How can we make real changes within the practice of law to lessen the impact of stress on individuals in this profession? In this episode of the ALPS In Brief Podcast, Chris Newbold checks in with Dallas attorney and advocate for wellbeing, Brian Cuban, to discuss the state of lawyer wellbeing now, the lifesaving impact one lawyer can have upon another, and our ethical responsibility to step up for one another. 

CHRIS NEWBOLD:

Good afternoon. This is Chris Newbold, guest hosting today for the ALPS In Brief Podcast. And I’m here in our offices in Missoula, Montana with attorney and advocate for wellbeing, Brian Cuban, who’s in here from the Dallas area. I just spoke at our ALPS Bar Leaders Retreat, and we thought this would be a great opportunity for us to have … We have a similar passion in terms of seeing our profession improve on the wellbeing side, and so I thought this would be a great opportunity for us to just kind of have a conversation about where the profession’s at. Where do we need to go?

And Brian, you’re obviously out on the speakers’ network, kind of talking about this particular issue, your personal experience, and so forth. I think I’d like to start with just you kind of putting into your own frame of reference. What is the state of the profession right now when it comes to attorney wellbeing?

BRIAN CUBAN:

It’s a state that is a lot better than it was a few years ago. We have much more awareness. We have many more engaged professionals from the bottom up, the lawyers, the bar professionals, the local bar professionals, the state bar professionals. And we have awareness in big law. We have awareness within the boutique and the solo practitioner. There are areas that we can certainly do better, and we can certainly be more impactful, but we are definitely light years ahead of we were just three years ago.

CHRIS:

And what do you think has driven that improvement in such a short period of time?

BRIAN:

I think you have to give a lot of the credit to the ABA and the Betty Ford Hazelden Report, and that would also be Patrick Krill, who authored that report, in bringing the issue to the forefront with the staggering statistics, because I think that was a catalyst in really changing the conversation. Whatever people think of the ABA, you have different opinions, but you can’t deny that that report was a seminal moment.

CHRIS:

And why do you think that the issue right now is capturing a lot of attention in the legal community in legal circles?

BRIAN:

Well, because of that report and because of the cumulative awareness, now we are looking around us and actually noticing what’s going on. We may have been aware of what’s going on, we may have seen what’s going on. When someone dies by suicide, we are aware of it and we grieve it. But we are now much better in taking a look at that, and deciding where things could’ve been done differently. And three years ago, four years ago, it was more about just grieving and handing out, in the issue of suicide, handing out the 1-800 hotlines. Now we are moving beyond that, and really look at how we can make systemic changes to at least lessen the odds of those things occurring.

CHRIS:

You talk a lot about kind of the impact that one lawyer can have on another lawyer. Right? And the responsibility that we have to not be kind of casual observers in this. Talk about that a little bit more as it relates to how we looked at, engineer a culture shift in the profession, and how every lawyer can make a difference one by one.

BRIAN:

Sure. I talk a lot about not minding your own business. We have to create a culture where we are comfortable, or even if we’re not comfortable. Let me step back from that because that’s not comfortable. It’s okay to be uncomfortable not minding your own business. That’s a human emotion. But we have to get comfortable understanding that for what it is and taking that step anyways. When we see someone struggling, when we think we might be able to, or we are wondering, you just don’t know. Is there a drinking problem? Is there a mental health struggle? Maybe the person’s just having a bad day. To be able to not mind our own business for one moment, step outside of our struggles, step outside of our busy day, our billing, the things we have going on, and say, “How are you doing? Are you doing okay? Do you know that if you’re not, you can come to me, and we can talk?” That doesn’t require anything but empathy. And every lawyer, every person has that ability.

CHRIS:

Is that a tough conversation for an associate to have with a partner?

