The notion of being “politically correct” has been in the spotlight for a substantial period of time, consistently generating an ever-expanding list of terms that are better excluded from polite conversation. I’m sure we can all think of words and phrases that were perfectly acceptable, even preferred, during our respective childhoods that have since fallen out of favor, being deemed cruel, unkind, dismissive, or disparaging. I’m equally sure that we all know someone who, at some point, even in passing, has wondered if society is asking too much. They’re just words, after all. Right?
No. They’re more than words. If you’re looking at a restaurant menu, which hamburger would you order: the one that is 80 percent lean or the one that is 20 percent fat? As legal professionals, we know that how an issue is framed when it is first presented can make an immense impact on the perspective of the listener. Framing the issue lies at the very heart of legal advocacy and argument. The words we continue to say are those that will remain fixed in our consciousness, while the words we refuse to mention tend to fade from our societal attention.
Scientists working in the fields of cognitive psychology and linguistics tell us that the words we use can alter how we think about a concept.
The Sapir-Whorf Hypothesis takes this notion one step further. In its strongest and more controversial form, the Sapir-Whorf Hypothesis is known as linguistic determinism. It presents the idea that all human thought and action is bound by and is determined by the restraints of language. The more mild interpretation of the theory, and the version that is more widely accepted, is known as linguistic relativism. This version of the hypothesis suggests that language merely influences thought and behavior and that different languages influence people in different ways.
Regardless of whether one ascribes to a more deterministic or a more relativistic perspective when it comes to language, it is obvious that words have power. The legal profession absolutely knows this to be true—why else would we be so concerned about freedoms of speech, the admissibility of hearsay evidence, and the constitutionality of interrogations and confessions, but for the power of words?
Regrettably, that same level of care and concern about the things we say has not been extended to the way in which we discuss mental illness. The persistence of the term “criminally insane” is certainly illustrative of this, as are other misalignments between legal use and modern clinical terminology. Moreover, in the legal context, the words we use implicate more than political correctness. What we say could rise to the level of misconduct.
The Model Rules of Professional Conduct and supporting commentary provide a starting point in reconsidering the things we say about mental illness in the law.
Model Rule of Professional Conduct 8.4 defines what constitutes misconduct within the legal profession. Specifically, paragraph (g) states, “it is professional misconduct for a lawyer to . . . engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”
On the surface, Rule 8.4(g) reads as most any other anti-discrimination or anti-harassment rule, regulation, statute, or mandate; however, the commentary, particularly Comment 3, illuminates the potential for Rule 8.4(g) to reach not only how attorneys conduct themselves in their practice, but also how the profession itself conceptualizes a wide array of issues, particularly those associated with mental illness.
Comment 3 first explains that “[d]iscrimination and harassment by lawyers in violation of paragraph (g) undermine[s] confidence in the legal profession and the legal system.” Next, discrimination is defined as inclusive of “harmful verbal or physical conduct that manifests bias or prejudice towards others.” It is in this sentence where the importance of language, especially the language of mental illness, finds its relevance in preserving the dignity of the legal profession to safeguard public confidence in the system.
In the remainder of Comment 3, the term “harassment” is defined predominantly as it relates to inappropriate sexual words and actions. Finally, the comment instructs the use of “[t]he substantive law of antidiscrimination and anti-harassment statutes and case law” to guide the application of Rule 8.4(g).
The Americans with Disabilities Act and the Diagnostic and Statistical Manual of Mental Disorders jointly explain how the language of mental illness falls within the scope of Rule 8.4(g).
Of the protected classes listed in Rule 8.4(g), misconduct embodied by verbal manifestations of bias surrounding mental illness is captured within “disability,” as defined by the substantive law of disability.
The Americans with Disabilities Act (ADA) defines “disability” as “(a) a physical or mental impairment that substantially limits one or more major life activities of such individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment,” to be interpreted broadly in accordance with the purpose of the ADA.
In the same section, “major life activities” are defined to include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”
Turning to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM), most, if not all, of the dozens of disorders recognized as clinically significant and diagnosable conditions impede one or more of the major life activities encompassed within the ADA’s definition of “disability.”
The diagnoses grouped under the headings of neurodevelopmental, psychotic, bipolar, obsessive-compulsive, dissociative, somatic symptom, neurocognitive, and personality disorders, are among those that are most readily considered as limiting of major life activities in a manner most would assume to be a “disability” in the common understanding of the term. However, other conditions are more than capable of, and frequently do, disrupt eating and sleeping patterns, concentration, thinking, and the ability to engage at work, among other pervasive impacts on daily functioning. These include, but are not limited to, depressive, anxiety, trauma- and stressor-related, paraphilic, disruptive, impulse-control, conduct, substance-related, and medication-induced disorders. Furthermore, feeding and eating, elimination disorders, and sleep-wake disorders, all clearly, negatively impact several of the specified major life activities.
