Can Improving Attorney Well-Being Solve Law’s Diversity Problem?

well-beingAttorney (lack) of well-being has become a national dialogue.  The National Task Force on Lawyer Well-Being and its groundbreaking Report “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change,” (“the Report”) is less than a year old.  The momentum it created continues to grow.

I’ve written about this report before, but want to revisit the recommendations through the prism of diversity and inclusion.

What does building a legal culture premised on attorneys living a life of well-being have to do with diversity and inclusion?  A profession that actively promotes the well-being of its members will also foster an environment that supports a diverse and fully inclusive workplace.  In other words, perhaps the legal profession’s persistent diversity and inclusion problem is rooted in a wider culture promoting drinking and aggressive behavior.

Well-Being and D&I Initiatives are Symbiotic

Historically, society’s stereotypical image of the successful lawyer, like a hero in Western movies, is a hard-charging, heavy-drinking, macho man.  A culture of aggression or dog-eat-dog litigation, another hallmark of the stereotypical successful lawyer, can also be exclusionary.  Studies show that men tend to thrive in a competitive environment, whereas women tend to prefer to collaborate with their workplace colleagues. We know from personal experience that the more a female litigator is perceived as aggressive and hard-hitting, the more likely she is to be perceived as competent and successful. At the same time, there is evidence showing that women lawyers are more frequent targets of incivility and harassment. For many women, a lack of collegiality and respect leads to a toxic culture – which is corrosive and adds additional stress.

The Report calls upon all stakeholders in the profession to “Foster Collegiality and Respectful Behavior.”  The Report connects collegiality and respect with well-being and advocates for initiatives related to diversity and inclusion initiatives, including mentoring, to achieve this goal.

The authors note that a collegial and respectful workplace contributes to a person’s sense of connection and belonging and has a direct bearing on several of the different factors of attorney well-being. Having previously noted research that shows worker well-being in the form of engagement is linked to organizational success and a startling 68% of the workforce is not engaged, the Report recommends that all stakeholders urgently prioritize diversity and inclusion by stressing:

regulators and bar associations can play an especially influential role in advocating for initiatives in the profession as a whole and educating on why those initiatives are important to individual and institutional well-being. Examples of relevant initiatives include: scholarships, bar exam grants for qualified applicants, law school orientation programs that highlight the importance of diversity and inclusion, CLE programs focused on diversity in the legal profession, business development symposia for women and minority-owned law firms, pipeline programming for low-income high school and college students, diversity clerkship programs for law students, studies and reports on the state of diversity within the state’s bench and bar, and diversity initiatives in law firms.

Similarly, another relevant initiative that fosters inclusiveness and respectful engagement is mentoring. Research has shown that mentorship and sponsorship can aid well-being and career progression for women and diverse professionals. They also reduce lawyer isolation.  As we have written about before, those who have participated in legal mentoring report a stronger sense of personal connection with others in the legal community, restored enthusiasm for the legal profession, and more resilience—all of which benefit both mentors and mentees.

In addition, recommendations directed to legal employers and bar associations also promote diversity and inclusion.  For example, the recommendation to enhance lawyers’ sense of control cites studies that demonstrate that high job demands paired with a lack of a sense of control breeds depression and other psychological disorders.  Research suggests that men in jobs with such characteristics have an elevated risk of alcohol abuse. The lack of autonomy and control over schedules is anecdotally reported as one of the reasons that women of child-bearing and rearing years choose to leave the profession.

Forced Cultural Norms Lead to Feelings of Exclusion

Legal workplace cultural norms that support high levels of alcohol consumption can reinforce tendencies toward problem drinking and stigmatize – or even ostracize – those seeking help. In the legal profession, social events often center around alcohol consumption (e.g., “Happy Hours,” “Bar Reviews,” networking receptions, etc.) and draw upon outdated traditions established at a different time, a time when there were few women or minorities in the workplace.  Men—white men—created activities that allowed them to connect with each other, socialize, and exchange ideas.  Typical activities include networking events serving alcohol and golf and other sports outings—usually also involving the consumption of alcohol. The Report encourages legal employers, law schools, bar associations, and other stakeholders that plan social events to provide a variety of alternative non-alcoholic beverages and consider other types of activities to promote socializing and networking. They should strive to develop social norms in which lawyers discourage heavy drinking, encourage healthy means of dealing with stress and incentivize others to seek help for problem use.

The same workplace norms that can reinforce tendencies toward problem drinking also can exclude women, people of color, people whose religious beliefs prohibit alcohol, people in recovery from a substance use disorder, and people who have obligations to care for children or parents.  Women who are pregnant or nursing, or under time constraints related to child or elder care, are unlikely to attend or feel welcome to attend such events.  Those whose religious beliefs forbid alcohol or those in recovery are also likely to feel uncomfortable attending such events. Then, when the excluded realize that such events lead to plum assignments and gate-tightening around “the in group,” some may feel demoralized and depressed.