BRIAN:

Absolutely. And we have to follow protocols. Law firms need to establish protocols for when people are struggling. That is not realistic to expect an associate to confront a partner. But big law all have EAPs, so there’s that. We all have lawyers assistance programs. Do you know as an associate, you can call lawyers assistance program, and you can let someone know what’s going on? And they’re not going to out you. I know that is a tough pill to swallow, and I know you don’t believe that. But you can make that call. You do not have to identify yourself in any lawyers assistance program in this country, and you can say, “I’m in this firm, and I think this guy is struggling.” And they will take it from there, so you can do that.

BRIAN:

Within big law, we can talk about big law and then move on to something. Go down, go down. Within big law, it’s important to establish protocols that are nonjudgmental, where everyone has a path. Everyone in the firm has a nonjudgmental path, a path that they feel safe voicing their concern if they see someone they think is struggling. So I can’t tell them what that path is, but there should be multiple paths based on where someone is in the chain, right down to the clerk.

CHRIS:

Talk about your opinions on … There’s an increasing body of work out there that says that the economics of wellbeing are conducive to a stronger bottom line. Right? And as we think about talent acquisition, talent retention, I know you work a lot in kind of big law firms. Right?

BRIAN:

Mm-hmm (affirmative).

CHRIS:

I think there’s a really interesting play on the horizon for those who lead our profession from a big law perspective to be thinking about a commitment to this issue that could translate economically for the firm. Talk about that.

BRIAN:

Absolutely. And I think, I doubt there are any managing partners, senior partners, firm CEOs are the real big ones that are not aware of that issue. It is the messaging is consistent just in general in society about the impact of addiction and mental health issues on the workplace and the economic cost. So the challenge becomes: How do we translate that into risk management? And I think they are starting to do that. That is not what I do. I’m a storyteller, I’m not a risk manager. But I think we are starting to see an industry, and people who do that, to go to a firm and say, “This is how we translate this into risk management to increase value to you,” save you money. That saves the client money because on the most basic level, and we talked about the Peter Principle of Recovery. Right? How your level of competence keeps decreasing, and you keep trying to adjust your mindset to stay within that, you tell yourself you’re at a high level when you’re struggling.

BRIAN:

That can be, in a general sense, stealing money from a client because you were not effectively representing the client. That is affecting the firm’s bottom line, and that is the most basic level. When a lawyer is struggling, and not functioning at the non-struggling level, he may not even, or she may not even understand what that level is because they’ve been in the middle of it, lacking self-awareness for so long. That is affecting the firm’s bottom line. That can affect client retention because there are lawyers out there who are not struggling. Everyone’s trying to get the business. Right? So you have to maximize the … You have to minimize the risk by putting lawyers in a position to succeed and to hit the top level of competence and move beyond that if possible. Keep raising that level. And it’s hard to do that when someone’s struggling with addiction, problem drinking, depression.

BRIAN:

And I see lawyers all the time that talk about, well, I’m struggling with depression, but I was killing it, doing this. And I can’t judge that. I don’t know their situation. But I can say anecdotally, and what I see in the data, that I don’t see how a person can look at the big picture, step back, and say, “I was going through all that and giving a dollar for a dollar.” So I think all firms are aware of that, and I think that is achieved through a risk management model.

CHRIS:

Again, it’s going to be interesting too as big law tries to recruit talent out of the law schools, how much top talented students are actually looking for a wellness play in terms of the life, work balance that I think, generationally, I think is becoming more common.

BRIAN:

That’s a good question. I forget what the study was. Was it Am Law? Did the Am Law survey just come out?

CHRIS:

Mm-hmm (affirmative).

BRIAN:

And I couldn’t find it. I think it may have been subsumed in one of the questions. But I reached out to Patrick Krill, who does a lot of the risk management stuff, and who authored the ABA Betty Ford Study, and asked him if he knew if we are surveying firms on wellbeing, if that is part of the survey. And I don’t know that he had. I’ll have to look and see if he responded, or he had an answer. But I think that may be not so much as a conscious play, but as a lifestyle play. It’s just part of an overall lifestyle. Looking at the overall lifestyle, can we say that someone’s going to say, “What’s their drinking culture? I’m not going there”? There’s no way to know that. But in the overall lifestyle play, I think lifestyle and wellness will become major factors, as Millennials and Generation Z, who have different priorities on what they want their life to look at as lawyers and as human beings.

