Lawyers, Doctors and Mental Health
The law is, and always shall be, a late-comer to any crisis. By the time legal doctrines and rules evolve, take shape and respond to a crisis, the crisis is often passed. We lawyers are forced sometimes to look to other professions to learn more about what is going on in our own midst. I read this morning’s front-page piece in The New York Times on psychiatry, "Talk Doesn’t Pay, So Psychiatry Turns Instead to Drug Therapy," with a shock of recognition, followed by a sinking, despondent sort of feeling.
A man walks into his psychiatrist’s office, He wants to talk about his newborn infant’s health problems, the trouble in his marriage, and the stresses driving him to seek solace in a bottle.
"Hold it. I’m not your therapist," the doctor says. The doctor tells his suffering patient that he could adjust his medications, but that does not seem appropriate.
I am struck all at once by how forgiving the medical profession is to its own. A lawyer who responded to a clent, "Hold it. I’m not your therapist." would almost certainly face potential discipline. And, unlike physicians, lawyers are all talk, we lack the ability to prescribe pills to quell the demons stalking our clients.
The law and psychiatry often share a common population of patients and clients, folks who, for whatever reason, run afoul of the impersonal requirements of the law, but who develop highly personal, and sometimes deeply disturbing and idiosyncratic responses, to the law’s imperatives. Whereas a psychiatrist is trained to teach a patient skills in coping with crisis, a lawyer is trained merely to navigate the tangible legal milestones marking the crisis, such as criminal charges, lawsuits, administrative hearings, appeals – the forms the conflict takes in public fora. In theory, psychiatry deals with private manifestations of crisis; the law deals with public events.
But what happens when psychiatry abandons its role of being a shelter in a storm? Folks in crisis don’t stop having needs. A patient/client doesn’t draw distinctions between private and public needs. If psychiatrists won’t offer help, many a client will demand it of a lawyer, a professional untrained as a therapist, without access to prescription medication, and, increasingly, told by bar regulators to offer services at little or no cost that the lawyer does not know how to give.
A lawyer who put up a weary hand and told a client, "Hold it. I’m not your therapist," will have an unhappy client on his or her hands. That client might well turn to bar regulators with a claim that the lawyer did not offer adequate counsel. After all, lawyers in most states are now required to counsel not just about strategic ends, but tactical means, of litigation. Some clients demand involvement in every decision, no matter whether it has an impact on the potential outcome of the litigation. Trench warriors recognize these folks as sticky clients. But a sticky client with empty pockets quickly transforms a law practice into little more than a debtor’s prison.
There are no sticky patients, apparently. When insurance companies refuse to pay the hourly rates demanded by a doctor, a doctor simply refuses to offer treatment. Hence, psychiatrists who see as many as 40 patients a day, sitting briefly with each to review their medications, but refusing to play the role of therapist, and failing to offer validation for bruised feelings, enabling of various dreams of empowerment, a shoulder to lean on in life’s storms.
"This is about volume," one office manager to a beleaguered doctor said to the Times. "[I]f we spend two minutes extra or five minutes extra with every one of 40 patients a day, that means we’re here twp hours longer every day. And we just can’t do it."
Medicine, the quintessential helping profession, has responded to economic imperatives by abandoning a role it once cherished. The need medicine no longer seeks to fill goes unaddressed, so those in crisis turn to the other professional helping them to navigate the bends in their psychic rivers – lawyers. Yet few clients can afford legal services billed at an hourly rate. Princely though the hourly rates of lawyers appear to a layperson, the hidden costs of a practice are substantial, especially for small practitioners with a staff. All paying clients cross-subsidize those who cannot afford full freight, or any freight at all.
In recent years, I added employees to stay on the right side of the law with bar regulators. For a time, I had two paralegals, an office manager and a legal assistant or two. Their jobs were to respond to client inquiries, and to make sure that folks had access to the office, if not to me. I am in trial a significant part of the year, and am rarely in the office during normal business hours. This system worked well enough until the market in legal services tanked; last year I had to lay off a paralegal. A smaller staff had to do more with less. I hope we did all the regulators require; I make it a point to delegate each phone message to someone in the office, if only for the purpose of making sure the client has had contact with the office.
But to what end? We are inundated with calls from anxious relatives. Try as we might to explain we represent the son, not the mother, the avalanche continues. And then there are the calls of folks needing simply to be validated. I once received a phone message that a client was angry and needed to talk. "Hold it," I wanted to say. "I’m not your therapist." But I knew the bar would punish such a response, so I asked a paralegal to contact the client. In some cases, sadly, we ask the courts to permit us to withdraw from a case when a client needs more than we can reasonably offer. It is better, sometimes, to divorce than to burn, to bastardize Paul. I cannot not afford to work for pennies per hour responding to yawning need.
We’ve debated here adding a social worker or a clinical psychologist to our staff. We need someone who knows how to respond to the terrors that scream through a client’s night. I am simply exhausted by the non-stop woe; there is now such thing as a brief call when responding to a client in crisis. Some want to rehearse all the slights that brought them to your office periodically. I am not sure why, but listening is hard work; empathy draws from a limited supply of energy. But who will pay the mental-health worker? Most clients cannot afford a lawyer, much less a lawyer who employs a trained mental health worker.
So lawyers sit on the border line, representing folks who are sometimes at excruciating crossroads. These folks need care we cannot afford to give them, and which we are not trained to give. Medicine will not help them. Many of them are in the legal system precisely because their intrapsychic problems have led them to transgress the law’s norms. The medical profession gives itself a pass when it comes to these needs; the law requires its practitioners to do what medicine refuses to do. It is a recipe yielding nothing palatable for lawyers or clients.