You already know this, but it bears repeating. We attorneys are susceptible to mental health issues because of the strain the practice of law puts on our minds and our bodies.
A 2016 study of roughly 13,000 attorneys and judges conducted by the American Bar Association’s Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation found that 28% of the responding attorneys experienced depression, 19% experienced anxiety and 23% experienced stress. According to a new study, 0.7% of the surveyed attorneys suffered from “serious” mental illness, while 6% of the surveyed attorneys had bouts of “moderate” or “severe” mental illness.
(With over 1.325 million attorneys in the U.S. according to the ABA, if the latter study’s numbers held up, there’d be almost 89,000 U.S. attorneys suffering from “moderate,” “serious,” or “severe” mental illness. To put that number in perspective, there are roughly 89,000 attorneys in Pennsylvania and New Jersey combined.)
Regardless of the trust you put into those survey findings, there’s a good chance you have first-hand experience with mental health issues brought about by working in the legal profession. Perhaps a colleague or peer has struggled with their mental health. Or, perhaps you have been struggling with your mental health due in part to a combination of ever-increasing responsibilities, billable hours, separation from coworkers, and/or general anxiety brought on by the state of the world today.
For attorneys struggling with mental health issues, those issues may prevent them from working at or near the level they were working at before the issues arose. Perhaps they have difficulty reading and analyzing court opinions and deposition transcripts. Perhaps a motion that would normally take them six hours to research and write now takes fifteen. Or, perhaps they have difficulty speaking with clients and connecting with colleagues.
If this happens, an attorney may consider taking a leave of absence to focus on their mental health issues. If they do, they will want to consider filing a disability claim with their disability insurer so they can protect their income stream and continue receiving income while they are on leave.
If you or an attorney you know is dealing with mental health issues and contemplating filing a disability claim concerning those issues, here are three things you or they need to know.
The disability process requires humility, vulnerability, and getting out of your own way
Traditionally, attorneys avoid acknowledging their shortcomings or admitting they have any. But proving to an insurance company that you have a mental health issue that has rendered you disabled so that you qualify for benefits under your disability insurance policy will require you to do just that. You will need to show that there has been a deterioration in your abilities.
Generally, you will have to show deficiencies in your ability to (i) concentrate, (ii) maintain persistence in, and the pace of, your work, and (iii) interact with people, including your coworkers and clients. You will generally need to show behavior that is consistent with a pattern of mental health issues. Additionally, you will generally need to show that your mental health issues contributed to a decline in your lawyering abilities, not that your employment contributed to your mental health issues.
But unlike a broken arm or a sprained ankle, mental health issues cannot be proven by objective evidence. So while you might want to submit your medical records from all of your providers, and get separate opinions from multiple treating physicians in connection with your claim, there’s no single objective test to determine if you are, for example, suffering from depression.
Instead, persuasive proof of your disability will likely be shown by subjective evidence focused on gauging your symptoms and their impact on your ability to practice law. This evidence may come in the form of sworn statements from your loved ones and coworkers that explain how your mental health issues are preventing you from operating at your peak. Additionally, testimony from a vocational expert stating you are unable in your current condition to work as effectively as you would normally could be helpful. For many attorneys, this material will be difficult to read. But it is for the best.
On a related note, filing a disability claim will require you to get out of your own way and ignore some of your instincts. For example, continuing to work despite your mental health issues and your doctor’s orders asking you to do otherwise may cut against your case. So too may picking a prospective date down the road at which point you will consider your mental health issues to finally be disabling and, as a result, decide to step away from your day-to-day duties.
The post-denial litigation process will be shaped by the disability insurance you have
When you file a disability claim regarding your mental health issues, your disability insurer will investigate the claim and then grant it or deny it. If it denies the claim, you can file an administrative appeal. If your appeal is denied, you can sue the insurer. But the nature of that lawsuit and the litigation process that follows will be shaped by the disability insurance you have.
If you are making a disability claim under the disability policy you have through your employer, that litigation will be governed by the Employee Retirement Income Security Act of 1974. Because of that, you will only be able to recover the benefit available to you under your policy, along with interest and, possibly, attorneys’ fees. You will not be able to seek punitive damages. Nor will you have a right to a jury trial. Instead, your case will be decided on cross motions for summary judgment. To prevail, you will need to convince a judge that the insurer acted arbitrarily and capriciously when it denied your disability claim. And, perhaps most problematic, the record in the litigation will be limited to the record you built when you submitted your initial claim to your insurer.
If you are making a disability claim under a disability policy you purchased privately, your litigation strategy playbook will have more pages. The case will probably involve a breach of contract claim and, depending on the insurer’s actions, an insurer bad faith claim. You will have the right to a jury trial, the right to put on a case to that jury and to develop a full evidentiary record, and the ability to seek punitive damages.
(Given this difference in the litigation process, for some attorneys, the flexibility they would have with which to challenge an insurer’s denial of their disability claim justifies purchasing disability coverage on their own and not through their employer. For other attorneys, the benefit of this flexibility does not outweigh the cost in time of researching and securing private disability insurance, particularly if they believe they are unlikely to suffer from a mental (or physical) health issue for which they would seek disability benefits. While only you can make the “right” decision for you and your family given your circumstances, you should know how the disability insurance policy you have dictates your post-denial options).
Your disability coverage may end after two years
If you are successful in securing disability coverage—with or without litigation—you may only receive two years’ worth of payments in connection with your attorney salary. That’s because the vast majority of disability insurance policies change the definition of “disability” after the beneficiary has received benefits for two years.
Most policies define “disability” as the beneficiary not being able to perform the material duties of their occupation. This is known as the “own occupation” period, and commonly spans the first two years benefits are paid under a policy. As long as your mental health issues prevent you from performing the material duties of an attorney during this period, you will be deemed disabled and will receive disability benefits.
But after those first two years, the definition of “disability” changes. Your insurer will likely want to see if you can perform the material duties of any occupation, and will thus likely institute a claim review to see if you could work in any other occupation—known as the “any occupation” standard—even if your mental health issues persist. This could mean working as a paralegal or in an administrative position within your law firm, or even in an occupation outside the law. If the insurer determines you can work in any occupation after the first two years you receive benefits, your benefits will cease.
Additionally, many disability policies have a 24-month limit on disability benefits for mental health impairments. Regardless of your ability to work as an attorney or in any other occupation, your benefits may cease after two years for this reason as well.
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As an attorney, you may be of the view that confronting mental health issues and admitting you have a problem are signs of weakness. But if your abilities and your legal practice are suffering, and you are making mistakes because of your mental health issues, you are hurting yourself, your colleagues, and your clients by ignoring signs that these issues are affecting your livelihood (and likely, your personal life).
If you decide it is time to step back from your legal practice to address your mental health issues, you should consider filing a claim with your disability insurer. Hopefully, this article helps prepare you for that process so you can enter it with your eyes wide open.
Michael J. Parker is a partner at Pond Lehocky Giordano LLP, the largest workers’ compensation and disability law firm in Pennsylvania, and leads the firm’s long-term disability department. He can be reached at mparker@pondlehocky.com.
Reprinted with permission from the April 12, 2022 edition of The Legal Intelligencer © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.
