One conceptualization of vulnerability indicates that an individual has greater susceptibility to risk of harm, and safeguards may protect against that risk of harm. This empirical study adds to the normative research with a qualitative analysis of 72 lawyers with multiple complaints and at least one hearing, paid financial misconduct claim, or striking from the roll (“problem lawyers”) in Victoria, Australia, between 2005 and 2015 through 311 regulatory decisions. We found that problem lawyers were disproportionately likely to be male, over age 45, and work in a sole or small practice. A quarter of these lawyers suffered from health impairments and among the clients harmed, half had cognitive impairments, were older age, or non-native English speakers. These findings underscore the need to better understand vulnerabilities to promote lawyer well-being, protect exposed clients, and reduce lapses in professionalism.

Access Full Report Here

Authors: 

  • Tara Sklar, University of Arizona – James E. Rogers College of Law
  • Jennifer Schulz Moore, University of New South Wales (UNSW) – Faculty of Law
  • Yamna Taouk, Melbourne School of Population and Global Health
  • Marie M Bismark, University of Melbourne
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Australian Legal Profession and the #MeToo Movement

Following the spread of the #MeToo movement to every industry around the globe, the Australian legal profession is taking a particular strong stand. The country’s defamation laws are notoriously difficult to pursue and are poorly equipped to handle a digital landscape. Solicitors and commentators alike have been quick to comment that these defamation laws are failing women who want to come forward.

Young lawyers have also been quick to point out that sexual harassment is prevalent in their own profession. In 2013, the Law Council of Australia’s National Attrition and Re-Engagement Survey found almost one in four female lawyers experienced sexual harassment. It has been working with the International Bar Association on a global survey of the legal profession to uncover the extent of sexual harassment. “We take it very, very seriously indeed. We are by no means in no state of denial. We recognise that we have a problem and there are many of us determined to stamp it out,” said Morry Bailes, the president of the council.

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High Court Sends Back Bar Membership Row

The U.S. Supreme Court sent back a case challenging a nearly 30-year-old precedent allowing mandatory bar membership.

The case took aim at the county’s first mandatory bar, North Dakota’s, which required membership in the state’s bar association as a condition to practice law as early as 1921, according to the American Bar Association.

Although the state with the most lawyers as of 2017—New York—still has voluntary membership, 37 other U.S. jurisdictions have “unified” or “integrated” bars, which require bar membership, according to ABA statistics.

Arnold Fleck, a North Dakota lawyer, says the requirement violates his First Amendment rights. He asked the court to overturn a nearly 30-year-old precedent holding otherwise.

The Supreme Court said in 1990 that mandatory membership schemes pass constitutional muster so long as they don’t require members to “finance political and ideological activities with which” an attorney disagrees.

Read the full article from Bloomberg Here

Case: Fleck vs. Wetch

Report from the National Task Force on Lawyer Well-Being

A coalition of groups, including the American Bar Association Commission on Lawyer Assistance Programs, have released a comprehensive report, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, aimed at addressing the problem of substance use and mental health disorders of lawyers.

The report, by the National Task Force on Lawyer Well-Being, includes several dozen recommendations and represents the most ambitious roadmap yet related to the well-being of lawyers. It is intended to spark a broader conversation in the legal profession regarding reasons behind substance use disorders as well as the effects of impairment to guide policy changes and to lead to a cultural shift within the profession.

Last week, the Conference of Chief Justices, which participated in the development of the report, gave the recommendations its endorsement. Other groups involved in the drafting of the task force report were the National Organization of Bar Counsel, the Association of Professional Responsibility Lawyers and the National Conference of Bar Examiners.

This report’s recommendations focus on five central themes:

  • Identifying stakeholders and the role each can play in reducing the level of toxicity in the legal profession.
  • Eliminating the stigma associated with help-seeking behaviors.
  • Emphasizing that well-being is an indispensable part of a lawyer’s duty of competence.
  • Educating lawyers, judges and law students on lawyer well-being issues.
  • Taking small, incremental steps to change how law is practiced and how lawyers are regulated to instill greater well-being in the profession.

Link to the full report

ICLR 2017 – Panel: “Overcoming Stigma”

A synopsis of panel session 4, which takes place on 5 October at ICLR Singapore, kindly provided by the session’s moderator, Tracy Kepler. Conference materials will be made available to ICLR.net members after the conference.

Moderator: Tracy L. Kepler, Director, ABA Center for Professional Responsibility

Panelists:
Kuah Boon Theng – Vice-President of the Law Society of Singapore
Dr. Munidasa Winslow, MBBS, M.Med. (Psych), CMAC, CCS, FAMS – Executive Director of Promise Heathcare Pte, Ltd. Singapore
James C. Coyle, Attorney Regulation Counsel of the Colorado Supreme Court
Marian DeSouza, Executive Director of the Alberta Lawyers’ Assistance Society

Substance abuse and mental illness can affect any attorney regardless of gender, culture, ethnicity, age or socioeconomic status. But no matter what their background, attorneys dealing with these issues seem to suffer in silence. Why? Stigma – cultural prejudice and discrimination that labels an individual suffering from such illnesses as defective, or weak, oft-times have more damaging consequences than the illness itself and create a barrier to treatment. Through our discussion, the panelists will define the stigma, explain the reasons why stigma is so pervasive in the legal profession, and why it is critical to overcome these beliefs and identify effective means to ameliorate stigma and replace its effects with affirming attitudes for recovery. The discussion will focus on several different “life stages” of an attorney – law students, practicing attorneys, and judges, as well as unique challenges faced by under-represented minorities, and how stigma affects each group. The panelists will also identify practical and applicable ways to conquer stigma in the legal community as well as during the regulatory process, and discuss various regulatory efforts and objectives centered on increasing the wellbeing of our profession.

