Addressing Lawyer Mental Wellness at the Virginia Bar

Episode Notes

Transcript

The Digital Edge

Addressing Lawyer Mental Wellness at the Virginia Bar

07/31/2018

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Intro: Welcome to The Digital Edge with Sharon Nelson and Jim Calloway, your hosts, both legal technologists, authors and lecturers, invite industry professionals to discuss a new topic related to lawyers and technology. You are listening to Legal Talk Network.

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Sharon D. Nelson: Welcome to the 127th edition of The Digital Edge: Lawyers and Technology. We are glad to have you with us.

I am Sharon Nelson, President of Sensei Enterprises, an information technology, cybersecurity and digital forensics firm in Fairfax, Virginia.

Jim Calloway: And I am Jim Calloway, Director of The Oklahoma Bar Association’s Management Assistance Program. Today, our topic is “Attorney Wellness Addressing the Crisis”.

Sharon D. Nelson: Before we get started we would like to thank our sponsors.

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We are very pleased to have as our guest Len Heath. Len is a partner in the firm of Heath, Overbey, Verser & Old, P.L.C., located in Newport News, Virginia. Len has extensive experience in trying cases across Virginia in both State and Federal courts. He currently serves as President of the Virginia State Bar and as President he has promised to focus on lawyer wellness.

Thanks for joining us today, Len.

Len Heath: Thanks for having me Jim and Sharon. I look forward to the discussion today on this very important topic.

Sharon D. Nelson: Well, the first thing Len, congratulations on becoming the President of the Virginia State Bar last month.

Len Heath: Thank you very much.

Sharon D. Nelson: I heard you say in your wonderful remarks the night you were sworn in, that you are going to focus on attorney wellness, can you tell us why that became such a personal and primary goal for you?

Len Heath: Well, Sharon I started practicing in 1986 at a firm in Norfolk. I mean if you took a snapshot of that firm one year after I started in 1987, they had 25 attorneys. Now I left that firm in 1991. If you fast forward to today of those 25 attorneys in 1987, of those 25 two have committed suicide and that’s 8%, and the folks that have taken their lives were not only excellent lawyers but they were very good friends and when those events occurred everybody was left wondering how that came about and it shocked everyone.

So when you start with a background with those types of statistics, you take these things very, very seriously. So when wellness kind of percolated to the top of the discussion in the legal community, it was a topic that I wanted to carry the banner on.

Jim Calloway: Len, are there some statistics you can share with us about the number of attorneys who self admit that they have problems with alcohol, drugs or mental illness?

Len Heath: Yes, there actually a number of studies that have come out. The one that’s talked about probably the most is one that came out in 2016. There was a study that was performed by the ABA Commission on Lawyer Assistant Programs and the Hazelden Betty Ford Foundation, and that was a study of nearly 13,000 currently practicing lawyers and the statistics that came out of that study were pretty eye popping.

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Anywhere from 21% to 36% of attorneys fell into classification of problem drinkers, 28% reported some form of depression, 19% reported some form of anxiety, 23% had elevated stress and 25% reported elements of work addiction. In addition to that, our profession just has a suicide rate that’s out of proportion with the public.

Sharon D. Nelson: It’s scary stuff. I am so glad the Virginia State Bar is taking a look at this and I know you know that some years ago, I wrote an article for the State Bar on Lawyers Helping Lawyers and in the process of interviewing folks who had been through the program, I can’t tell you how many of them were crying on the phone, I can’t tell you how I was dabbing at my eyes. It’s really tough what some of these people have been through. So I’m glad we’re working to help them.

What I’d like to talk about now or have you talk about is how the ABA is managing this issue? What is it done? What is it doing and then we will get back to Virginia?

Len Heath: Well, probably first and foremost, after this study in 2017, in August of last year, really a Landmark Report was put out it’s the National Task Force on lawyer well-being, and the subtitle is creating a movement to improve well-being in the legal profession. And it is a report that really evaluates all aspects of the legal community from people in government regulators to private practice even law schools and it really is a clarion call for the profession overall to perform a critical self-evaluation of what is going on in the profession.

