Is It Crazy To Be Nuts?

At the Faculty Lounge, Charlotte lawprof Brian Clarke “came out.”  No, not about sexuality, but something still hidden in deeper, darker places where society has yet to begin to accept.

I will admit to being a bit nervous about even raising this topic.  (Given the nature of many anonymous internet commenters, I think most people would be hesitant to bare even a minute portion of their souls online and attempt to engage with a very serious subject, only to be subject to snarky or mean-spirited attacks.)  Plus, mental illness and suicide are not comfortable subjects for most people.  There remains a very real stigma attached to mental illness.  Many people believe that suffering from clinical depression, anxiety disorder, bipolar disorder, or a host of other mental illnesses is a character flaw or a weakness.  Having one of these diseases has been seen as something of which the sufferer should be ashamed.  This attitude has been in place for too long for people to easily change their perceptions and opinions.

However, as lawyers and law professors, we must to do more.  It is clear that our students need us to do more.  When you are depressed, you feel so terribly alone.  You feel different.  You feel ashamed.  You feel weak.  You feel like you will never feel better and that you can never be the person you want to be. 

My name is Brian Clarke.  I am a father, a husband, a lawyer and a law professor.  And I suffer from major depressive disorder and generalized anxiety disorder.

His post begins by noting a rash of lawyer suicides, accomplished lawyers who, by any metric, should be more than capable of handling the occasional hard knock.  While I have some doubts about “diagnosing” these lawyers solely upon their having committed suicide, it serves as a good lead-in to his point.

While there may be some greater enlightenment in some circles with regard to mental illness, the stigma remains very real.  Worse still, those who suffer from mental illness may not be capable of recognizing it in themselves, thus making it far harder to realize that treatment is needed.  Yet, as Clarke makes clear by offering himself up, it exists, it affects some very smart people who by all outside appearances should be doing great, and it needs to be addressed.

It begins by accepting the notion that mental illness, a terrible name by the way, is a physiological condition.  As Clarke notes:

These are treatable diseases, not character flaws.

It makes no more sense to stigmatize someone suffering from bipolar disorder than cancer.  It similarly makes no more sense to demand they “tough it out” than it does to demand that a blind person see.  It doesn’t happen that way, no matter how ignorant society may be about the nature of the problem.

No, mentally ill people don’t spend their lives rolled up in a ball in a corner drooling, as too many people still believe. At the same time, they can’t force themselves not to be mentally ill, whether on command or as needed.  Clarke’s “coming out,” which brought out others who also make it through their day with the help of psychotropic medication, was not merely bold on his part, but critical for many who have hidden their issues for fear of condemnation.

This is not, to be clear, a problem of delicate teacups whose feelings are hurt by any offense to their sensibilities, or special snowflakes who think the world revolves around them. This is about people who suffer from a real, honest-to-god illness, and both need and deserve treatment. While the former deserves little sympathy, the latter deserves to be treated, and treated with dignity.

In a Gawker post, Zachary McDermott, a Brooklyn public defender, wrote of a psychotic episode that landed him involuntarily in Bellevue’s psych ward.  After three months and a drug regimen that came and went, he returned to work at the Legal Aid Society.

My caseload had dropped from 70 to zero. Reactions to my return ranged from, “Where have you been?” to “Welcome back.” A few people hugged me and cried.  As public defenders we fight for clients who are mentally unfit to stand trial on a near-daily basis. We meet our clients for the first time in jail. I knew if there was a group of people that wouldn’t judge someone for a DSM-V code, it was my colleagues.

But, real or imagined, I felt a widened berth in the hallway and could only see their shattered perception of who I was in their eyes. The hotshot with the mohawk was actually the deeply troubled sad sack with “issues.” Soon enough, I was back in court, and my projections begin to melt, but I was armed with a completely different understanding of my mentally ill clients than I ever hoped to have. Every time I was forced to send someone to Bellevue I battled a wave of nausea. I wished I could tell them, “You aren’t crazy. Crazy people don’t know they’re crazy.”

