Lawyers as Counselors: Preparing Law Students and Practitioners to Face Clients’ Mental Health Concerns

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Every attorney is all but guaranteed to encounter clients with either acute or chronic mental health conditions that will have some bearing upon their case – from their capacity to simply convey the facts of their situation in an intake interview to the presentation of an insanity defense to the possibility of having to initiate involuntary commitment proceedings.  Clients are often in the midst of major life stressors, severe trauma, or grief.  They may be plagued by a substance use disorder, mood disorders, or personality disorders that may or may not have been formally diagnosed and for which they may or may not have ever received any professional treatment.

In an interview with the Campbell Law Observer, Dr. Jeremy Enzor, a psychotherapist licensed in both North and South Carolina, explains, “Clients don’t seek counsel, legal or mental health, because everything in their life is flowing effortlessly.  Not every mental health patient is going to have legal problems, and not all clients seeking the services of attorneys are going to have mental health struggles; however, the overlap between the two is substantial and should be anticipated across our respective professions.”

Prevalence data from leading government and professional organizations substantiates the high likelihood that an individual seeking legal counsel may also be facing mental health challenges in some aspect of their life.

The National Alliance on Mental Illness, the National Institute of Mental Health, the Substance Abuse and Mental Health Services Administration within the United States Department of Health and Human Services, and the American Psychological Association present consistent data on the prevalence of mental illness among adults in the United States:

• Approximately 18.5 percent of the adult population will experience mental illness in a given year.
• Less than half of those with a mental illness have received treatment within the past year.
• Nearly half of the population will develop at least one mental illness during their lifetime.
• Among the 20.2 million adults with a substance use disorder, over half have a co-occurring mental illness.
• Roughly 70 percent of youth in the juvenile justice system have at least one mental health condition.
• Mood disorders, such as major depression, are the third most common cause for hospitalization for Americans between the ages of 18 and 44.
• High rates of comorbidity (between 47.9 and 80.6 percent) exist among eating disorders and anxiety disorders.
• Suicide is the second leading cause of death for people between the ages of 15 and 24.

Engagement with the legal field, even for seemingly unrelated matters, may exacerbate clients’ mental health symptomology.

Certain legal entanglements are overtly stressful – being sued, being the victim of a crime, being responsible for high-stakes contract negotiations – but even seemingly ordinary tasks with very low levels of complexity can induce negative mental health outcomes for some clients.

“Acute stress alone can absolutely reach clinically significant levels,” Dr. Enzor states, “and attempting to navigate legal matters could exacerbate otherwise controlled mental health symptoms, particularly anxiety and depression. Drafting an ordinary last will and testament may not register as an extraordinary event in the life of an attorney; however, the client is confronting their own mortality.”

This underlying potential for psychoemotional distress among clients, with or without a pre-existing mental health condition, presents significant justification for attorneys in practice and attorneys in training to more closely examine the nuances of common psychopathologies within the populations they serve, to capitalize upon educational opportunities on mental health subject matter, and to develop an appreciation for the broad scope of responsibilities that fall under the umbrella of “attorney as counselor.”

The Model Rules of Professional Conduct support the assertion that the client-lawyer relationship would be better served by a greater understanding of mental health.

The first two sections of the Model Rules of Professional Conduct, encompassing twenty-one distinct rules, address a multitude of considerations regarding the client-lawyer relationship and the role of attorney as counselor.  Most on-point with the issue of client mental health are Rule 2.1 and Rule 1.1.

Model Rule 2.1 uses the word “advisor” in explaining that, “[i]n representing a client, a lawyer shall exercise independent professional judgment and render candid advice.  In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”

Model Rule 1.1 speaks to competence: “A lawyer shall provide competent representation to a client.  Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

“The mental illnesses that large segments of the population endure on a daily basis don’t generally rise to the level of diminished capacity as lawyers know the concept,” explains Dr. Enzor.  “However,” he continues, “that does not mean that depressive or anxious symptomology won’t impact the relationship between the lawyer and the client.  They very likely will.  Severe and persistent mental illnesses, such as personality disorders, psychotic disorders, or various cognitive impairments could do so to an even greater extent without ever meeting legal thresholds triggering any form of special treatment by the court system.”