Amazingly, I saw a report that said that some of these mental health issues started to arise as early as the second year of law school. So when you hear that, it’s something that really gets your attention. In addition to that Landmark Report and I think most people by now are familiar with it, at the Vancouver Session of the ABA Resolution 105 was approved and that resolution supports the goal of reducing mental health and substance use disorders and improving the well-being of lawyers, judges, and law students and urges stakeholders within the legal profession to consider the recommendations set out in that Landmark Report.

And probably the most important thing that the American Bar Association is doing at this time is promoting the discussion of wellness and getting the information out, if you go to any of their web sites, they just have huge libraries of information on wellness and keep in mind, wellness is one of those topics that it’s not one size fits all.

It impacts people in different ways and so, there are different ways to address it. And so, again the ABA is putting out great information to promote that discussion on wellness.

Jim Calloway: What about the Virginia Supreme Court? Has it also embraced the need to address Lawyer wellness?

Len Heath: Well one of the co-authors of the Landmark Report was our own Chief Justice Lemons and we were very proud of that fact and he is, not only our Chief Justice, but he is a friend and advocate of our profession. He is someone who really promotes professionalism and at this point, taking the lead also on wellness. So it’s always good to have that leadership from the top.

As a part of that, he has appointed a Special Wellness Committee that consists of 16 leading attorneys in the state to study wellness initiatives within the Commonwealth of Virginia and that particular panel is being chaired by Justice William Mims. We expect to have a report out of that committee in the next few months and hopefully, we will have good initiatives coming out as a result of that.

Jim Calloway: Before we move on to our next segment. Let’s take a quick commercial break.

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Sharon D. Nelson: Welcome back to The Digital Edge on the Legal Talk Network. Today, our subject is Attorney Wellness Addressing the Crisis, and our guest is Len Heath, a partner in the firm of Heath, Overbey, Verser & Old, P.L.C., located in Newport News, Virginia. And Len is also the President of the Virginia State Bar now.

Len, why do you think it is that lawyers have so many wellness issues or maybe to put it another way, is practicing law bad for your health?

Len Heath: Well, that’s an interesting question and I guess the answer is it can be. The problem that we have right now is that we don’t really fully understand the issue and that’s why the discussion and the education is so important and I use two analogies when I’m talking about this particular topic.

The first is the NFL. For years, we watched players in the NFL play hard football and the best plays were considered those that were hard-hitting and bell ringers, and we gave great applause to people who would stay in the game, and then we discovered this little thing called chronic traumatic encephalopathy, CTE, and with that, we then understood well wait a second, repeated blows to the head is not a good thing. And as a result, the NFL has changed some of its rules and we’re studying how to make the game as safe as possible.

The other analogy I use it comes from my own experience and that of roofing. My father is fond of saying he put me on the roof young and made a good lawyer out of me, because he was a roofer. Well, he did put me on the roof young and when I worked with him when I was in my teens, the first thing that he did or any of the employees there that were working with me, they would teach me the safety aspects of it.

So I learned how to set up a ladder correctly, how to climb it correctly, how to get off of it correctly, how to get down from it correctly. Any piece of equipment that I used I was taught safety features and how to use and how not to use it.

Compare that with law. Once people graduate from law school and they pass the bar exam, we pretty much say have at it, and we don’t explain to them the problems that can arise with our own practice and I can get to some of those details a little bit more detail as we move forward.

Jim Calloway: Len, we’ll have people throughout the United States, listening to this podcast and many of them are very interested in what Virginia has done to date on the issues of wellness. So can you tell us where you are today?

Len Heath: Sure can. Our June Bar Council and we’re governed by a Bar Council of 81 attorneys that is our Congress in Virginia of lawyers. And in June, our Bar Council adopted a proposed revision to Rule 1.1, actually to the comments of Rule 1.1 on competence that basically says the lawyers’ mental and emotional and physical well-being impacts the lawyers’ ability to represent clients and to make responsible choices in the practice of law.

It’s in the comments, it’s not in the rule. So it’s something that’s advisory and it’s not something that lawyers can be disciplined on.

