Erasing the Mark: Mental Health Stigma in the Legal Profession
By Disability Rights Tennessee and the Nashville School of Law Legal Aid Society[i]
“Mental Illness is nothing to be ashamed of, but stigma and bias shame us all.” –Bill Clinton
Approximately half of legal professionals are affected by a mental illness (MI). According to a 2016 study published in the American Society of Addiction Medicine (ASAM), 61% of attorneys reported concerns with anxiety and 46% reported concerns with depression at some point in their careers.[ii] These numbers are especially staggering compared to the national incidence of mental illness which is reported to be 1 in 5, or roughly 20%.[iii] Remarkably, legal professionals are twice as likely to have MI as the general population.
The American Psychiatric Association defines MI as a health condition involving changes in emotion, thinking, and/or behavior. MI can range from mild to severe, can affect anyone regardless of age, gender, geography, race, socioeconomic status, and ethnicity, and is caused by a variety of genetic and environmental factors. [iv] [v]
Even though MI can be described as commonplace in American society, only half of people living with MI seek treatment, in large part due to stigma.[vi] The word stigma comes from the Greek word meaning “mark” and generally denotes the disapproval of or discrimination against people based on certain diagnoses, characteristics, traits, actions, or mannerisms.
“Stigma is often based on thinking errors,” explains Dr. Kimberly Brown, clinical psychologist and Associate Professor of Psychiatry and Behavioral Sciences at Vanderbilt University Medical Center. “When people think of a person with MI, they reference things that are readily available to them in the news and on television. Unfortunately, there are not many individuals with MI portrayed as strong and capable in the media or on TV. Instead, they are portrayed in the worst possible light---as violent, dangerous, and helpless—which is not accurate. These assumptions can lead to stigma, bias, and discrimination against individuals with MI.”
MI stigma can play out in a number of ways, including stereotyping, social avoidance, condescension, and discrimination. [vii] Looking at that list, is it any wonder why law students, lawyers, and other legal professionals are hesitant to talk about their mental health?
“I discovered that my [mental health] diagnosis led to assumptions that I would be unable to handle the stress of practicing law and would pose a danger to clients,” explains Kathy Flaherty, Executive Director of Connecticut Legal Rights Project, Inc., and a successful attorney and advocate for lawyers with MI. “Having to hide this [MI] takes up so much social space that could, instead, be devoted to legal work and helping clients."
With the fear and isolation caused by the COVID-19 Pandemic, MI is on the rise. According to a recent Census Bureau survey on COVID-19, 34% of American adults show symptoms of depression or anxiety, an increase of 11% in the last year.[viii] The time is ripe to take a deeper dive into why stigma surrounding MI exists in the legal profession and take action.
STIGMA IN THE LEGAL PROFESSION
The legal profession has always been a fast-paced, high-intensity line of work with looming deadlines, long hours, and often heightened stakes that leave little time for work/life balance. [ix] These stressors continue to mount as lawyers push to make partner or advance their careers. “Clients often believe the justice system can accomplish more than it really can,” comments Justin Gilbert, a member of the Tennessee Bar. “And that places unrealistic expectations on lawyers. Over time, the pressure on lawyers of trying to meet those unrealistic expectations piles up. Eventually, the lawyer’s own health can suffer.”
It is no surprise that lawyers in the 2016 ASAM study reported high rates of MI and MI-related symptoms. The most common mental health conditions reported by lawyers were general anxiety (61.1%), depression (45.7%), social anxiety (16.1%), attention deficit hyperactivity disorder (12.5%), panic disorder (8.0%), and bipolar disorder (2.4%). [x]
We know that MI is a problem in the legal profession, yet it is not widely addressed. Marie[xi], a successful attorney with over seven years' experience in special education, had been open about her mental health diagnoses with her boss. However, when Marie had concerns about the wording of a legal document, her boss brushed them off as “just your anxiety talking.” Her boss’s condescending attitude felt like “a slap in the face.” “I pride myself in my skills as an attorney,” Marie explained. “I felt dismissed [because of my MI].”
According to Lily C. Darnell, M.A., LBA, BCBA, who works for the Middle Tennessee Mental Health Institute, individuals may fear being judged for their MI diagnoses. “I have seen people trying to minimize or deny their internal struggles because they are worried about what others will perceive of them. The fear of being judged or perceived as different may lead individuals to suppress their feelings and not seek professional help for their MI.”