By persisting with a drinking culture as normative for networking and socializing, the insiders and power brokers of the legal profession run the risk of excluding those faced with behavioral health challenges from events critical to professional advancement. Lawyers in recovery from substance use disorders are faced with either missing out on “book building” opportunities or with imperiling their hard-won sobriety. Knowledge that this culture predominates within the law, in and of itself, acts as a deterrent to pursuing sobriety. Those of us working within the lawyers’ assistance program community can attest that law students and young lawyers often will cite their concerns about damage to their advancement if they must forgo these social events as another reason to defer treatment for their disorder. Additionally, those in treatment for mental health disorders such as depression are often unable to drink alcohol because of adverse interactions with medication.

Double Stigma Related to Help-Seeking by Minority Lawyers

Although drug, alcohol and mental health problems are recognized by the medical community as behavioral health disorders, fear of stigma is still a significant barrier to attorneys seeking help for these conditions. Stigma is defined as a cluster of negative attitudes and beliefs that motivate the public to fear, reject, avoid, and discriminate.

Stigma results in exclusion, poor social support and increased isolation – a worsening of the problem. There is the social stigma, or a prejudice towards people with mental health and substance abuse issues. The law firm culture perpetuates the notion that showing vulnerability is weakness, and seeking help is weakness.  As a result, law firms have a culture of keeping things underground, a conspiracy of silence surrounds the issue of mental health or substance abuse problems.

There is also a perceived stigma. Fear of discrimination is the key barrier that prevents many people from revealing symptoms and seeking help.  People who have mental health or substance abuse problems may suffer from a perceived stigma, worrying about what other people might think.  For example, “If my firm knew, my ability to succeed here would be impeded or ended.”

There is also the double stigma that is faced by people in minority groups who often already feel pressure to “over perform” to overcome negative bias and prove that they “belong” at the firm.  A significant contributor to well-being is a sense of “organizational belongingness” (feeling personally accepted, respected, included and supported). A weak sense of belonging is associated strongly with depressive symptoms.

Another type of stigma is at play: there can be a strong cultural stigma associated with seeking counseling or help.  Research shows that racial and ethnic minorities — as well as lesbian, gay, bisexual and transgender people — face greater barriers to getting help. Even after controlling for factors such as health insurance and socioeconomic status, ethnic minority groups still have a higher unmet mental health need than non-Hispanic Whites.

For example, one study found that Asian Americans had stronger negative implicit attitudes toward mental illness than Caucasian Americans.  Another study found that the cultural stereotype of the “strong black woman” promotes unflagging toughness, strength, self-reliance, and denial of self-needs, and has a distinct cultural history that is in tension with seeking help. Faith and spirituality can often complicate matters and a person’s faith community may not support seeking help (outside of prayer, etc.). Some minority groups and immigrant communities deal with a deep-seated distrust of the healthcare system.

These stereotypes and stigma impact how communities of color interact with, provide opportunities for, and help support a person with mental illness. It also impacts how a person in these communities experience and express his/her own mental health issue and whether he/she discloses these symptoms and seek help. And the cultural competency of professionals becomes an issue for our minority colleagues who do end up seeking help. It is often a challenge to find a counselor or resource that understands cultural issues that may play into addiction or mental health.

Lawyer Well-Being is Key to Diversity

The corrosive culture that promulgates incivility, overwork and alcohol as a badge of honor also is at the root of the profession’s diversity problem.  It’s a Gordian knot. But lawyers are problem-solvers.  By implementing the recommendations in The Path to Lawyer Well-Being, we are likely to not only have attorneys who are healthier and more productive, but also a profession that is more diverse and sustainable.

 

 

*Bree Buchanan, Director of the Texas Lawyers’ Assistance Program; Chair, ABA Commission on Lawyers Assistance Programs; Co-chair, National Task Force on Lawyer Well-Being co-authored a version of this article that was published in February 2018 in the American Bar Association Diversity & Inclusion newsletter of the Section on Litigation.

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Jayne Reardon
As a prior trial lawyer, Jayne leads lawyers to embrace the transformative possibilities of future law practice. As a prior disciplinary counsel, Jayne is passionate about promoting the core values of the legal profession. She is a graduate of the University of Michigan Law School and the University of Notre Dame. Jayne lives in Park Ridge, Illinois with her husband and those of her four children who are not otherwise living in college towns and beyond.
Jayne Reardon

5 thoughts on “Can Improving Attorney Well-Being Solve Law’s Diversity Problem?

  1. Fantastic article. Touches on many crucial points and issues.
    I am a Lawyers’ Assistance Program volunteer and luckily, LAP addresses many substance abuse and mental health issues…there, however is always a stigma. Hopefully, our efforts will change the way addictions are perceived by many in our profession.