In order to practice competently and to render relevant advice, it is incumbent upon attorneys to familiarize themselves with fundamental concepts of mental health, particularly given the prevalence data that has been thoroughly monitored and analyzed by authorities in the mental health field over the past several decades.

It is also important to note that such pursuits must extend beyond determinations of competence, diminished capacity, insanity, or commitment proceedings.  This is imperative due to the misalignment between the definitions associated with mental health issues utilized by the legal field and the current diagnostic criteria utilized by mental health professionals.

For example, in law, specifically the law of wills and trusts, insane delusion is defined by holding a steadfast belief in something that has no reasonable foundation in reality that persists despite evidence to the contrary; however, in mental health, delusions and delusional disorder are part of a larger spectrum of conditions that includes schizophrenia and other psychotic disorders that are characterized by not only delusions as defined in a legal setting, but also by “hallucinations, disorganized thinking, grossly disorganized or abnormal motor behavior, and negative symptoms” graded on a four-level scale of severity. An individual could quite possibly experience an abundance of symptoms of a mental health condition along this spectrum without ever satisfying the apparently corresponding legal definition; therefore, greater academic exposure to the concepts of mental health that permeate the law could have meaningful implications for establishing both a client’s mental capacity in a matter congruent with modern conceptualizations of mental health and mental illness, but also in cultivating a greater rapport in the relationship between attorney and client.

The study of mental health is vastly different from the study of mental health law.

Programs of legal education commonly offer courses in client counseling; however, the objectives of such courses impart valuable lawyering skills rather than training in mental health counseling. The description of a course on legal interviewing and client counseling offered by the University of Pennsylvania Law School highlighted the following skills: “effectively formulating questions and actively listening, identifying legal problems and clarifying client objectives, identifying potential strategies and working collaboratively with clients, and communicating difficult information to clients.”  Course descriptions from other law schools (e.g., Little Rock, Pepperdine) present similar descriptions for comparable courses.  While all essential to the ultimate success of an attorney, and while certainly client-focused, a mental health component to client counseling is not readily ascertainable from the information provided online.

Courses in mental health law are also offered by a selection of law schools (e.g., University of Pittsburg, Columbia); however, rather than presenting issues of psychopathology relevant to the legal field, these courses emphasize the constitutional rights of the mentally ill, the nature of involuntary civil commitment, rights to treatment and to the refusal of treatment, and the relevance of mental health to the death penalty.  As with client counseling, these matters of law and policy are unquestionably important when managing cases with a mental health component; however, a person-centered element of working with clients who happen to have mental illnesses, which may or may not be implicated in their legal dilemmas, appears to be absent.

Generally, law students do not receive any focused preparation for working with individuals suffering from mental health problems, regardless of how the client’s symptomology may impact any facet of either the attorney-client relationship or the client’s case.  A limited collection of legal concerns related to mental health are typically reviewed alongside other topics (i.e., discussion of insanity considered among all other potential criminal defenses); however, there does not appear to be any significant mention of, for example, how to effectively and competently work with a depressed client on a contract negotiation, how to handle the divorce of a client with an eating disorder, or what, if anything, to do differently to support a bipolar client in a property dispute.

Dual-degree programs offer opportunities for law students to supplement their legal education with dedicated training in mental health.

Dual-degree programs are highly prevalent across the landscape of legal education with some institutions providing dozens of possibilities for law students to enhance their credentials through complementary educational pursuits.  Among the most common are masters-level programs in various business and finance specializations.  Public administration, economics, international studies, public health, and medicine are also frequently seen at both public and private institutions, from top-tier programs to those of more dubious reputation.  Some dual programs can be fully completed within the typical three-year duration of a J.D., while others may increase the length of a student’s tenure in graduate school for another year or two, perhaps longer for dual programs in medicine.