Furthermore, participant-lawyers in the ASAM survey ranked fears about others finding out and concerns regarding privacy as their main concerns about seeking MI treatment.[xii] Simply put, lawyers appear not to seek treatment for mental health issues due to stigma---if others found out about their diagnoses, then they believe they would be embarrassed or shamed, or that the knowledge would jeopardize their legal careers and, in turn, their livelihoods, reputations, and statuses.
Unfortunately, there is precedent for mental health stigma in the legal profession. Until a few years ago, the character and fitness application used by Tennessee Board of Law Examiners (TNBLE) included questions which focused solely on an applicant’s diagnosis of an MI, including questions about a MI diagnosis and how this diagnosis could affect an applicant’s ability to practice law in a competent and professional manner. If an applicant’s response to these questions elicited further inquiry, the TNBLE then required the applicant to release his or her mental health records. In addition, applicants with MI were generally subjected to a heightened level of scrutiny throughout the remainder of the licensure process. These were individuals who had already completed the demanding tasks of graduating from law school and passing the Bar exam, so there was no rational reason to believe that they could not become successful lawyers.
As one successful lawyer with MI explains, “When I went for the routine character and fitness interview that friends of mine described as a coffee klatch, I was surprised when the attorney interviewer’s first question was what medications I take. He then proceeded to grill me for an hour and a half about my mental illness instead of welcoming me to the Bar. The delays caused by honestly answering the questions [about my MI] on the application resulted in me almost missing the group swearing in ceremony with my friends.”
The stigmatizing questions were eventually removed from the Bar application. Despite the progress, MI stigma remains an issue of concern for Tennessee law students. “Anxiety and depression have plagued my law school experience,” says one law student in Tennessee. “Dealing with life while trying to maintain a proper study schedule has been exhausting. Seeing other people do better makes it even harder to deal with it. You never feel like you are good enough.”
In the same way that MI stigma affects those who practice law, it also impacts clients with MI. A few years ago, David[xiii], a former lawyer, received a diagnosis of depression as well as identified mood stability issues. David’s mental health eventually declined to the point that he was hospitalized for several days due to suicidal ideations. Thankfully, the hospitalization had good results. His anger subsided and his depression diminished because David underwent treatment. “I was put on a regimen of medication that helped,” David explains. “After the hospital stay, I didn’t need additional treatment other than occasional therapy.”
Shortly thereafter, David and his wife decided to divorce. As he prepared to file for divorce, David’s wife filed a protective order against him on behalf of her and their children comparing him to a “rabid dog.” “The petition and hearing centered on my hospitalization,” he explains, “which just wasn’t fair. The focus of the hearing wasn’t on questions of our children’s best interest. The focus was on my diagnosis.”
But David was determined to fight for his kids. After many months and a final evaluation, the court found David wasn’t a threat to his children. The judge loosened restrictions on his visitation. Ironically, as he points out, nothing had changed in the interim. His medication regimen was exactly the same. There was evidence that he, in fact, had been in a good place with his mental health since even before the filing of the initial petition.
Looking back on the experience, David thinks that it is crucial for attorneys to understand how to treat clients who have diagnosed MI. But, he also believes that how adverse parties treat someone’s mental health can help prevent stigma, especially when an MI might be an issue in the matter. “I understand there might be a natural tendency to want to question someone who has a mental health issue, but lawyers are not permitted to discriminate based on a diagnosis. I think, ‘Comparing litigants to rabid dogs?’ That’s stigma.”
WHAT CAN WE DO?
Helping others is the core reason many choose to enter into the legal field. However, anxiety and depression rates among lawyers remain high.[xiv] Where do attorneys go to seek counsel so they can best counsel others?
A good first step is to consult your own primary health physician or mental health professional if you believe you may be experiencing a symptom of a MI. Some of the symptoms include but are not limited to: Thinking negative thoughts about yourself, irritability or moodiness, having trouble concentrating, trouble sleeping or sleeping too much, not enjoying life as much as you used to, and loss of appetite.[xv] If you have noticed any of these changes over the last few weeks or months, you should consider making an appointment with your family doctor and/or mental health professional.
Dr. Kimberly Brown urges individuals who may be experiencing symptoms of MI to get treatment at the first sign of any symptom as opposed to waiting until the symptoms become overwhelming. Treatment does not have to be a long-term process notes Dr. Brown; individuals may see real progress in just a few weeks. The Tennessee Lawyers Assistance Program (TLAP) provides free consultations, interventions, and accepts anonymous referrals in order to educate and guide the members of the legal profession on securing the help that they need. [xvi] Contact TLAP at http://www.tlap.org/.
