In 2017, the ABA proposed a new Model Continuing Legal Education (MCLE) Rule that recommends mandatory mental health programming. Further, in the ABA’s Well-Being Report, also published in 2017, the task force commissioned to make recommendations, broadly recommended the following:
“ABA Model Rule of Professional Conduct 1.1 (Competence) states that lawyers owe a duty of competence to their clients. “Competent” representation is defined to require “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” We recommend revising this Rule and/or its Comments to more clearly include lawyers’ well-being in the definition of “competence.””[i]
A lawyers’ well-being encompasses more than just mental fitness to provide legal advice. A lawyers’ well-being should include physical wellness and emotional stability. By broadening the professional rule’s definition of competence, the ABA embraces this concept of viewing a lawyer’s abilities to represent a client and practice law with a broader lens to include the lawyer’s actual mental health, physical wellness, and overall attorney well-being. The state authorities for approval of CLE should recognize the broadened definition of competence and then authorize providers to teach attorney well-being for credit inclusive of physical, mental, and emotional competencies.
The Model Rule requires lawyers to earn at least one credit hour every three years of CLE programming that addresses the prevention, detection, and/or treatment of “mental health and substance use disorders.” The Model Rule needs to be adopted nationwide by all states. California and Illinois are examples of state bars that already have such requirements.
In Illinois, where I am registered to practice law, 30 CLE hours are required to be reported every two years. Of these thirty hours, six must be under the category of professional ethics, as opposed to general CLEs. Of these six now, one must be for diversity, and one must be for mental health/substance abuse. This is a step in the right direction.
Now that Illinois has implemented this, I would recommend that our state bars take things a step further. The category of professional ethics credits can be expanded to cover more areas of attorney well-being. In terms of physical competence, could one credit hour be given for attending an annual physical with your own medical provider? Or attending a one hour yoga class?
The current offerings in this category are replete with mindfulness CLE hours, which is a good thing and a step in the right direction. However, because the concept of mindfulness has been approved as a sanctioned CLE credit hour, the unfortunate effect has been an overdoing of certain practices within this concept. For example, the exercise of eating a raisin mindfully during a CLE should be discontinued. This exact same exercise was offered in two different online CLE classes I took during this current reporting period. There is so much more out there! Mindfulness can be taught in so many different ways. To offer the same exercise is a shame. Not to mention the concept of the exercise is not that great to begin with, so why it is being repeated is mindboggling.
Mindfulness for me is best practiced with movement, as I have mentioned, like yoga. Why can’t CLEs be offered on the topic of mindfulness but with a yoga instructor leading the one hour class? This would be beneficial to the attorney both physically and mentally. I think the statistics on attorney well-being show us that there is a need for addressing stress both physically and mentally. The process of introducing alternative methods of dealing with stress to attorneys needs to be done and why not reward an attorney with a CLE credit hour for doing so?
The profession as a whole needs to provide alternative stress-relieving opportunities for attorneys in general. In particular, providing education on alternative stress-relieving practices like exercise, yoga, and even how-to-use an ergonomic walking desk would be helpful for all attorneys. One tangential effect could be even to divert attorneys from drinking and drugs as a method of stress relief. Although, the topic of substance addiction absolutely needs to continue to be addressed separately and fully through CLE. This is evidenced by Illinois’ requirement for at least one hour of the thirty per reporting period to cover substance abuse. I would even argue that more than one hour should be required. Illinois could attempt to require two hours in this area to cover drinking and drug abuse separately.
Overall, we as attorneys, have a duty to our fellow attorneys to try to help one another. If this means petitioning to have an expanded definition of competence to allow for CLE to be provided on more topics that can actually help attorneys physically, then so be it. We need to care about each other. There is only so much advising that a lawyer can do for a client, if she is not taking care of herself. The CLE credit system can be utilized as a motivational way to incentivize attorneys to address their well-being while being rewarded with approved CLE hours. This would be beneficial to all.
© 2020 Megan Davia Mikhail
[i] The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, August 14, 2017, available at: https://www.americanbar.org/content/dam/aba/images/abanews/ThePathToLawyerWellBeingReportRevFINAL.pdf