THE ETHICS OF MENTAL ILL-HEALTH IN THE LEGAL PROFESSION

Michelle Sharpe*

Over the last year in Australia the mental health of legal professionals has attracted considerable attention in the media. Much of this media attention was focused on the Victorian Bar when Victorian Barrister Peter Hayes QC was found unconscious in an Adelaide hotel room. I am a barrister and a member of Victorian Bars Health and Well-being committee and I want to draw on some of my experiences and observations at the Victorian Bar in considering three questions; is mental health in the legal profession a problem?, if mental health is indeed a problem in the profession, why is it problem? and finally, if there is a problem, why should we do anything about it? I will also be drawing on a number of empirical studies that have been conducted by psychologists predominately in the US to compare with my experiences at the Victorian Bar and to flesh out answers to these three main questions.

Is there a problem?
The Victorian Bar experience

Many barristers at the Victorian Bar can tell you of stories of barristers, and judges, that they know of who suffer, or appear to be suffering, from mental ill-health In 2005 there had been some discussion at the Victorian Bar about the need to review the Bars support structures for members. This idea, which at first seemed to be treated as being highly novel, was given impetus after the death of a senior of the Bar. Bernard Griffin SC hanged himself on Fathers Day, 2 September 2006.1 After his death it became known that he had suffered from clinical depression but, prior to his death, neither his clerk nor any of his closest colleagues knew that he suffered from the illness. News of Brendans death rocked the Bar and it seemed that for the first time, members began to openly acknowledge that a problem existed at the Bar.2 The Chairman of the Bar circulated a notice reminding members of the existence of the Bar Care Scheme which at that time provided one free counseling session at a counseling center located outside of the city.3

* BA(Juris) LLB(Hons) GDLP PhD(Melbourne). Lecturer at the University of Melbourne and a barrister practicing in general commercial law at the Victorian Bar. Member of the Victorian Bar Council and a member of the Bars Health & Well-Being Committee. 1 Victorian Bar News, 3 November 2006, Obituary, at 25. 2 Gibson, Jeffery, Surviving the Law, Ibid, at 26 and Gibson, Jeffery, Does the Bar Matter?, Victorian Bar News, at 57. 3 Cairnmiller Institute, Camberwell, Victoria. The scheme now provides for 6 free counseling sessions on a selfreferral basis.

In September 2006 what was then known as the Bar Care Committee, and later the Health and Well-Being Committee, was established. The purpose of the committee is to promote cultural change at the Bar conducive to good mental health and to provide support systems for members of the Bar. The work of the Committee was only slowly beginning when, on 11 May 2007, Peter Hayes QC was found naked and unconscious in an Adelaide hotel room. Peter never regained consciousness and died eleven days later in an Adelaide hospital. Unlike the death of Brendan, Peters demise was reported widely in the media.4 The Victorian Bar was criticized for failing to recognize the existence mental health issues and to provide support. Among one of the Bars most vocal critics was Peter Faris QC who made the claim that the Bar was awash with cocaine.5 This led to wide spread calls by the public for random drug testing of lawyers.6 In response to these calls Robert Richter QC, also member of the Victorian Bar, appeared on the channel nine Sunday program condemning any move to randomly drug test lawyers.7 Robert during the interview also admitted to having suffered from depression himself and observed that mental ill-health was widespread among barristers and judges. Over the past year the Health & Well-being committee has organized several seminars to raise awareness about mental health issues at the Victorian Bar which has received a mixed response from members. The committee has also provided direct assistance to barristers in distress who required immediate help. The committee is currently engaged in the process of researching how it can best provide support to barristers.
Empirical Studies