CHRIS:

Yeah. Talk more about, it’s an interesting time in our profession given the fact that we have four separate generations all operating at the same time. Right?

BRIAN:

Mm-hmm (affirmative).

CHRIS:

But there are also studies out there, particularly those that have been done within the law schools, that say some of these behaviors and substance abuse and so forth are starting earlier, and are becoming more prevalent for those who have been in practice, particularly in private practice, for less than 10 years. As you think about that dynamic, and Millennials and so forth, that’s soon going to be the largest chunk of lawyers in the profession. And as you think about the generational aspects of wellbeing, what’s your take on that?

BRIAN:

I think Millennials definitely have a different vision of what wellness looks like than … I’m a baby boomer. The baby boomers, I come from, my lawyers’ culture was a drinking culture. And I think when we look at things like the Sober Curious Movement, and what the Sober Curious Movement is, is not looking at drinking in terms of whether someone is a problem drinker, is an alcoholic, but what it looks like as a lifestyle, and as part of a healthy lifestyle, and whether you want it to be part of the healthy lifestyle without being judged on whether you’re abstinent or not abstinent, and what that means to you, whether you’re an alcoholic or you’re not an alcoholic. I think Millennials and Generation Z are going to look at this differently in terms of just, I want to do the things that make me feel good, and that may not involve drinking. And I don’t want to be judged for that. I don’t want to have to explain myself.

BRIAN:

And I think that is going to be a much easier transition and a much easier conversation than it is for my generation because it’s beginning. It is beginning. The Sober Curious Movement is out there. We have bars within New York. There aren’t any in Dallas and Austin. And you see a lot of the progressive towns, where you have bars, they just serve mocktails. And they revolve the fun around other things besides getting drunk. You go out and you’re drinking fake pina coladas without alcohol. And they revolve everything around those, around the mocktails. The mocktail generation, they may be that.

CHRIS:

That’s an interesting one. If you had to assess right now, wellbeing in the legal profession, one being it’s at an all-time low, 10 being, I think lawyers are both healthy, happy, engaged, where you put that on the spectrum?

BRIAN:

I would put we’re at a three or four, three or four. And that’s great, and that’s great.

CHRIS:

A lot of room for improvement.

BRIAN:

A lot of room for improvement. Four is opportunity. Right?

CHRIS:

Yep.

BRIAN:

Four is opportunity. Yes. And one of the biggest challenges I think we have, and if you look at big law, we with the ABA, and this isn’t a criticism of the ABA at all. I think with the Wellness Task Force and everything, they have laid out the groundwork for all levels to participate, all stakeholders, solo, medium, boutique, the bar associations, all the way up to big law, corporate. I think they are laying out that groundwork. But I think when we get further down into the stakeholders, the solo practitioner, the small firm, we have a lot more work to do. And I think in that chunk is where we have the most improvement to do in our messaging, and the most opportunity because we have other challenges when we get down there.

BRIAN:

If you work at big law, you have health insurance. And I knew big law lawyers who have health insurance, and still can’t find a reasonable psychiatrist or therapist. They’ve complained to me about it. We have this health insurance crisis on so many different levels. And big law within the spectrum, you have privilege. You have health insurance privilege because you’re going to have it. And you’re going to have the EAP, and you’re going to have this, and you’re going to have that.