It also helps to have a strong support system around you, including family, friends, coworkers, and others going through the same thing. To help with support at work, the American Bar Association (ABA) released a 7-point Well-Being Pledge for Legal Employers and an accompanying Well-Being Toolkit.[xvii]Created in an effort to improve the mental health and substance abuse landscape for lawyers in the U.S., the pledge asks legal employers to provide enhanced and robust education about MI, reduce expectations of alcohol consumption, use outside partners in initiatives, provide confidential access to MI services, develop proactive policies to help employees, incorporate health and wellbeing into workplace core values, and use the pledge internally with staff.
There are also programs specifically designed to help law students who are experiencing mental health issues. The Dave Nee Foundation was born out of a tragic suicide of a third-year law student. In working to educate the legal community on suicide and depression, the Foundation created the program Uncommon Counsel, shedding light on the statistics of the profession they are embarking upon and providing strategies and resources to navigate through the unique stressors law students encounter.[xviii] Additionally, law schools across the country have implemented Let’s Talk, a program providing law students with access to confidential, certified counselors.
Lawyers spend so much time working in their own areas of law that they may forget they also benefit from legal protections. Beyond the resources mentioned above, there is legal relief available for lawyers with MI who feel they have been subject to discrimination. There are two broad umbrellas of protection for those who may have experienced MI stigma: the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).
AMERICANS WITH DISABILITIES ACT (ADA)[xix]
Title I of the ADA requires employers to treat employees with MI fairly and equally and provide reasonable accommodations for an employee’s mental health condition. [xx] It is best practice for a lawyer to request a reasonable accommodation as soon as the need for one arises. Once a lawyer requests a reasonable accommodation, an employer may initiate and engage the lawyer in an informal interactive process to discuss the potential reasonable accommodation.[xxi] An employer may make medical inquiries that are job-related and consistent with a business necessity; however, an employer may not disclose a lawyer’s mental health condition to others.[xxii]
Under Title III of the ADA, a lawyer or other member of the legal profession cannot discriminate against a client because of a MI. Clients with disabilities, including MI, must be provided equal access to a lawyer’s goods and services, including reasonable modifications in a lawyer’s normal practice in order to ensure equal access.[xxiii] For example, a client with an anxiety disorder may not want to wait in the reception area with other clients. It would be reasonable for an attorney to allow this client to wait in their car prior to a meeting or to wait in a quiet, less crowded area of the office.[xxiv]
If you believe there has been an ADA violation for any of the above, please reach out to the EEOC. Go to www.eeoc.gov, call 1-800-669-4000, or contact your local office (www.eeoc.gov/field/index.cfm).
FAMILY AND MEDICAL LEAVE ACT (FMLA)[xxv]
An employee may take up to 12 work weeks of entitled leave for his or her own serious mental condition, provided that certain eligibility requirements are met.[xxvi] To qualify for FMLA leave, an employee’s MI must involve “inpatient care… or (B) continuing treatment by a health care provider.”[xxvii]
If you believe you need to take FMLA leave, please reach out to the United States Department of Labor. Go to www.wagehour.dol.gov, call 1-866-487-9243, or contact your local office (www.dol.gov/agencies/whd/contact/local-offices).
CHANGING OUR PERCEPTION
In order to remove the stigma surrounding mental health, we must work to make seeking assistance for mental health commonplace. We would never judge someone for seeking the knowledge of a medical professional for chest pains; seeking assistance for mental health should be no different. Like working at a construction site could produce prolonged bodily aches and pains over time, legal professionals are subject to demanding deadlines and complicated problems with life-changing consequences, putting strain on the brain. Seeking the aid of a medical professional for our body's control center should be no more scrutinized than seeking aid for the body itself. "If more people would talk about MI then they would realize how common they really are,” notes Kathy Flaherty. “Pretending that it's not there doesn't do any of us any good."
As we strive to foster an environment where we can seek help and offer education and understanding on mental health, our words must align with those objectives. In 1988, the American Bar Association (ABA) created the Commission on Impaired Attorneys. In 1996, the ABA changed the name to the Commission on Lawyer Assistance Programs. This is one example of the power of words and their neutrality in aiding those facing MI and MI stigma.