While every mental disorder faced by any individual may not present with symptoms that rise to the level of limitation envisioned by the ADA, enough conceivably and reasonably do that it is imperative for the legal profession to speak of mental illness with thoughtfulness, discretion, dignity, and respect, in compliance with Rule 8.4(g).
Discriminatory language has the capacity to hinder both equal protection and due process.
As quoted above from the commentary to the Rules, in the context of Rule 8.4(g), discrimination is characterized by manifestations of bias or prejudice, both of which are heavily intertwined with the types of social stigmas that persistently plague those suffering from mental health symptomology or disorders. Stigmas that, by definition, perpetuate rejection, avoidance, and fear.
Research from 2007 indicated that there were no less than 250 known labels (terms and phrases) that were then being used to stigmatize and disparage those with mental illnesses. A current list would most probably be more expansive. Distressingly, some of those labels are notoriously employed in the practice of law – disturbed, nuts, psycho, crazy, insane, demented. These words, and others like them, remain as derogatory today as they were over a decade ago. In light of Rule 8.4(g), continued use of such dismissive words is discriminatory, and therefore may constitute professional misconduct.
Professional misconduct will be sanctioned; however, the consequences of discrimination against a protected class are profoundly more severe, particularly if state actors are conducting themselves in a manner that runs contrary to a person’s rights to equal protection under the law and due process of law.
Just as every incidence of mental illness will not fall within the range of disorders under the protection of Rule 8.4(g)’s inclusion of disability as a protected class, every act of professional misconduct that occurs in violation of that paragraph will not necessarily violate a person’s equal protection and due process rights. Still, we do not know whether, how, and to what extent the language used throughout the legal profession to address mental illness reaches the threshold of violating individuals’ civil rights.
The language used by the legal profession needs to reflect contemporary understandings of mental illness to remain in compliance with Model Rule 8.4(g).
The potential ramifications stemming from violations of the Rules of Professional Conduct, for both attorneys and those they encounter in the course of their practice, can be immense, even life-altering. Review of any state bar’s discipline records will provide abundant evidence to support this claim.
More specifically, violations of Rule 8.4(g), especially those with the potential to threaten a person’s civil rights, could have a chilling effect on the trust the public has in the legal profession. In a socially-conscious era that prioritizes inclusivity over mere political correctness, a time is coming when our society will no longer accept being subjected to archaic, discriminatory, abusive terminology when they participate in legal processes. For many of the protected classes specified in 8.4(g), that day has already come. For mental illness, that day is undoubtedly on the horizon.
Recently, the use of foul language by attorneys in the practice of law has resulted in disciplinary action being taken by the bar in both the United States and in Canada. For example, in 2017, an Oklahoma lawyer was reprimanded and ordered to pay costs after leaving “unprofessional, inappropriate, vulgar, offensive” voicemail messages for a client. In Illinois, one attorney was suspended for 90 days for using profanity in front of the jury, while another received a year-long suspension for making “lewd and misogynistic comments” to opposing counsel. In 2014, in British Columbia, Canada, an attorney was given a 30-day suspension and fined $10,000CAD (about $7,500USD) for cursing in the courthouse.
The disciplinary panel in British Columbia stated the following in their decision: “We wish to make it clear to members of the profession that insults or profanity, if uttered in anger (whether using the F-word or not), directed to a witness, another lawyer, or member of the public in the circumstances and the place in which it was used by the respondent, are not acceptable and can constitute professional misconduct.”
That panel went on to say that such conduct (swearing in the courthouse), “might well lower the reputation of the legal profession in the eyes of the public and, arguably, bring the administration of justice into disrepute.” Especially given the inclusion of Rule 8.4(g) in our profession’s Model Rules of Professional Conduct, the disrespectful and demeaning language that permeates the discourse surrounding mental illness bears this same potential to diminish the integrity of the practice. For those who continue to perpetuate such a vocabulary, the consequences should be just as serious as the offense committed.
Empirical research is needed to investigate the ramifications of using biased language in reference to mental illness within the legal system.
Historically, the discriminatory language that has been used in our nation and in our legal system to discuss mental illness and the individuals who live with such conditions has been anything but kind. Personally, I don’t think I will ever forget what I felt when I read Buck v. Bell for the first time, with all its cruelty emblazoned on the page in one compact little sentence: “[t]hree generations of imbeciles are enough.”
While the word “imbecile” has largely faded into obscurity, its modern counterparts are not all that much more desirable to have directed at a complex, unique individual, or to be immortalized in case law. Buck v. Bellwas decided less than 100 years ago. We must still actively strive to distance ourselves from that linguistic legacy. Because words matter.