BRIAN:

I don’t know what the stats are, but I know anecdotally that a lot of the solos cannot afford health insurance. So when you can’t afford health insurance, what are your options? You’re going to 12 step. You are going to county. A lawyer don’t want to go to county and get free treatment, that’s very shameful. Right? If you even have that option as a reasonable option in your city. A lot of cities have terrible county free health services. And so we have that stigma of a solo practitioner and the medium, I don’t have health insurance. I’m a lawyer, I’m not taking advantage of free. I can’t. So they don’t tell anyone. It’s shameful. So how do we solve that?

CHRIS:

Obviously, in our book of business with ALPS, we specialize in small firms and solo practitioners. And 65% of the policies that we issue are to solos. And they’re generally a higher malpractice risk because they don’t have a support network around them.

BRIAN:

Absolutely.

CHRIS:

You can’t stop into Brian’s office and say, “Hey. Let’s have a conversation about this particular case.” You have to build networks. You have to build connections in very different ways, which makes it I think, much more challenging.

BRIAN:

And it does. And it’s a challenge where you’re struggling. It’s going to be dependent on the particular situation. But you’re making what would be decent money, you have a family. You can barely, after everything, then you care barely support your family. And you’re more able to speak to this. You have a deductible that you can’t meet anyways, even though you have health insurance. That’s as almost as being uninsured. So we have all of those issues, and I don’t know what the solution is to that. But that is one of the things that is a huge barrier to wellness within the profession, health insurance and the ability to pay for getting well, the ability to find people to get us well. We are becoming a cash only society in terms of wellness.

BRIAN:

I consider myself very lucky because I have a psychiatrist, I’ve been seeing for 15 years, and he treats. I have one of the few treating psychiatrists out there with his therapy. But we also have the ghost networks that you may be familiar with. And I’m getting off on tangents, where you can’t, even if you have health insurance, you can’t find a treatment provider because they don’t take insurance.

CHRIS:

Where do we go? A lot of good activity now happening. You’ve got Pledge. You’ve got some state task forces going. Got a lot of discussion. Societally, we’re seeing more vulnerability to talk about these issues, whether it’s Hollywood stars, or sports stars, there’s just more discussion, which I think is healthy. If we’re a three or four right now, how do we get to a six or seven? How do we start to move the needle? Culture shifts in any society-

BRIAN:

It’s one person at a time. It’s one person at a time. If you’re talking, there’s no magic pill to culture shift. We talked about this. It is one person at a time. There’s one bar association at a time. There’s one law firm at a time. And you hope, you hope, that the Malcolm Gladwell theories kick in, and you hit a tipping point. But it is much more, again, it is much more on different levels societal. If I can’t afford treatment, what’s the difference what the path is if I can’t get there? Why should I tell anyone if I can’t afford to get there? In Texas, we have a fund where if you go to them, a lawyer can get treatment. I believe it’s an endowed fund privately. And maybe someone will correct me on this when they listen to it. But we have to find different ways to … It’s more than just laying the path. People have to be able to walk on it.

BRIAN:

And if you can’t afford to get the help, other than 12 step, and 12 step is great, Smart Recovery’s great, Refuge Recovery is great, but they’re all mutual aid. Mutual aid is not treatment. Mutual aid is maintaining connection, which is important. If you can’t afford the treatment, and you have no way through that path, that’s a huge problem that goes beyond the legal profession. When we talk about the legal profession, what we can do, I think we have to have a more societal view of that. How do we correct that?

CHRIS:

Yeah. There’s an interconnectedness to a lot of different-

BRIAN:

You can’t sever this. You can’t sever out health insurance accessibility from all the other issues within the profession because most of the profession is solo and small.

CHRIS:

And even on a tangent, one of the reasons I got involved in the wellbeing movement was I feel like there is a gap in expectations for what people think practicing law will be like, and ultimately what they find that it’s going to be like, whether that happens in law school, or whether that happens because of law school debt. That again, to be a good lawyer, one has to be a healthy lawyer. And more and more, people are finding themselves boxed into a spot where they’re actually doing something that they’re not finding professional satisfaction in, which is then causing … It can cause other things to kind of spin off from there.