Perhaps most importantly, we need to shed the shame and secrecy of MI and openly support ourselves and others who are experiencing MI or related symptoms. “Being public about MI is to normalize it and prioritize your health,” says Marie, a successful attorney who grappled with confidence issues after her boss used her anxiety to brush off her concerns about a legal document. “It is okay to use a sick day for your mental health.”
“How many great lawyers have we missed out on because of the stigma and discrimination against people with MI?” Kathy Flaherty points out. We must preserve the health and integrity of the legal profession by combating the stigma surrounding MI. According to Dr. Kimberly Brown, professionals such as lawyers, judges, and law students should be open about their MI diagnoses and be encouraged to seek appropriate MI care and treatment. Only then can we debunk the myths surrounding MI and affect systemic change in the way we think about and treat individuals with MI.
It is time to erase the stigma, starting with Tennessee.
 DRT contributors: Karen Bessette, Daniel Ellis, Hunter Hancock, Kelsey Loschke, Stacie Price, Sherry Wilds, Charles Nelson, and Rachel Scoggins; Nashville School of Law Legal Aid Society Contributors: Stef Brake, Grant Benere, Pooja Bery, Julie Downs, Emily Hobby, Johnny Pepper, Sydney Raines
 Patrick R. Krill, et al., The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 J. Addiction Medicine 46, 50 (2016).
 U.S. Dept. of Health and Human Services, Mental Health: A Report of the Surgeon General (1999), https://collections.nlm.nih.gov/ocr/nlm:nlmuid-101584932X120-doc.
[4) What is Mental Illness?, American Psychiatric Association (August 2018), https://www.psychiatry.org/patients-families/what-is-mental-illness.
 Mental Illness, Mayo Clinic (June 8, 2019), https://www.mayoclinic.org/diseases-conditions/mental-illness/symptoms-causes/syc-20374968.
 Mental Health: A Report of the Surgeon General, supra note 1. (In 2019, 56.4% of individuals with mental health issues were still going untreated, according to the U.S. State of Mental Health Report).
 Arielle Silverman, Disability Stigma and Your Patients, Healthy Aging and Physical Disability Rehabilitation Research and Training Center (2016), http://agerrtc.washington.edu/info/factsheets/stigma.
 National Center for Health Statistics, Mental Health: Household Pulse Survey, https://www.cdc.gov/nchs/covid19/pulse/mental-health.htm(last updated July 8, 2020).
 Laura Rothstein, Law Students and Lawyers with Mental Health and Substance Abuse Problems: Protecting the Public and the Individual, 69 Pitt. L. Rev. 531, 531 (2008).
 Krill, supra note 2, at 48.
 Not her real name.
 Id. at 50.
 Not his real name.
 See generally Bree Buchanan & James C. Coyle, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change. National Task Force on Lawyer Well-Being, (2017), https://www.americanbar.org/content/dam/aba/images/abanews/ThePathToLawyerWellBeingReportRevFINAL.pdf. (“To be a good lawyer, one has to be a healthy lawyer … too many lawyers and law students experience chronic stress … depression … and substance use.”)
 Talking to Your Doctor About Your Mental Health, Familydoctor.org (May 14, 2019), https://familydoctor.org/talking-to-your-doctor-about-your-mental-health/.
 Tennessee Lawyers Association Program, http://www.tlap.org/about (last visited Apr 4, 2020). These are just a few of the resources available to law students and attorneys. If you or someone you know is in need of assistance, call 1-877-424-TLAP.
 Working Group to Advance Well-Being in the Legal Profession, Am. Bar Ass’n. (Sept. 2017) https://www.americanbar.org/groups/lawyer_assistance/working-group_to_advance_well-being_in_legal_profession/.
 History, Dave Nee Found., http://www.daveneefoundation.org/history/ (last visited Apr 4, 2020).
 The Americans with Disabilities Act of 1990 or ADA (42 U.S.C. § 12101 et seq.) is a civil rights law that prohibits discrimination based on disability
 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a)
 29 C.F.R. § 1630.2(o)(3)
 42 U.S.C. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c)
 42 U.S.C. § 12182(b)(2)(A)(ii)
 Tips for How to Help a Person with Mental Illness, National Alliance on Mental Illness https://www.nami.org/Get-Involved/NAMI-FaithNet/Tips-For-How-to-Help-a-Person-with-Mental-Illness.
 The Family and Medical Leave Act or FMLA (29 U.S.C. § 2601) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year.
 29 U.S.C. § 2611(4); 29 C.F.R. § 825.104
 29 U.S.C. § 2611(11)