Less common are dual-degree programs in the mental health field.  Four examples of law schools that do offer this type of programming are:

Liberty University – JD/Master of Arts in Human Services Counseling
St. Thomas University– JD/Master of Science in Marriage and Family Counseling
Valparaiso University– JD/Master of Arts in Clinical Mental Health Counseling
Regent University– JD/Master of Arts in Counseling

It is noteworthy that, for those considering expanding their legal education through dual-enrollment opportunities, numerous law schools offer dual-degrees combining a JD with a Masters of Social Work, which is presumed by many to fall within the scope of the field of counseling; however, social work is, in fact, a distinct field of study requiring different coursework from a different theoretical background and ultimately leading to different licensing requirements for licensed professional counselors, licensed mental health counselors, and licensed clinical social workers.  As with attorneys, licensure requirements and restrictions vary by state in each of these professions.

Additional licensure as a mental health professional is not required to achieve a functional understanding of mental health as applicable to legal practice.

Depending upon a law student’s individual specialization goals, an additional degree with a concentration in mental health may not be necessary; however, every law student could benefit from exposure to psychopathology, abnormal psychology, or similar subjects in the social and behavioral sciences within the context of their law degree.

Integration of mental health subjects into existing programs of legal education has the potential to be achieved with relative ease. One possible avenue would be to incorporate a mental health component into courses on client counseling, which are already inherently client-focused.  Alternatively, new courses could be developed that specifically address mental health concepts and constructs within the context of the legal system.

Dr. Enzor suggests, “cross-listing existing courses across multiple disciplines is already a common practice for most if not all institutions of higher education based upon the known overlaps that span related professions.  One that springs to mind is a course in research methods for the social sciences that could be completed under any major area’s designation – PSY, SOC, CJ, POL – with all students combined in a mixed section learning the same content simultaneously.  A dual-listed course available to both masters-level counseling students and to law students would be beneficial to the interests of both fields and could facilitate more effective discourse throughout our professional networks as we collaboratively strive toward serving our clients’ needs.”

For professionals, continuing education opportunities emphasizing mental health topics would promote a greater understanding of these nuanced conditions, either as lawyer-only events or in partnership with mental health professionals serving the same population.

Working with our colleagues in the mental health field supports positive outcomes, facilitates ethical decision-making, and mitigates risks.

By increasing cooperation and strengthening the bonds between law and mental health, both academically and in practice, the health and wellbeing of both the client and the attorney are better protected from harm.  A final word from Dr. Enzor: “While it is a malignantly pernicious myth that all those who suffer from mental illness are either violent or dangerous, it would be foolish to deny the fact that some psychopathologies, such as Intermittent Explosive Disorder or Conduct Disorder in young people, are associated with heightened aggression and hostility, among other harmful behaviors.  Lawyers who understand how to interact with these clients in a delicate, person-centered fashion are less likely to alienate their client, to unintentionally harm their client’s interests, or to experience some form of physical or verbal altercation.”

Ethical decision making includes determining how to manage the daily interactions attorneys have with their clients, and some clients may present with sensitivities that are not readily apparent to the untrained eye; therefore, increased awareness of mental health and mental illness could also be a mitigating factor that lowers the odds of a malpractice claim from an otherwise misunderstood client.

Through increased preparation to adopt the role of lawyer as counselor, not only will attorneys be better able to meet their client’s unique needs within their specific life circumstances, lawyers will also be more effective in carrying out their fiduciary duties under the Model Rules of Professional Conduct, and can make primary contributions to lessening the mental health stigma that has permeated legal discourse. Perhaps the need for a referral to a mental health professional could be more quickly recognized.  Perhaps the experience of having to engage with the legal system could become less daunting and less anxiety-inducing.

The clear route to achievement of these and related goals is the early recognition of the importance of mental health in the practice of law.  By introducing law students to key concepts of psychopathology before they enter professional practice, a foundational knowledge will be established that will not only contribute to the betterment of issues featured here, but may also help in developing intrapersonal insight that could also reduce negative mental health outcomes for lawyers, too.