However, I do feel some unease in the midst of some of this mostly very commendable discourse. Consequently, this post will be aimed towards encouraging us all to slow down for a minute and make sure that when we talk about the need to take care of ourselves we don't fall prey to a coercive and potentially discriminatory type of message that tells lawyers that only those who meet a certain baseline of "normal" health will be valued and empowered to contribute.
Prior to saying more, I need to emphasize yet again that I'm not a mental health professional so nothing I say should be construed as advice about how and when people should seek assistance for their mental health issues. I'm also not purporting to give any advice about what our professional responsibilities in the face of a health issue actually may be in accordance with current rules and norms. In fact, I won't be addressing the actual rules of professional conduct at all. Instead, I'm speaking solely for myself about how I personally feel our profession should approach these discussions, the types of questions we should ask, and the outcomes and attitudes we should make a conscious effort to avoid.
The American Bar Association Report from the Task Force on National Well-being has recently said, "To be a good lawyer, one has to be a healthy lawyer." To be clear, I have not read further from their report, which I came upon only very recently (also note that I am not an American lawyer). It may very well be that it contains a more nuanced discussion, but from that comment and others like it that I have heard in this profession, I have concerns about this kind of rhetoric in service of what is an undeniably laudable objective.
The problem with demanding that lawyers be "healthy" as a professional obligation is that there is (I would argue) no baseline of health that is the same for everyone. Some people will have greater health challenges due to circumstances beyond their control. Some health challenges (whether physical, mental or a combination of both) may only be able to be managed, not cured. Some people may therefore not be able to reach the same baseline of health, but let's be clear: this does not mean that they aren't good lawyers or are somehow "less good" than their "normal" "healthy" colleagues. What matters is competence, professionalism, integrity, ethics, etc. Yes, this may include a requirement to be healthy enough to be able to reliably practice with the foregoing attributes but the touchstone of what it means to be a good lawyer should not be equated with health beyond these measures (that actually have a relationship to our ability to do our jobs). So in my view, a healthier lawyer is not inherently a better lawyer. Being disabled by an ongoing health condition that makes practice more difficult does not necessarily mean a lawyer can't make extraordinary contributions and be an excellent lawyer (maybe in some instances even a better lawyer than many colleagues who have been blessed with the good fortune of optimal health).
So yes we absolutely need to talk about the duty to care for our own health to the extent required to ensure that we can meet the requirements of professional practice. But in my view a duty to pursue optimal health should not become (or be talked about as if it were) a freestanding requirement. For those who struggle with an ongoing health issue that may take considerable time to improve, or even, sadly, a degenerative condition that may be expected to worsen over time, the effort to remain professionally competent may not even realistically involve a goal of improving health. It may simply involve a strategy to manage the condition and to recognize when it starts to interfere with the ability to practice (thereby requiring a break or a withdrawal from practice).
Again, I'm not an expert on any of this and purport to offer no advice on what that the standard should be. Obviously mental health issues can sometimes pose a risk for our competence just as physical health and other stressors and limitations can, so we have a duty to be mindful of this and deal with it appropriately, BUT unhealed health issues (mental or physical) do not necessarily render someone incompetent or even prevent a lawyer from being excellent.
So what am I suggesting? I'm suggesting that the conversation has to change. We can't just cajole and shame people into addressing their health issues in order to be a good lawyer (I'm not suggesting that anyone is doing so, just that it's a risk that needs to be consciously avoided). Rather, we need to support people in doing whatever they can to be the best lawyer they can be, which may include being as healthy as they can in their own unique circumstances (recognizing their autonomy to make choices about how they wish to live). And of course we need to continue to educate lawyers about the risks inherent in improperly managed health issues that may impact their ability to practice, and continue to have mechanisms available to monitor professional competence and supports in place to assist people in addressing their health issues when they need or wish to.
But when we talk about lawyer wellness, instead of shaming people into becoming healthier to be a good lawyer, I think we should start by addressing and dismantling aspects of our professional culture that have discouraged lawyers from feeling like it is okay to take care of themselves and have well-being for their own sake. So to encourage a climate of wellness, we need to stop talking simply in terms of what lawyers owe to the profession (Arguably, that feeling of owing everything to the profession is often what creates such immense stress on practitioners so as to exacerbate or create many health issues in the first place). Rather, to change the culture, we need to practice reminding lawyers to care for themselves because their well-being intrinsically matters. Not because they owe it to the profession, but because they are encouraged and empowered to make a contribution professionally while also maintaining space for their own well-being and health.
And we also need to have these conversations while being cautious to avoid discriminatory attitudes and outcomes. We need to make a conscious effort to remember that:
- Health- and disability- shaming are not okay.
- Not everyone in this profession needs to be like everyone else.
- Not everyone needs to be so privileged as to be able to fit others' definitions of "healthy."
- Some lawyers may arrive in the profession with greater burdens and struggles which may make practice more difficult for them but which don't prevent them from making wonderful and important contributions.
We accordingly need to ensure that the discussions on lawyer wellness do not amount to telling people to go away and fix themselves while letting the profession and individual workplaces off the hook so that no soul-searching need be done to determine how to provide a more accommodating environment so that people with different health challenges will be able to meaningfully participate.
As always, please note that I am a lawyer, not a mental health professional of any kind. I have no expertise in trauma or mental health. Also, please note that any opinions and views expressed in this blog are solely my own and are not intended to represent the views or opinions of my employer in any way. For more information about the purpose of this blog, please see here and for a bit more information about my personal perspective on this issue, please see "my story" here
I am very grateful to have received a "Clawbie" Award for this blog (which reflects the importance of this topic): https://www.clawbies.ca/2019-clawbies-canadian-law-blog-awards/
For some of my external writing on this topic, see:
- https://www.canadianlawyermag.com/news/opinion/a-more-inclusive-discussion-on-the-impact-of-trauma-on-lawyers-mental-health-is-needed/276166
- https://www.cbabc.org/BarTalk/Articles/2020/February/Features/Speaking-Up-About-Trauma-and-Mental-Health
- https://www.canadianlawyermag.com/news/opinion/changing-the-conversation/326240
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