Competency Issues: Having “The Talk”

By Michelle Harmon, LCSW, LAP Program Supervisor

It is now common knowledge that law students and licensed attorneys suffer from mental health and substance use problems at greater rates than the general population.^{[1, 2, 3]} This recognition has prompted the State Bar of California to require all attorneys admitted after February 1, 2018, to undergo 1.5 hours of education on substance use and mental health disorders within their first year of licensure in addition to the long-standing requirement to obtain an additional hour of education on Competency Issues during each subsequent renewal cycle.^[4]

The State Bar’s Lawyer Assistance Program (LAP) conducts a free seminar on the topic of substance use and mental health problems in the legal field at least weekly for bar associations, law firms, law schools, or other entities. A significant portion of the presentation outlines how to recognize signs and symptoms of mental health and substance use problems in yourself and others. Social withdrawal, missed appointments, decreased work performance, and changes in overall mood or appearance are among the most commonly noticed behaviors that alert coworkers to an attorney’s struggle. The program concludes with a question-and-answer period, and week after week, some version of the same question is asked: “I work with an attorney who I think has depression—or an alcohol problem—or is using drugs. What should I do?”

There is no one right answer to this question. It is likely that what you want to do will be different depending on your relationship with the attorney who is suffering. For example, is this person a coworker, manager, or opposing counsel? In some cases, you might have ethical obligations to a shared client, or you might be dependent on this attorney for your livelihood. The suggestions below do not offer legal or ethical advice, nor do they replace consultation with a medical professional about any specific problem.^[5] However, they provide a road map for you to follow as you consider how to approach a difficult conversation with a colleague that could potentially save their career or even their life. 

• Think about what structure might already exist to support you. Does your firm have an established policy that you should follow? Many firms, both large and small, are now developing mental health support structures, such as a Well-being Program, or may have specific HR staff who are trained to manage mental health crises or intervene with employees whose drug or alcohol use is affecting their work. 

• Plan in advance. Think of specific events that you want to discuss, rather than general behaviors. Be prepared to point out facts without assigning a label as to why the behavior occurred. For example, you would say, “I notice you didn’t bring the correct brief with you the last three times we went to court,” as opposed to, “You are always unprepared—are you hungover?” 

• Before approaching someone else, analyze your own biases and stereotypes about mental health problems. Your values and fears will show through your words, tone of voice, facial expressions, and body language. Will you unintentionally convey that you think the other person is weak, immoral, or dangerous? Similarly, many of us were raised with the message that it is impolite or intrusive to discuss certain topics. Your discomfort with the topic might be perceived as judgmental or shaming. Use your support system to practice ahead of time so you will be more comfortable talking about awkward topics. 

• Prepare to have resources at your fingertips. Bring a couple of phone numbers or links to relevant websites with you in case you need to contact someone immediately. For example, it may be helpful to have your firm’s EAP contact, the Lawyer Assistance Program number (1-877-LAP-4-HELP), the National Suicide Prevention Lifeline (1-800-273-8255), and any other contacts you may have in mind. 

• Consider the surroundings. Choose a place and time when you are unlikely to be interrupted. Respect the other person’s privacy by not confronting them in public. Similarly, don’t “gang up” on an individual with a group of coworkers—even ones with good intentions. Although you might feel more comfortable and supported with other people who share your concerns, that approach is more likely to put the other person on the defensive. 

• Beware of leading questions. Attorneys know how to ask questions to get the answers they want (or don’t want)! For example, “You’re not thinking of hurting yourself, are you?” may elicit a different answer than “Are you thinking about killing yourself?” 

• Listen. A simple way to let someone know that you are hearing them is to reiterate their words or the meaning of what they are saying. For example: “I’ve just got a million things on my plate, so I wake up at night thinking about work, and I can’t go back to sleep” can be met with “You have so much going on; that sounds exhausting!” Active listening of this type can reduce confrontation during a conversation, establish trust, and build rapport. 

• Be prepared for defensiveness, and don’t take it personally. It’s possible that the person to whom you are talking is not ready to deal with their problems and may find it extremely threatening that you have noticed their struggles. The person may deny everything or tell you that you are the one with the problem. End the conversation politely. You never know what seeds you have planted or when they will sprout.

Finally, it may be extremely uncomfortable for both of you to have a conversation of this nature with someone who may be in denial about the problem or who is terrified of damaging a professional reputation, and it may permanently alter your relationship. If you decide that you are not ready to approach the attorney, there are resources that can help. Please consider contacting the Lawyer Assistance Program. The LAP’s mission is to support attorneys with mental health and substance use problems. One of the LAP’s licensed mental health professionals will reach out to let the attorney know that someone has a concern and will offer resources. If you choose to contact the LAP with your concerns, your identity will be kept confidential, or you may simply remain anonymous. Any information obtained by the LAP is confidential and under state law cannot be disclosed as part of a civil proceeding, a disciplinary proceeding, or a public records request. 

The LAP can be reached at: LAP@calbar.ca.gov or 1-877-LAP-4-HELP.

[1] Patrick R. Krill, Ryan Johnson, and Linda Albert, “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys,” Journal of Addiction Medicine 10, no. 1 (2016): 46–52. https://doi.org/10.1097/adm.0000000000000182.

[2] Jerome M. Organ, David B. Jaffe, and Katherine 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,” Journal of Legal Education 66, no. 1 (2016): 116–156, https://www.jstor.org/stable/26402424.

[3] Cristina Violante, “Law360’s 2016 Lawyer Satisfaction Survey: By The Numbers,” Law360, September 2, 2016, https://www.law360.com/articles/833246/law360-s-2016-lawyer-satisfaction-survey-by-the-numbers.

[4] The “Competency” requirement was formerly known as the “Detection/Prevention of Substance Abuse” MCLE requirement.

[5] All content in this article is for informational purposes only. The content/article is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider/mental health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read in this article. Nothing in this article should be read as a recommendation or endorsement of any products, procedures, opinions, or other information that may be mentioned.