Mapping the DNA of a Lawyer's Well Being

"To be a good lawyer, one has to be a healthy lawyer."

So begins an August 2017 report from the National Task Force on Lawyer Well-Being.

The problem with this statement, however, is that it is a false comparison.

Some of the best attorneys I have known are "not healthy."

One suffers from terminal brain cancer, but continues to practice and serve her clients well.

Another took a heavily contested custody dispute to trial - and won - days after chemotherapy for late-stage breast cancer. Several attorneys I know deal with daily prostrating migraines, lupus, diabetes, immune disorders, high blood pressure, and worse.

I don't think anybody would ever say that to be a good lawyer, you cannot have high blood pressure. It would be shocking and absurd to hear someone say, "You know those breast cancer survivors just aren't competent lawyers."

The folks that equate lawyer wellness and lawyer competence tend to respond that "We didn't mean THAT kind of 'healthy' - we meant, you know, the kind of healthy that doesn't involve mental health problems, drinking, gambling and doing drugs."

Or a sentiment to that effect.

When you read statements like the "Healthy Lawyer" quote above, you are really hearing a dog whistle:

"To be a competent lawyer, you cannot have mental health issues."

That sentiment is patently false. Many successful attorneys have been diagnosed with PTSD, anxiety, depression and an array of other mental health conditions and still succeed and thrive in the practice of law.

And because it is not true, the sentiment does little to curtail the epidemic of suicide or other problems in the legal industry. It may even perpetuate those problems.

Yet equating an attorney's mental health with competence remains the "party line" for legal regulators, bar associations and others studying and monitoring the legal profession around the country.

The definition of a problem that is devoid of substance adduces solutions devoid of substance.

Here are 6 "solutions" you might frequently see a bar association or "ethics expert" propose to solve the problem of lawyer wellness:

1. Attorneys should begin a dialog about suicide.
2. Attorneys must reduce the stigma surrounding mental health treatment.
3. We need to improve our Lawyer Assistance programs to reduce the fear of reciprocity and discipline for mental health treatment.
4. Attorneys must prioritize lawyer wellness (so long as it doesn't de-prioritize their profession, their firm, their business, their clients, their reputations, etc.)
5. Bar regulators need to modify the Rules of Professional Responsibility to include attorney well-being as part of the duty of competence.
6. Lawyers need to strive for "work-life balance."

All of those ideas sound reasonable. None seem to be having any significant impact.

For example, talking about suicide gets us nowhere. Veterans - 22 of whom kill themselves every day - have been having a decades-long dialogue about suicide and the suicide epidemic in our category. Yet, the needle on the daily suicide rate has never improved in a significant way.

Talk is cheap. "Beginning a dialogue" is the corporate equivalent of a punt.

"I don't have an answer, someone else has to figure this out."

Likewise, the concept of "work-life balance" is illusory. Ask the authors of these reports to define "work-life balance." They will struggle to give it meaning, even while clinging, to their dying breath, to the idea that the law license and the client must always come first.

Work-life balance is a mirage. You can chase it across the desert of life and you will never ever find it.

And consider the ramifications of including attorney well-being as part of the duty of competence in codes of professional responsibility.

Attorneys will then have REAL reason to expect they will be disciplined or lose their license if they are diagnosed with a mental health condition that some bar regulator believes impacts the attorney's legal competence.

All of these problems overlook one critical factor that contributes more to the demise of lawyer wellness than anything else.

The Problem is the Way We Practice Law.

Courts expect perfection from practitioners, with attorneys jailed for saying words like "fuck," marginalized for showing up in court wearing a dress, castigated for too many typos in an appellate brief, and punished with un-flexible rules surrounding extensions and filing deadlines.

As Cliff Claven might say, here are some little known facts: Cursing at government officials is constitutionally protected free speech. And, intelligent people cuss more. So take that, prudish judges.

Judges frequently make clear their contempt and disdain for attorneys trying to make a living.