The fellow who sent me the link to McDermott’s story did so with a question attached. “Is there” he asked, “an ethical responsibility to tell his clients that he’s mentally ill?”  It’s a very difficult, very troubling, question.  Anything that might impair a lawyer’s ability to provide zealous representation should be disclosed to the client.  And certainly, given the myriad discretionary decisions a lawyer must make, the sound advice to which a client is entitled, the lawyer’s ability to exercise sound discretion is critical to the performance of his duty.  If that ability is affected by mental illness, then mental illness is relevant and must be disclosed.

More to the point, if a lawyer suffers from mental illness, is he capable at all times of recognizing how it might affect his judgment on behalf of a client?  And yet, if so, then no defendant in his right mind would want to be advised and represented by a mentally ill lawyer. No matter how sympathetic the client may be, there is no reason why the client should be willing to risk his life because of the lawyer’s “issue.”

And so we return to the stigma, the influences that push a lawyer to deny his illness, to refuse to seek treatment and try to “tough it out,” thus putting clients at greater risk of the exercise of discretion by a lawyer who suffers from undiagnosed and untreated mental illness.

I had no good answer to the question.  While it’s easy to pick a side, and it’s easy to react that whatever serves the client is the side we are obliged to choose, it’s not clear which side that is.

20 comments on “Is It Crazy To Be Nuts?

  1. william doriss

    If I was a public pretender working in the District of New York, I believe I would soon be suffering from major depressive and generalized anxiety disorders, myself. It seems like a terrific occupational hazard. These amorphous (?) episodes may in fact be a self-limiting, life-stage occurrences more than some chemical or neuronal imbalance which can be cured by some expensive, magical pharma-cooked medication. Plenty of depressed folks function in the real world and do not commit suicide. It is not a foregone conclusion that because you suffer depression, or some related disorder, that you are at the end of your rope.
    And then there is the well-documented “placebo effect” to contend with, where the patient gets better thru some treatment or other for the simple psychological sleight of hand reasoning where the patient unconsciously thinks/knows he should/could get better. OK, you’ve had your sabbatical: Now get back to work.
    After all, the legal profession is wide open to career dis-illusionments and disappointments. I’m not a lawyer, but I see endless opportunity failures and dead-end traps. Perhaps more so than any other profession, except opera singing and tight-rope walking.
    My trial lawyer got hives in the middle of trial and had to leave the courtroom abruptly, after excusing herself. She took a couple of days off, and then returned, bright-eyed and bushy-tailed. She had the sense to do this, when she might have suffered in silence and performed poorly for her client.
    Finally–you knew this was coming?!?–my lady judge and prosecutor were both in dire need of mental evaluation and treatment. (Which in fact was subsequently ordered upon ME at Sentencing. I do not tell too many people. I passed the evaluation with flying colors. Guess what, ma? I’m normal after all!)
    Hey, that is not fair.

    1. SHG Post author

      (Which in fact was subsequently ordered upon ME at Sentencing. I do not tell too many people. I passed the evaluation with flying colors. Guess what, ma? I’m normal after all!)

      And it couldn’t be that they lied to you so they could sentence you anyway. Oh no, that couldn’t happen.

  2. Tabitha

    I actually quit practicing law precisely because I have a so-called “mental illness.” I have general anxiety disorder and social anxiety disorder. I’m not ashamed to tell people I have these disorders. Although usually the symptoms are controlled by medicine and endurance exercise, stress makes them manifest in a manner that is totally unacceptable to the proper practice of law. In other words, I can’t help my clients if I’m suffering from a constant panic attack. And, when I practiced, I was. So I decided to do something else that was more conducive to my temperament.

    I think it’s imperative that attorneys figure out when they aren’t going to be able to do their jobs competently and remove themselves from the situation. You’re working for others! It’s not just about you. So to this question – “Is there” he asked, “an ethical responsibility to tell his clients that he’s mentally ill?” – the answer is YES.