These observations made in the microcosm of the Victorian Bar echo the results of empirical studies examining the mental health of the profession. Studies have revealed that lawyers are more than twice as likely to become alcoholics as the general population8 and more lawyers,
Carmel Egan, Mystery surrounds collapse of top QC, The Age 13 May 2007, Carmel Egan, Lawyer found naked, unconscious Brisbane Time 13 May 2007, Charges over QCs collapse, The Age 15 May 2007, Kate Kyriacou and Renato Castello, Fears for Hayes visitor, The Herald Sun, 20 May 2007, Jeremy Roberts and Micheal Davis Police check video for clues to barristers collapse The Australian 17 May 2007, Prominent Lawyer Peter Hayes QC, Dies The Sydney Morning Herald, 22 May 2007 and Carly Crawford, Peter Hayes tributes flow 23 May 2007. 5 Clare Buttner, Lawyer sniffs a cocaine problem in the profession, Lawyers Weekly, QC claims tops lawyers using illegal drugs, ABC The World Today, 16 May 2007, Karen Kissane, Cocaine and the law, The Age 19 May 2007, Liz Porter, Cocaine rife? Bar humbug, say lawyers The Age 20 May 2007, Liam Houlihan and Chris Tinkler, High Society awash with drugs Herald Sun, 20 May 2007, Chris Merritt, Victorian Bar drops Peter Fairs misconduct probe, The Australian, 13 June 2008 and Daniel Hoare, Barrister death sparks drug debate, ABC The World Today, 22 May 2007 and Lawyer Peter Faris facing disbarment over drugs comments Herald Sun, 29 October 2007. 6 Drug Test lawyers, urges QC The Age, 16 May 2007, One Nation, Legal Profession Should Be Drug Tested Like Everyone Else Media Statement, 2 June 2007, www.nswonenation.com.au and Gary Hughes, Time for a dose of reality at the bar, The Australian 21 May 2007. 7 Channel 9, Sunday television program Lawyers and the Black Dog 17 June 2007 8 Connie J.A. Beck, Bruce D. Sales & Andrew H. Benjamin, Lawyer Distress: Alcohol Related Concerns Among a Sample of Practicing Lawyers, (1995-1996) 10 J.L. & Health 1.
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than the general population, have been reported to have used cocaine.9 Lawyers have reported experiencing significant levels of stress and anger and unhappiness in their martial relationships.10 Lawyers have also been found to be, at least, more than twice as likely to suffer from depression as the general population.11 In one study the incidence of depression among lawyers was found to be four times greater than that in other professionals.12 Mental ill-health of legal practitioners begins at law school. Law students have been shown to suffer from greater stress and anxiety than other students.13 Law students are reported to suffer from higher levels of depression than the general population.14 One study has also revealed that while the vast majority of law students begin consuming alcohol and/or using drugs before commencing law school consumption or usage increased as students progressed through their law degree.15 Perhaps one of the most revealing studies of all found that law students shortly before commencing their law degree reported normal levels of psychiatric distress.16 The study went on to find that these students distress significantly increased above average during their first year of law school, rocketed to alarming levels during law school and never returned to pre-law school levels even two years after graduation.17 Although, it should be noted, that all of the studies referred to above have been conducted overseas the reported rate of depression closely reflects the results of a recent Australian
Ibid, at 233. The study revealed that 26% of lawyers have used cocaine at some point whereas 12% of the general population has used cocaine. However other studies suggest that the incidence of chemical dependency in legal professionals might be as high as 50% higher than for the general population; Micheal A. Bloom & Carol Lynn Wallinger, Lawyers and Alcoholism: Is It Time for a New Approach?, (1988) 61 Temp. L. Rev. 1409 citing Maher, Addicted Professionals: A Growing Problem, (1988) PA. L. J. Rep. at S1. 10 Beck et al, above n8, at 3. 11 Susan Swaim Daicoff, Lawyer Know Thyself, (2004) at 8. In 12 Johns Hopkins University study conducted in 1991; see Paula A. Franz, Back to the Future: Reclaiming Our Noble Profession (1994) 25 Seton Hall Law Review 488. 13 See Leonard D. Eron & Robert S. Redmont, The Effect of Legal Education on Attitudes, (1957) 9 Journal of Legal Education 431 (study found that law students felt more stress associated with academic demands and more stress related to personal reactions to the academic environment than did medical students, at 520-521), Roseanna McCleary & Evan L. Zucker, Higher Trait- and State-Anxiety in Female Law Students Than Male Law Students, (1991) 68 Psychology Reports 1075 (study found law students at Loyola University School of Law in New Orleans were significantly more anxious than undergraduate students and Karin F. Helmers, Deborah Danoff, Yvonne Steinart, Marco Leyton, & Simon N. Young, Stress and Depressed Mood in Medical Students, Law Students and Graduate Students at McGill University, (August 1997) 72 Acad. Med. 708 (study found Canadian law students were significantly less vocationally satisfied, worked against deadlines more often, and were more depressed and anxious than compared to people in general). 14 Stephen B. Shanfield & G. Andrew Benjamin, Psychiatric Distress in Law Students, (1985) 35 Journal of Legal Education 65 (study revealed that 12% of law students were depressed enough to warrant psychiatric evaluation and intervention compared to 3-9% of adults in Western civilized nation). 15 American Association of Law Schools (AALS) Committee Report, Report of the AALS Special Committee on Problems of Substance Abuse in the Law Schools, (1994) 44 Journal of Legal Education 35. 16 G. Andrew H. Benjamin, Alfred Kazniak, Bruce Sales & Stephen B. Shanfield, The Role of Legal Education in Producing Psychological Distress Among Law Students, (1986) Am. B. Res. J. 225. 17 Ibid.
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study18 suggesting that there is great similarity in the levels of mental ill-health in the Australian legal profession and perhaps also law schools.