In addition, in our disciplinary process, acknowledging that some lawyers do have mental health issues and trying to help them, we’ve changed some of our rules or at least made recommendations to the Supreme Court to change some of the rules. One of the rule changes is to allow our Bar Council as the attorneys represented Virginia State Bar to make an informal referral to our lawyer assistance program and share information deemed confidential so that that referral can be made.

Before that change was made our Bar Council couldn’t — could not do that. And so, we’re trying to find other avenues of assisting impaired lawyers as opposed to just punishing them. And in addition, we made another recommendation as far as disciplinary process is concerned that allows attorneys to instead of being prosecuted for an impairment or in violation to close the case in an impairment proceeding by transferring voluntarily over to our disabled and retired class.

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In other words, if you’ve had a lawyer who has practiced for 40 years and all of a sudden he starts suffering from Alzheimer’s or she, and this is a way that they can elect to go ahead and basically take an early retirement given that disability.

Sharon D. Nelson: Well the obvious follow-up question I think and the one that listeners really want to hear about is, so where is Virginia going from here? Have we got a game plan for the future?

Len Heath: Well, we do. And part of that hinges again on Justice Mims’ committee and what will be coming out of that, I can tell you that we’ve got a lot of good ideas unfortunately right now, that’s not fit for or subject to publication yet. But I can tell you that the court has taken the lead on getting out the wellness message.

For example, this morning I got an email where the Chief Justice is asked that I attend a course at one of our state law schools to again teach on wellness. I will be talking later on this week at our own disciplinary conference where I’ll be speaking with Justice Mims on wellness.

So education really is where we’re pushing that right now, and there will be some other substantive changes I suspect coming out of that committee report.

Jim Calloway: How are your efforts in Virginia being funded, Len? Money is always a problem even for good causes.

Len Heath: Well, there are two aspects of what we’re doing with regard to wellness. Number one is education. And as an example of my acceptance speech when I was sworn in afterwards I had a spouse come up to me and she said, I’ve been married to my husband for 25 years, he’s been practicing that entire time and thank goodness somebody is finally talking about this. And so education is key, and fortunately with our CLE industry, particularly here in Virginia, that kind of takes one, its own effort, we don’t really have to fund that.

The other part of the wellness initiative is with regard to impaired lawyers, and keep in mind the wellness initiative is not just about impaired lawyers, it’s about much more than that. That’s that critical self-evaluation of the profession. But when we talk about impaired lawyers, we’re talking about the need to properly fund Collab type programs and here in Virginia, we use Lawyers Helping Lawyers.

And so we are looking at ways of funding that we are a mandatory bar and so we are always mindful of dues and expenses but that is right now a top priority to get more money to Lawyers Helping Lawyers in a number of different ways.

Jim Calloway: Before we move on to our last segment, let’s take a quick commercial break.

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Sharon D. Nelson: Welcome back to The Digital Edge on the Legal Talk Network. Today, our subject is, Attorney Wellness Addressing the Crisis, and our guest is Len Heath, a partner in the firm of Heath, Overbey, Verser & Old, P.L.C., located in Newport News, Virginia.

Len, there has been some talk and I know some work done saying that wellness issues should be receiving CLE credit. Can you tell us where that initiative stands now and what the rationale is for giving CLE credit for wellness courses?

Len Heath: Well, in Virginia we always look to see if the topic is one that either is a recognized legal topic or a topic that entered really relates to the practice of law and that’s a standard that’s used in most states.

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And at this point and I can speak with some authority because I just rolled off as the chair of our MCLE Board. But I could tell you in Virginia we embrace wellness topics for CLE credit, we have given credit for the topic for a number of years as a result of the wellness report that came out in August of last year.

The MCLE Board rewrote our opinion dealing with wellness to make it abundantly clear that we will give credit for the topic. So before that amendment, the opinion was I think about a sort of a page long and now it’s about two pages long, listing all of the things we will give credit for.

Jim Calloway: Len, I know you are only President of the Virginia State Bar for one year and from talking to other bar presidents that moves like a pretty fast year, what do you hope to accomplish on wellness in your year and what do you see that will probably remain to be done after your year in office?