    1. SHG Post author

      Your metacognition makes you stand out from the beginning. There are a lot of people who suffer from mental illness (I still hate that phrase) who have no clue they need help. Thanks for your inside view.

    2. Rick Horowitz

      “I think it’s imperative that attorneys figure out when they aren’t going to be able to do their jobs competently and remove themselves from the situation.”

      Agreed, on that point.

      “So to this question…the answer is YES.”

      I missed the jump.

      Isn’t it possible that someone with a mental difference could be able to do their jobs competently, and therefore wouldn’t be required to tell his clients about his mental difference?

      Is there a distinction between someone who has a mental difference like chronic depression, which can occasionally cause you to be less functional than at other times, and unrecognized sexism, or thoughts about a particular case, or type of case, or less creative intelligence than other lawyers?

      I know some lawyers have problems with certain types of cases, and won’t take them for that reason. But does one have to actually LIKE child molesters, or really have no opinion whatsoever regarding them, in order to represent them? If you don’t LIKE them, do you have to tell them? Or do you only have to tell them you don’t like them if it’s going to impact your representation of them?

      What if experience has shown that you’re not as good as other attorneys, such that other attorneys in town would (privately, if not publicly) say, “a defendant would be better off with almost any attorney in town than with that guy.” And what if you know people say that about you, but you shrug it off, thinking perhaps that you do okay? Should you still tell your clients that most other attorneys would think you aren’t as competent to handle the case as you think you are?

      I doubt any of us are going to start telling our clients about our relative abilities. And I don’t think you have to reveal confidential information about yourself — such as that you have chronic depression, or anxiety, or whatever — to clients unless it is going to materially impact your ability to zealously represent them.

      In which case, you probably shouldn’t be offering to represent them.

      1. SHG Post author

        While there are an infinite number of possible things that can be juxtaposed with mental illness, the distinction is that a lawyer suffering from a condition that impacts his ability to exercise sound judgment and provide competent advice, has a medical diagnosis that can’t be easily ignored.

        Perhaps the better answer to the other potential things that compromise a lawyer’s ability to fulfill his duty to his client is that there should be greater disclosure rather than less, which is anathema at a time when most lawyers are trying to sell themselves like laundry detergent. But still, a diagnosis is far more concrete than a lousy attitude.

        I get calls to do work in other legal niches, and I refuse the case as it’s not what I do. I have difficulty representing child porn and molester cases (not “liking” the defendant, but being so repulsed by the offense/evidence that it impacts my ability to zealously defend), so I refuse them. I get calls from defendants who want to cooperate, and I tell them I’m not the right lawyer for them. It’s really easy to be frank and honest with clients about anything that might impair their interests. It’s not in the lawyer’s financial interest to do so, but that’s the nature of being a professional, putting the client’s interest first.

        1. Rick Horowitz

          I think absolutely the client’s interest has to come first. And, like you, I’ve turned down jobs where I recognized I was the wrong attorney, for whatever reason. (Sometimes it’s just because I recognize that a particular potential client irritates me.)

          And despite one of my questions above about relative intelligence, I have even told a client wanting to switch to me from a more experienced attorney that the other attorney had more experience with their type of case than I do.

          I won’t beat a dead horse over this issue. I just want to be clear that what I’m saying is I don’t think it’s a bright line like, “you were once diagnosed with this, so you have to tell every potential client.” I think the line is, “if there’s something that is going to impair your ability to competently represent your client, you have to tell your client.”

          I have (diagnosed both as a child and re-diagnosed as an adult, and, in the past, medicated) ADD. I’ve been told by my doctor I might have chronic depression, although I’ve never been given medication for that. I don’t hide this, but I don’t make it a point to tell every potential client, either. Not because I don’t want to. Frankly, I never even considered it until reading this discussion.

          If courts, clients, and colleagues are to be believed, I’m one of the better attorneys where I practice.

          I’ve always considered that that is what matters.

          1. SHG Post author

            Frankly, I agree with you, but see a lot of merit to all concerns. The measure of “does it impact the client” seems superficially sound, but then the question is who decides, the person with mental illness? This is why it’s such a difficult question.