Why is there a problem?

It is easy to identify the existence of pressures both in law school and legal practice that could be blamed for the mental ill-health of law students and lawyers. It is also true, however, that similar pressures can be identified in just about any existing course, job or profession. Pressure or stress is an inescapable part of everyday life. It is not unique to the law. What does appear to be unique to the law, however, from the studies outlined above, is that lawyers are more vulnerable to mental ill-health than any other profession. The question is why are lawyers more vulnerable to mental ill-health? The studies suggest that while certain personality types may be attracted to a legal career19 the experience of both law school and legal practice serve to promote and reinforce particular personality traits that are not generally conducive to good mental health. Further, those lawyers who, for whatever reason, do not adopt such personality traits, that appear to be common among their peers, are likely to feel isolated and alienated and, as such, are perhaps even more vulnerable to mental ill-health.20
What is the lawyer personality?

Various studies have revealed that lawyers tend to be more competitive, aggressive and pessimistic than other people.21 Lawyers also tend to be slightly more introverted and overwhelming prefer thinking over feeling.22 Spouses of lawyers frequently complain that their lawyer partner cannot switch off lawyer mode at home.
Learning to think like a lawyer

The lawyer personality appears to take root in law school. The main, almost exclusive, aim of law schools is to inhere in students the process of legal reasoning that is how to think like a lawyer. Law students are trained to identify and analyze legal rights and, in this analysis, are discouraged from considering the interpersonal, moral or psychological issues involved. The ethics of care movement has shown how unhelpful this rights based approach to solving legal problems can be for clients.23 This way of thinking, however, is also as equally unhelpful to the students themselves who learn to devalue emotions to the detriment of their personal relationships and own well-being. Ethics of care scholars have also noted that for many lawyers

Annual Professions Survey, Research Summary, April 2007. The BeyondBlue Beaton Consulting Report revealed that lawyers were 2.5 times more likely to suffer from depression than the rest of the population. 19 See Daicoff, as above n11, at 51. 20 Daicoff, as above n11, at 155. 21 Ibid, chapter 2. 22 Ibid. 23 Denis P. Stolle, David B. Wexler & Bruce J. Winick, Practicing Therapeutic Jurisprudence: Law as a Helping Profession, (2000) at 26-27 and Steven Keeva, Transforming Practices, (1990) at 99-109.

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their personal morality is not entirely subsumed by professional morality causing distress for the lawyer when the two clash in legal practice.24
Gladiatorial culture in legal practice

The lawyer personality seems to be best played out in legal practice and from my own experience this seems particularly true of the practice of barristers. The rights based thinking of competitive lawyers, couched in an adversarial system, promotes an aggressive, gladiatorial culture. This culture increases lawyers vulnerability to mental ill-health by isolating them and discouraging them from seeking assistance for fear that this would amount to an admission of weakness that would be exploited.

Why should we do something?

In a world of limited resources it could be argued that assistance should not be offered to lawyers for two reasons. First, lawyers are well educated people who are also likely to be highly motivated and, compared to the rest of the population, well-resourced. Such individuals are well placed to access assistance for themselves. Resources that could be used to assist lawyers could be better applied to those in greater need such as, for example, Legal Aid. Second, it could be argued that lawyers struggling with a mental illness may lack the requisite fibre for legal practice.25 It has been noted that legal practice is not a sunny day exercise and that as such lawyers must be able to deal with stressful situations.26 Those with a Darwinian view of legal practice could well argue that assistance should not be given to struggling lawyers because this assistance provides a crutch to such lawyers enabling them to stay in a profession to which they are ill-suited. Both arguments overlook nature and extent of mental illness in the legal profession. As noted above mental ill health is endemic in the legal profession. Rates of mental ill health are reported to be significantly higher in the profession than in the general population. Both legal training in law schools and the culture existing within the profession are argued to be at the root of this mental ill health. It follows that in such an unhealthy environment all lawyers are vulnerable to mental ill-health. It also follows that leaving individual lawyers to access help for themselves alone does nothing to address the underlying cause of widespread mental ill-health in the profession. Two very different rationales can be identified to argue that resources should be applied to tackle the underlying causes of mental ill-health in the profession; one purely practical and the other entirely moral.

24 25

Rand Jack and Dana Crowley Jack, Moral Vision and Professional Decisions, at 110-120. Gregory v Queensland Law Society Inc [2001] QCA 499, [27]. 26 Ibid.

