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If you’ve ever known lawyers who struggled with addiction or a mental health problem, chances are they were quite reluctant to admit anything was wrong. Even in the face of compelling evidence to the contrary, they likely denied the existence of any struggle, perhaps even cautioning you not to believe your lying eyes.

But why? Why exactly are lawyers so afraid to admit these types of problems, often to the point of a mutually exhausting campaign of gaslighting and duplicity? Often it is because they don’t want to appear unreliable, untrustworthy, incapable or otherwise less-than. Above all, they don’t want anyone to think they could be impaired.

Impairment is generally defined as being in an imperfect or weakened state or condition, diminished in capacity or ability, or unable to function normally or safely. In the context of the legal profession specifically, impairment is usually framed in terms of a lawyer’s ability to represent the client, and it suggests a state of being that is antithetical to the lawyer’s duties and obligations, not to mention his or her self-image. It is, therefore, not difficult to understand why lawyers fear the I-word, and its many implications for their livelihoods, reputations and self-esteem.

But by focusing so narrowly on the relationship between a lawyer’s mental health and his or her professional obligations, is the legal profession unintentionally cultivating a broader population of unwell practitioners?

In a word, yes.

To be clear, I understand the need and rationale for making impairment both a point of intervention and a cause for intense scrutiny when it comes to a lawyer’s substance use or mental health. Protecting the public from impaired lawyers is paramount and arguably not something with which the profession has historically done a bang-up job. There is zero doubt that legal employers should have thoughtful and effective impairment policies on the books, and that the rules governing the practice of law in all jurisdictions should mandate a better understanding that active impairment cannot be allowed to coexist with active representation.

The problem is, however, that by drawing that line in the sand, we have implicitly taught lawyers that everything up to that line is OK. It is no surprise, then, that when the line does come into sight, the prevailing instinct for many lawyers is to ignore, deny, stall, obfuscate and, when all else fails, argue that the line itself is arbitrary and capricious.

By overlooking or rationalizing away everything that occurs up to the point of impairment, the profession extends a carcinogenic deference to tens if not hundreds of thousands of lawyers a year. Increasingly unhealthy lifestyles, deteriorating moods, and gradual degradations in quality of life are seen as par-for-the-course attributions of a busy and hard-working lawyer, rather than warning signs or precursors of illness. Drinking too much or perhaps feeling despondent? Soldier on, young lawyer, the Rules of Professional Conduct don’t say anything about that, and neither will we.

The problem with this approach—to the extent that it is not self-evident—is that much collateral damage, and many truly unfortunate things, happen along the road to impairment. By the time they reach the terminal point in their journey of dysfunction, many lawyers’ personal lives are long since in shambles, a fact that is usually concealed from their colleagues and friends. They have drifted so far away from whom they want to be, both as people and professionals, that the fear of drifting any further is overwhelming. Rather than reach out a hand and ask for help, many in this position will cling desperately to any semblance of the life they either want or once had, deploying any and all subterfuge necessary in order to do so. All of this—the damage, the suffering, the hiding of problems—would otherwise be avoidable or reducible if we began to recalibrate our thinking to focus on illness instead of impairment.

Illness and impairment exist on a continuum, with illness normally predating impairment, frequently by a matter of years. The terms are not synonymous, despite the tendency in the legal profession to reflexively equate them. Illness indicates the presence of a disease or disorder, or more specifically, the presence of diagnostic criteria consistent with disease or disorder. Impairment, on the other hand, is a functional classification tied to an ability or inability to perform certain tasks. By erroneously coupling the two, the profession sends an additional, harmful signal to lawyers: Admit one and you are admitting both.

In reality, most lawyers who develop an illness can function effectively and safely during the earlier stages of their illness due to their rigorous training and professional dedication to maintaining their practice and reputation. In other words, they are ill but not impaired. If employers, bar associations, regulators, and rules focused more on helping these individuals then, rather than waiting until an impairment has emerged that can no longer be ignored, the results would be transformative for the individuals, and the profession. Clinicians have long understood that it is always preferable to identify and treat illnesses early in their course, before they have become severe and complex and resulted in secondary complications.

Now it is time for the legal profession to understand the same.

 

Patrick R. Krill is the founder of Krill Strategies, a behavioral health consulting firm focused exclusively on the legal industry. Go to www.prkrill.com for more information.