            And then there’s the crazy judge in Chicago who wants back on the bench. If it’s good for a lawyer, is it good for a judge?

            1. Wheeze The People™

              This sub-thread strikes me as a respectful discussion of the issue — an issue with more variables than obvious answers . . .

              I do think that in the scenario of an individual attorney revealing his particular condition in a very public fashion like Zachary McDermott did, his future clients shouldn’t be the only ones left out of that loop. Personally, I found his essay to be courageous and meaningful, but wondered about the impact of his disclosure on his future.

              Knowing a smidgen about mental illness myself, some very serious conditions can distort a person’s reality so much that he is not capable, when in the grip of an episode, of recognizing that he is not “fit for duty” at that particular time. I’m not talking about ADD or normal depression, but more like severe schizophrenia and bi-polar disorder, which can indeed bend reality to an alarming degree at times.

            2. Wheeze The People™

              No, the blues of love don’t count, but “Institutionalized” disorders affecting the justice system are more concerning:

  3. Alex Stalker

    I don’t think it does any good for public defender’s to tell their clients about disorders/disadvantages/mental illnesses they have that are treated or otherwise don’t affect their ability to represent a client.

    A client appointed a public defender to represent them doesn’t have any choice. As long as the mental illness/disorder/whatever doesn’t impair the attorney’s ability to do the job, telling the client will only serve to bring about conflict and cause the client to second guess the attorney. It’s not as if the client, even if fully informed, can obtain a different attorney. As always, if the attorney does believe their ability to represent a client effectively is compromised, they are required to withdraw and should disclose the reason if it becomes necessary in order to withdraw.

    I am not sure I would give the same answer if we were talking about a private attorney with a mental illness seeking to be retained by a client. But if they should disclose, where does it end? Should an attorney be required to disclose other non-mental illnesses conditions to clients that if improperly treated may diminish the ability of the attorney to represent a client? For example, should an attorney disclose if they have diabetes prior to representation? Unexpectedly low or high blood sugar could certainly impair an attorney’s ability to perform effectively. What else might have to be disclosed? Insomnia? Migraines?

    1. SHG Post author

      Yours is something of the “gut reaction,” but it fails to address the problem, particularly with PDs since the defendant ordinarily has no choice but to take who he’s given. It’s fine to say that it only matters if it impairs a lawyer’s ability, but who’s to say and how would one know? Comparing mental illness with insomnia or diabetes is a lame analogy. Do you think so little of an indigent defendant’s rights to counsel to dismiss them so cavalierly?

      And if an indigent defendant requests different counsel because his lawyer suffers from a mental illness, a court would be hard pressed to force the defendant to continue, and it shouldn’t. It’s hard to have confidence in a lawyer forced upon you who’s discretion is in fundamental question.

      The answer may ultimately be the same, but it requires far deeper analysis than this to get there.

      1. Alex Stalker

        I suppose I probably should have shown my thinking more clearly.

        If you have a mental illness that has responded to treatment to the degree that it doesn’t affect your ability to work as an attorney, except that you need to remember to take some pills in the morning, I don’t think there is any ethical obligation to disclose. Some of the most debilitating diagnoses in the DSM can respond incredibly well to pharmaceuticals (e.g., depression, anxiety, schizophrenia). Not everyone will benefit from pills, but some can be pretty much fine (with regards to the mental illness, anyway) as long as they’re taking them. If an attorney falls into this category, then I don’t think there would be any ethical obligation to disclose the mental illness, unless the attorney stopped medicating for it. If the attorney stopped medicating, then there probably would be an obligation to disclose to the client.

        If your mental illness (or any other condition) renders you, in your own opinion unable to effectively represent clients, then obviously, you shouldn’t represent them.