Happy lawyers make good lawyers

Although to date no empirical data exists establishing a direct link between mental ill-health and poor ethical decision-making or lower professional standards one can be readily inferred. Very few complaints received by the Legal Services Commissioner of Victoria during the last year involved deliberate acts of dishonesty by lawyers.27 The vast majority of complaints made by consumers of legal services (after costs)28 concerned general negligence by lawyers much of which is basic bad case handling.29 This is followed by complaints about the failure of lawyers to communicate with their client such as failing to return phone calls and provide progress reports.30 These figures are, perhaps not unsurprisingly, largely reflected in the claims reported to have been made to the professions insurer.31 As already outlined depression is rife in the profession and the symptoms of clinical depression provide a close fit with the kinds of complaints most frequently made about lawyers. Common symptoms of depression include working more slowly, making mistakes more often, unable to concentrate, absenteeism and unable to delegate tasks.32 Further, while a complete review of the case law is yet to be undertaken there is, at a glance, no shortage of disciplinary cases in which the defendant lawyer has pointed to significant stress, or mental ill-health, as contributing to, or largely responsible for, his or her misconduct.33 It is plainly obvious that if law schools, professional associations and regulators aim to promote good ethical decision-making and high professional standards in lawyers then they must also promote good mental health. A related issue to poor ethical decision-making and lowered professional standards is the reputation of the profession. Although in most cases lawyers suffering from poor mental-health are unlikely to receive the kind of media attention that Peter Hayess demise did but when the media does choose to spotlight lawyer mental health then, as shown by Peters example, the damage done to the reputation of the profession can be great. Accordingly, public confidence in lawyers and the administration of justice cannot help but be diminished.
A moral duty to care?

In deciding what the moral thing is to do, as opposed to the most practical thing, in relation to the mental health of lawyers we might best be guided by ethics of care. It is the ethics of care movement that has warned us of the dangers inherent in the orthodox, clinical, rights based

Legal Services Commissioner Annual Report 2007, at 21. The number of complaints received by the LSC about dishonest or misleading conduct of lawyers was 134, duress, pressure or intimidation 79 and sexual impropriety 1. 28 Ibid. The LSC received 898 complaints about costs. 29 Ibid. The LSC received 468 complaints about general negligence of lawyers. 30 Ibid. The LSC received 209 complaints about the failure to communicate by lawyers to clients. 31 Legal Practitioners Liability Committee 2007 Annual Review at 7 and 13. 32 Melanie Naylor, Depression in Lawyers, (October 2004) Brief 12. 33 See for example Gregory v Queensland Law Society Inc [2001] QCA 499, A Solicitor v Law Society of NSW (2004) 216 CLR 253 and Quinn v Law Institute of Victoria [2007] VSCA 122.

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approach by lawyers to legal problems. Further, ethics of care itself provides an approach that might be described as the polar opposite of the rights based approach. In contrast to the rights based approach, the ethics of care approach asks us to take into account the web of interpersonal relationships both for ourselves and clients in making decisions, not about absolute rights, but about how we can best avoid harm.34 It is this approach that impresses upon us that legal practitioners owe duties to each other as much as they do to their clients and the administration of justice. These duties extend beyond the mere simple duty of professional courtesy but to avoid causing personal harm to other legal practitioners. The training by law schools of students to think like a lawyer and to devalue emotions and interpersonal relationships is harmful to students. It is, therefore, incumbent on law schools to provide guidance to students as to how to reconcile their personal morality with their professional duties and ways in which they can develop habits that will assist them in maintaining good mental health. Similarly, it is incumbent on professional associations and courts to seek to change the existing culture within the profession and to promote a culture that is less harmful and more helpful to the mental well-being of practitioners. Regulators can also play an important role in changing the culture of legal practice and in assisting practitioners. Many practitioners are reluctant to seek help from professional associations because they are nervous that this might bring them to the attention of the regulator and place their practicing certificate in jeopardy. Likewise professional associations are nervous about offering help to members suffering from mental ill-health because of uncertainty about whether and when they are under a duty to notify the regulator about a member who may be mentally unwell.

Conclusion
At the moment, at least in Victoria the recent BeyondBlue research and memory of Peter Hayess death has spurred the Bar, and its solicitor counterpart the Law Institute of Victoria, into action. This momentum should not be lost.

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Jack and Jack, as above n24 and Carrie Menkel-Meadow, Portia Redux: Another Look at Gender, Feminism and Legal Ethics in Stephen Parker and Charles Sampford, Legal Ethics and Legal Practice: Contemporary Issues, 25, at 39.