Len Heath: Well two things. Again, one is to be out there with the Chief Justice promoting the discussion of the topic and making people, and when I say people, not just lawyers but significant others; spouses, law students, law professors aware of this particular topic.

The other thing that I am very interested in is I want to drill down to why, and a lot of discussions you hear at top, discussions about well there’s anxiety and depression. Well, a lot of things cause anxiety and depression, but why, why are these things popping up?

So I have put together what I — I call a matrix of occupational risk to lawyer well-being and I did it just to kind of get my thoughts in order but now, the more I do it the more I realized that it really is a very viable project we need to look into and I will be doing this during my year.

I’ve come up with 20 different characteristics of things and each characteristic causes a different type of condition, and is treated differently. And let me give you a couple of examples. We all know most lawyers work long hours, and we also work unusual hours. We also manage problems of others. Those are three real easy things, but then there are things that are not quite so obvious.

One is the sedentary nature of work and now we’re finding studies that indicate that if you just move around a little bit during the day, your health gets better. The mere fact that we work indoors most people thankful that isn’t that a good thing, well it is, unless you have this thing called seasonal affective disorder, which I do, which means that in January or February, I become the world’s biggest grump.

And that causes depression and anxiety but instead of treating it with medication or counseling; fortunately, I have a very wonderful wife who spotted it early and sent me to the doctor and got a diagnosis for me. The treatment is that you get plenty of exercise, you get out on sunny days and you take plenty of vitamin D. So that’s a prime example of understanding the risk and then knowing how to treat it.

And I’ll throw out one other example that is getting a lot of discussion these days and I had not heard of it before and it’s a concept called vicarious trauma. And that is where you’re exposed to some of the worst things in the world and you’re expected that it’s not going to impact you.

As lawyers, we’re told to be objective and to stay distant and not to soak things in, but we’re all human sponges. We all take in things and so we have folks like prosecutors, and defense attorneys, and judges, who are seeing the worst side of society and particularly, gang violence where horrifically bad crimes are being committed as part of initiation.

And to prove part of the initiation, it has to be videotaped and it’s amazing people will do these cruel things, but it’s just as mind-boggling that they will record it. And we have these lawyers who happen to sit down and watch it and so once you have that and then this vicarious trauma comes into play. And we’re finding that there are ways of coping with that and helping others.

As an example, I heard one judge say we used to assign all those cases to one judge. Well, that was horrifically bad for that one judge and then state decided to start sharing it and what that did was, one it took some of the emotional load off of that one judge.

The other thing it did is it gave all of the judges something in common so that they could talk about it and deal with it as a group.

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So that’s and again, on my matrix, I have 20 different characteristics what I want to do and we will be putting together a committee to start studying this is to identify those characteristics. And I’ve got three columns, what’s the occupational risk; the second one, what are the primary effects; and the third column is, what’s the remediation treatment or cure.

And that third column is what I really want to build so that lawyers can go and take a look at this and say, okay, here’s a problem, how do I handle it, how do I spot it? Again, it’s the vast majority of the Wellness Initiative is about education and letting lawyers know the risks involved in the practice of law. And I think that it is a very important topic for us as a profession to be talking about at this time.

Sharon D. Nelson: Well, I think you couldn’t be more right Len, it’s a very important topic and certainly we’ve all seen some of our colleagues have difficulties and we all want to try to help them as much as we can. I don’t think I’ve ever asked or thanked a guest who calls himself a grump, even if it’s only a seasonal grump but I do thank you for being our guest today.

Your passion certainly inspired me personally and I know it’s inspired many Virginia lawyers as you go around the state, speaking to them about this very important topic. I know you’re very busy, so thank you for taking the time to talk to us today Len.

Len Heath: All right, thanks Sharon, thanks Jim. I appreciate the opportunity.

Sharon D. Nelson: And that does it for this edition of The Digital Edge: Lawyers and Technology. And remember, you can subscribe to all of the editions of this podcast at legaltalknetwork.com or on Apple podcasts. And if you enjoyed our podcast, please rate us in Apple podcasts.

Jim Calloway: Thanks for joining us. Goodbye Ms. Sharon.

Sharon D. Nelson: Happy trails, cowboy.

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