The American Bar Association is poised to endorse mandatory continuing legal education focused on substance abuse and mental health issues following a study last year that showed lawyers suffer from those problems at a high rate.
At the ABA’s midyear meeting next week in Miami, the organization’s House of Delegates will consider a proposed revision of its Model Rule for Minimum Continuing Legal Education. Under the proposal, all lawyers would complete at least one credit hour of CLE every three years in a session “that focuses on the prevention, detection, and/or treatment of mental health disorders and/or substance use disorders.” The resolution is sponsored by the ABA’s Standing Committee on Continuing Legal Education and its Commission on Lawyer Assistance Programs.
If adopted, the model rule would be advisory — individual jurisdictions set out their own CLE requirements. Currently, most jurisdictions allow attorneys to earn CLE credits for programs on mental health and substance abuse. Only California, Nevada and North Carolina currently require such courses.
The proposal, which will go before the House of Delegates on Feb. 6, has received no formal opposition. The ABA declined to make anyone available to discuss the proposal, but those who have been following the resolution expect it to pass.
The ABA’s endorsement would give state lawyer assistance programs the ammunition they need to push their individual jurisdictions to adopt requirements, said Patrick Krill, a lawyer and drug and alcohol counselor whose consulting firm Krill Strategies advises law firms on substance abuse and mental health matters.
Krill was the co-author of a 2016 study from the ABA’s Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation that found that 21 percent of licensed attorneys qualify as problem drinkers; 19 percent have symptoms of anxiety; and 28 percent show signs of depression. Lawyers in their first decade of practice were more likely to face these issues, the study found, and the legal profession had higher rates of substance abuse and mental health problems than other industries.
The ABA proposal points to the study, which is based on surveys of nearly 13,000 lawyers nationwide, as evidence that the CLE requirement is needed.
“This is long overdue,” Krill said. “This will provide counterprogramming to the informal education lawyers receive, which is the normalizing and rewarding of unhealthy behaviors. There’s implicit and explicit messaging that you don’t tell people you’re struggling because it will implode your career.”
Imposing a CLE requirement will remove a major barrier to substance abuse and mental health programs: the stigma attorneys may face for attending voluntary sessions, said Bree Buchanan, director of Texas Lawyers Assistance Program, which has endorsed the ABA proposal.
“There is tremendous fear that if you attend a CLE program related to these issues and someone identifies you there, it will cast a shadow on you,” Buchanan said. “If everybody has to take it, it doesn’t indicate that you may have a problem with these issues.”
Krill said a better understanding of substance abuse and mental health issues is bound to make lawyers more competent overall and better able to assist clients who may be facing those issues themselves. Required CLE courses will also give lawyers the tools to recognize colleagues who may be struggling with substance abuse or mental health problems. “I can’t imagine anyone who wouldn’t benefit from this,” Krill said. “If you don’t have this education, you won’t know what to look for.”
The proposed change comes after a multiyear review of the ABA’s Model Rule on Minimum Continuing Legal Education by a special committee. That rule hasn’t been updated since 1988.
In addition to the substance abuse and mental health requirement, the proposal endorses a requirement that all attorneys complete at least one credit hour of CLE instruction on diversity and inclusion. “Diversity and inclusion programming can be used to educate lawyers about implicit bias, the needs of specific diverse populations, and ways to increase diversity in the legal profession,” according to the ABA report on the resolution. Currently, only three states — California, Minnesota and Oregon — require attorneys to complete specific diversity and inclusion programs.
In 2015, the ABA’s House of Delegates adopted a resolution that discourages attorney-licensing authorities from investigating would-be lawyers’ mental health backgrounds during their character-and-fitness reviews. Proponents of the resolution argued that a candidate’s mental health history does not reliably indicate future professional misconduct, and that the required disclosure discourages law students from seeking treatment.
While the new CLE proposal is welcomed by lawyer assistance programs, more is needed, Buchanan said.
“It’s a start,” she said. “But to understand the signs of substance abuse and mental health issues, to learn how to help others with those issues, and to understand the services available, it’s really hard to get all that in one hour every three years.”
Contact Karen Sloan at email@example.com. On Twitter: @KarenSloanNLJ.
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