        If you’re receiving treatment, but you still feel your ability to practice is slightly impaired, but not to the degree that you are not able to be effective or meet your ethical obligations, I don’t think you’re ethically required to disclose the mental illness, as long as your cognitive and reasoning capacity doesn’t deteriorate. If you cease treatment or your faculties deteriorate, then disclosure to the client is probably required if you seek to continue representation. Yes, this does put the person who potentially has deteriorating cognition and reasoning in charge of determining if their cognition or reasoning is being further impaired. Best practice in this instance is disclosure to the client at the outset, but I don’t think it is ethically required absent a change in circumstance.

        This should be the standard whether we are speaking about mental illnesses or any other condition that could impair your ability to practice. I don’t see a reason a DSM diagnosis should be treated any differently than any other diagnosis.

        Going by the MRPCs, and ignoring for the moment that every state is different, if something impairs competence or is likely to (1.1), it should be disclosed. If it doesn’t, I don’t see anything requiring disclosure. I don’t think failing to disclose private health information when it is unlikely to affect the representation would be “dishonesty, fraud, deceit, or misrepresentation” under MRPC 8.4 and I don’t see any other model rule that might require disclosure.

        1. SHG Post author

          TL;dr1, although I note your inclusion of the rules. Bear in mind, they are the floor of ethics, the absolute least an attorney can do without being subject to discipline.

          In my view, ethics is not defined by the absolute minimum to avoid discipline. Being an iota better than disgraceful is not the bar by which lawyers should be judged.

      2. Alex Stalker

        I broke this up into 2 different comments, because I really had 2 different things to address in your response, plus the previous comment is already really long. Sorry for using up all your bandwidth today.

        I don’t think diabetes and insomnia were lame analogies. Very low blood sugar can cause severe cognitive impairment, roughly similar to being drunk. Some diabetics can have rapid swings in their blood sugar. Similarly, exhaustion from lack of sleep can cause significant cognitive impairment.

        It is not that I am inclined to dismiss a defendant’s right to effective representation, but rather than I have no confidence that a layperson client can accurately assess the functioning and ability of their lawyer and the degree to which the lawyer might be impaired by a mental illness. What is likely to happen is the client would rather not have any disadvantages, perceived or real. So, if a public defender tells their client they suffer from a mental illness the client will use that to dismiss the PD’s opinion or belittle the PD. There is a stigma associated with mental illness, I have no doubt that would be applied to any PD admitting to a client (especially on first meeting) that they have been diagnosed with a mental illness.

        I don’t actually agree that a judge is likely to automatically remove an attorney who has had a mental illness from a case. If it’s untreated, sure. If it’s treated, and the attorney believes they can handle the case, and agrees to notify the judge if they change their assessment of their ability, I doubt the PD would be removed, regardless of the wishes of the client.

        Take your example of Mr. McDermott above. I doubt judges routinely remove him from cases if a client complains about him. As a PD I know that there will be instances of clients that dislike you and demand a different attorney. Barring some ethical reason or a complete breakdown in communications (and generally, a client refusing to speak with her attorney is not the kind of complete breakdown a judge has in mind) a judge won’t appoint a new attorney. The two will be stuck with each other. My suggestion that a PD shouldn’t bring it up if it doesn’t impact her work is pragmatic. If you’re going to be stuck with each other anyway, why create additional tension that could impair your ability to give your client counsel and advice?

  4. Wheeze The People™

    If the answer to the question can only be either a strict YES or NO, then, unfortunately, I find both answers equally horrible in very different ways. The slippery slopes in both directions seems sub-optimal at best.

    Maybe there is a GENERALLY YES, BUT … or a GENERALLY NO, BUT … answer that would be more palatable, though I also have many concerns about such an approach too.

    The thing I am certain about is that, as you called it, it is a very troubling question . . .

  5. John Neff

    Wow transparency, confidentiality, ethics and HIPPA requirements all mixed together. Not only do you have to ask “What will cause the least harm?” But who will be harmed the the most?

    1. SHG Post author

      You left out ADA. But since the question is limited to lawyer ethics, the question of how this will affect the lawyer doesn’t come into play, except to the extent it impacts the client. It’s always about the clients, not the lawyers, at least as far as our professional responsibility is concerned.

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