Why is this session of particular interest and to whom?

Everyone is effected by this issue – whether they recognize it openly or not.  One challenge for this session (and others) will be how to ensure the session resonates with both western and non-western regulators who have different cultural and societal backgrounds.  Attorney wellness cuts across all countries, but the nature and intensity of the problems likely differ, and stigma is an even larger issue in more traditional cultures.  We hope to engage all participants in the dialogue to learn the different and cultural differences in the way mental illness and substance abuse is perceived in the legal community.

One reason this is a hot topic at the moment is that globally, organizations are realizing that attorneys are suffering in silence, statistics reflect higher rates of alcohol/substance abuse/mental health problems among the attorney population, and these high rates are not sustainable or conducive to a spirit of wellbeing.  Research has shown that the two most common barriers to seeking treatment that lawyers reported were not wanting others to find out they needed help and concerns regarding privacy or confidentiality.

What particularly do you hope to explore in this session?

We hope to start at the beginning with a definition – The Oxford English dictionary defines stigma as “a mark of disgrace associated with a particular circumstance, quality, or person”.  But it is really more pervasive and goes deeper – it sets a person apart, makes them part of “the other.”
When people are labelled by their illness, they then are seen by others as part of a stereotyped group.

  • Stigma is about beliefs and attitudes – often derived from the media or those around us.
  • Stigma is based on negative views of people simply because they are seen as belonging to a particular group.
  • Stigma often results in fear of members of the stigmatised group (often based on ignorance and lack of understanding).

Negative attitudes also create prejudice which then leads to negative actions and often discrimination.  We hope to explore the various components of stigma such as Labelling, Discriminating, Prejudice, Ignorance, Stereotyping, and Devaluing.  And stigma brings with it experiences and feelings of shame, blame, hopelessness, distress, and most importantly for our purpose at this conference – reluctance to seek and/or accept necessary help.

What do you hope to achieve with this session?

  • To discuss and provide concrete examples of ways of combatting stigma that are nuanced, will be geographically and culturally sensitive so that they are effective.
  • To discuss and determine the effectiveness of certain resources, such as support groups, education, sharing stories, amelioration not reduction, a focus on wellness, outreach, finding ways to combat stigma by creating opportunities for open dialogue
  • To share and educate that language/semantics matter – substance use disorder v. substance abuse, i.e., when someone has bulimia, we speak about an “eating disorder,” not a “food abuse” problem – and start to dispel the lingering belief that addiction is a moral failure rather than an illness.

Useful documents/background reading for context

Online articles:

‘A culture of fear’: Legal Futures

‘JLD resilience and wellbeing report’: Law Society of England and Wales

‘Solving the Stigma of Lawyer Mental Health’: 2Civility

‘A Lawyer Breaks the Silence About Depression Among Lawyers’: Everyday Health

‘What We Can Learn About The Stigma Of Mental Illness From Susan Hawk’: Texas Monthly

‘Some Law Firms Try To ‘Eliminate Stigma’ From Attorneys Struggling With Mental-Health Issues’: Above the Law

Further reading:

  1. W. Britt, T. M. Greene-Shortridge, S. Brink, Q. B. Nguyen, J. Rath, A. L. Cox, C. W. Hoge, C. A. Castro, Perceived Stigma and Barriers to Care for Psychological Treatment: Implications for Reactions to Stressors in Different Contexts, 27 J. Soc. & Clinical Psychol. 317 (2008);
  2. Ey, K. R. Henning, & D. L. Shaw, Attitudes and Factors Related to Seeking Mental Health Treatment among Medical and Dental Students, 14 J. C. Student Psychotherapy 23 (2000);
  3. S. E. Hanisch, C. D. Twomey, A. H. Szeto, U. W. Birner, D. Nowak, & C. Sabariego, The Effectiveness of Interventions Targeting the Stigma of Mental Illness at the Workplace: A Systematic Review, 16 BMC Psychiatry 1 (2016);
  4. K. S. Jennings, J. H. Cheung, T. W. Britt, K. N. Goguen, S. M. Jeffirs, A. L. Peasley, & A. C. Lee, How Are Perceived Stigma, Self-Stigma, and Self-Reliance Related to Treatment-Seeking? A Three-Path Model, 38 Psychiatric Rehabilitation J. 109 (2015);
  5. N. G. Wade, D. L. Vogel, P. Armistead-Jehle, S. S. Meit, P. J. Heath, H. A. Strass, Modeling Stigma, Help-Seeking Attitudes, and Intentions to Seek Behavioral Healthcare in a Clinical Military Sample, 38 Psychiatric Rehabilitation J. 135 (2015).
  6. P. W. Corrigan, S. B. Morris, P. J. Michaels, J. D. Rafacz, & N. Rüsch, Challenging the Public Stigma of Mental Illness: a Meta-Analysis of Outcome Studies, 63 Psychiatric Serv. 963 (2012).