BRIAN:

I agree. I agree. Every lawyer is a story. Every lawyer is more than just the person under stress. Every lawyer brings their entire history of trauma, of however they grew up, family.

CHRIS:

Family.

BRIAN:

They bring it all through the door of that firm. They bring it all to the courthouse. So whatever that stress is may not just be the product of what’s going on at that moment, the case, fulfilled expectations, unfulfilled expectations. It may be the product of a life story that has shaped someone that made them more susceptible to those issues. Does that make sense?

CHRIS:

It does.

BRIAN:

So we have to address the story and not just the moment that the lawyer is in.

CHRIS:

Yeah. Anything else that you want to kind of relay as we talk to our policy holders and other interested listeners about just kind of the current state of attorney wellbeing?

BRIAN:

If we want to change the paradigm of attorney wellbeing, for me personally, I think the most powerful tool is continue to encourage people to tell their stories. Keep telling the stories. Everyone identifies with aspects of other people’s lives. There’s going to be something to identify with. The connections, stories bring connection. Keep bringing people in to tell stories. Just encourage that. And I think through the power of storytelling, we will start to see more and more people tell their stories, and then they’ll tell their stories. And I think that is how.

CHRIS:

That reduces stigma. That reduces vulnerability.

BRIAN:

That’s right. I think as we reduce stigma, we will better empower lawyers to seek recovery.

CHRIS:

Yeah. Brian, thank you.

BRIAN:

Thank you.

CHRIS:

We appreciate your time, and we appreciate your perspectives. And obviously, you’re doing wonderful work in the storytelling side of the ledger because it’s important that through the experiences of you and telling your personal story that it makes a difference.

BRIAN:

I think law firms need to realize, and I think big firms are starting to do this, is creating a wellness program has different levels. There’s storytelling. There is risk management. There is-

CHRIS:

Scientific studies.

BRIAN:

Yes. And there is the pure wellness aspect. How do we reduce stress? How do we become happier? What can we do to allow our lawyers, within the framework of our representation of clients, to feel better about themselves and what they do? Law firms are in a business. This is a business, and they are not yogis. We have to be realistic. Law firms are there to represent clients at the highest level possible. What holes do we need to fill to make that happen? Because that is what we do. We represent clients. And so we have to fill all these different gaps, the storytelling gap, the risk management gap, the wellness gap.

CHRIS:

Got it. Again, thank you so much. And I hope you enjoyed listening to this podcast. As you know, ALPS is committed to being a leader in the wellbeing issues of the day affecting the legal profession. We hope you enjoyed this podcast. If you have any other ideas for topics on the wellbeing, please let us know. Thank you.

 

Brian Cuban, the younger brother of Dallas Mavericks owner and entrepreneur Mark Cuban, is a Dallas based attorney, author and addiction recovery advocate. He is graduate of Penn State University and The University of Pittsburgh School of Law. Brian has been in long term recovery from alcohol, cocaine and bulimia since April of 2007.

His first book, Shattered Image: My Triumph Over Body Dysmorphic Disorder,” chronicles his first-hand experiences living with, and recovering from, twenty-seven years of eating disorders, and Body Dysmorphic Disorder (BDD).

Brian’s most recent, best-selling book, The Addicted Lawyer, Tales of The Bar, Booze, Blow, & Redemption is an un-flinching look back at how addiction and other mental health issues destroyed his career as a once successful lawyer and how he and others in the profession redefined their lives in recovery and found redemption.

Brian has spoken at colleges, universities, conferences, non-profit and legal events across the United States and in Canada. Brian has appeared on prestigious talks shows such as the Katie Couric Show as well as numerous media outlets around the country. He also writes extensively on these subjects. His columns have appeared and he has been quoted on these topics on CNN.com, Foxnews.com, The Huffington Post, Above The Law, The New York Times, and in online and print newspapers around the world. Learn more at www.briancuban.com.

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