  2. I attended two law schools and worked at a third. At all three, the student events centered around drinking. At the two law schools I attended, we were charged a student activity fee and it went, I think almost solely, to buying pitchers of beer at local bars. I rarely drink and I do not enjoy activities centered around drinking too much, so I did not attend, except for once, and what I witnessed was so shameful that I felt it harmed the reputation of our school and of the legal profession. It seemed as if the schools were set up to encourage alcoholism. // All that being said, I think the way to encourage diversity in the legal profession is to stop creating so many barriers to solo and small firm practitioners – which is where I think most women and minorities practice. Bar membership fees, CLE fees, etc., are set for people working at big firms where they are paid more or where the firm pays for it. Solo and small practitioners are constantly being battered with expectations that are more apt for those working at large law firms with financial and administrative support. If you want to have more women and minorities, make it possible for them to continue to practice law, rather than continually creating obstacles that cost them too much money and too much work. I also think small practitioners are the ones that bring the most legal help to the poorest people in the public, often providing services at very low cost or for free. While large firms may provide a few worthy causes with fancy pro bono help, solo and small practitioners are on the front lines, responding to the needs of real people without much money, day in and day out. And of course, it is often women solo and small practitioners who often help women in need of free or low cost legal help, and minorities who are helping those in their communities with the same. “Diversity” should not just be measured in terms of what any given large law firm employs, but of the diversity of ways to practice –is the profession of law inclusive enough that it embraces the mom who works solo from home part time? The minority person who struggles to pay rent on a storefront to be able to provide basic legal services to his or her community? Large law firms, because of how much they charge their clients, have mostly corporate or wealthy clients. No matter how many women and minority lawyers get stuffed into such a law firm, it is still meeting the legal needs only of the wealthy. If you want to meet the legal needs of the non-wealthy, which for the most part includes women and minorities, solo and small practitioners must be supported — which they are not at this time. Even such things as litigation deadlines are based around the idea that the lawyer is backed by a large law firm with assistants to do the legal research, writing, document preparation, and filing. Online legal ratings are based on who can pay the most for listings and ads. I don’t know of any fund that is giving money to solo and small practitioners to allow them to meet the legal needs of those whom they serve. That would be a major way to get and maintain diversity in the profession.

  3. Really? “The corrosive culture that promulgates incivility, overwork and alcohol as a badge of honor is also at the root of the profession’s diversity problem.” The first dictionary I ran across in our office is the American Heritage College Dictionary and it defines “promulgate” this way: “1. to make known (a decree, for example) by public declaration; announce officially. 2. To put (a law) into effect by formal public announcement.” The culture described may be corrosive, but that culture is not promulgated by anyone. It is, rather, much more the product of implicit bias and complicit failure to recognize how old behaviors may be negatively affecting people who are not “old white guys”, aka, “The Establishment.” If we cannot use accurate terminology to describe our professional issues, how can we find accurate terminology to discuss potential solutions or to prescribe the cure? The corrosive culture may be promoted by certain people, or prompted by certain behaviors, or encouraged by people who want the approval of others and want them to join the festivities, but it certainly, in my experience, has not been “promulgated” by anyone.

  4. Good article, but best part comments by Susan Basko. I agree that the burdens on small practices and young lawyers are not consistent with the realities in the stated goals of the Supreme Court Rules for practice, or the obvious lack of small practice attorneys having much of a voice in the State Bar Association.
    If we want to provide legal services at affordable cost to our communities, there must be a reasonable standard applied for the person(s) providing said services to the most vulnerable at a price the practitioner can afford, and feed her/his own family, pay his/her staff.
    It is disturbing that the primary focus in 2018 is not about serving clients as our oath taken requires, but is now mired in a culture of instant accusation of racism, sexism, bias, and unspoken fear. There has been a shift to acceptance of subjective perceptions as truth without careful analysis since i became a naive female attorney in 1979.
    The irony is that the greater the government regulation of “civility”, the less civil our society has become in many aspects. I didn’t expect to be accepted, and did expect to prove myself, shake off insults and personal attacks because i was 1) a young lawyer and hazing was standard regardless of sex, race, or politics; 2) I was used to being “picked on” as the only woman in many chapters of life then deemed inappropriate for females.
    It worked out well once I realized it wasn’t personal, just a period of adjustment for everyone to get used to me, trust me as an individual, not as some crusader bent on destruction of the academic, legal, and beloved bastions of male comfort, no girls allowed! Some of my fiercest critics who would now lose their jobs for demanding to know why I should have a place in a “serious class”, a court room, or meeting became great friends and supporters whom I treasure.
    It would be a great idea if we concentrated on return to the Constitution and Bill of Rights for guidance, as all of the later Amendments are based on the same basic concepts of civility in far more contentious, violent times when life was often short and brutal. The value of human dignity, free choice, and freedoms with great obligation were the wellspring of our nation’s hard won confederation. I am preaching, but take the criticism expected, as I believe there has been a huge disconnect from the general proposition that there can be no real freedom, diversity, equality, or fundamental fairness as intended without accepting obligations, rule of law, and personal responsibility for one’s own acts and those of his family as law may apply.

  5. I second Norrna Jann and Rooney. Furthermore , as over 50% of professional student enrollments ( not just law schools) are female and/or minorities, it would seem there will be an evolution to new normatives. (One may also engage in the concept of moderation in drinking when socializing, or is that too beyond the pale? Pun intended.)

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