Senior Judge Hagel of the US Court of Appeals for Veterans Claims - an Article I Federal Appellate Court - compares attorneys to greedy bottom-feeders in his dissenting poem in Young v. Shinseki.

Judge Falvey and Judge Pietsch, both of whom serve on the same Court as Senior Judge Hagel, use the opening lines of a 2019 dissenting opinion to show their disdain for attorneys, suggesting their fee petitions under the Equal Access to Justice Act (EAJA) treat the public treasury as "a trough to be raided by counsel in 6-minute increments."

Neither Judge Falvey nor Judge Pietsch have, to my knowledge, practiced veterans law from the trenches. If I'm wrong, I would very much like to know.

Clients often have unrealistic expectations. They use the legal system and lawyers as tools for revenge and not justice. They treat attorneys like their own emotional punching bags, often yelling and screaming and taking out their frustrations on our staff. Most clients bring to the attorney's doorstep some of the most difficult life situations a person can face.

One of my first (and also my last) family law cases involved helping a black man in Texas fight for custody of his daughter. The State of Texas took his daughter away because, when the child was at her mother's, the mother continued to work as a prostitute. Dad - my client - had done everything right. But he was a black man in the whitest part of North Texas, it took me a year to get his daughter out of foster care. One year after our victory, my client succumbed to sickle-cell anemia and died. Lawyers aren't trained to handle that kind of trauma and heartache.

And let's not leave out opposing counsel. I don't need to tell lawyers about the tactics and behavior of the attorney on the other side of the aisle.

An attorney who has practiced 3 decades before several Federal Circuit Courts of Appeal, including the United States Supreme Court, summed up the experience of working appeals with the VA Office of General Counsel: "They are petty and arrogant and vindictive - young lawyers whose bosses have never taught them how to carry themselves like professionals."

Those aren't my words.

And I refuse to agree that all VA OGC attorneys are like that.

Many OGC attorneys are great attorneys and great people. There are many who I truly enjoy working with or talking with. In private conversations with more than one, they face the same pressures of heavy caseloads, oppressive workloads, and lack of autonomy that we face in the private bar.

But my colleague's description is a sentiment that rings true across our profession: it is easier to fight dirty to get past obstacles in our cases than it is to build effective and lasting working professional relationships built on a foundation of civility, respect, and trust.

Add to the mix the pressures we face from bar regulators, power dynamics between law firm employees and legal employers, the financial pressures of making a living and being responsible for other people's salaries, a predominantly white male culture in the legal profession, and the lack of any focus on lawyer wellness in law schools.

Looking at the practice of law through that lens, we can see it has long since ceased to be a "learned profession." Every day as a lawyer can feel like "survival of the fittest."

So what's the solution?

How do attorneys navigate, in a healthy way, a profession built on foundations of trauma, stress and competition?

I think the solution requires attorneys practicing law to change the way we deliver legal services.

Rather than perpetuating archetypes of "zealous advocacy" for the client and "heroic sacrifice" for the rule of law, and rather than prioritizing the client or "justice" over all other aspect of an attorney's life, we must, collectively and individually, change the way we practice law.

In a sentence, we can organize our priorities to fulfill our purpose(s), assert control over our daily work and lives, carve out autonomy in our decisions of who we represent and how we practice, and surround ourselves with relationships and relatedness that empowers and energizes us.

The 5 Spheres of Lawyer Wellness

Those solutions - what I call the Five Spheres of Lawyer Wellness - are inter-related and inter-connected.

I list them below, but they are by no means ranked in any sort of heirarchy. Each sphere is its own domain, and each sphere overlaps with each other sphere in differing degrees for each unique person.

But this much is predictably true.

Whether you are a sole-practitioner or a government attorney, a 1st year associate at a Big Law firm or a 2nd year law student, shaping your practice of law using these these 5 spheres is guaranteed to change how you experience life.

Sphere #1: Purpose.

At its simplest, your purpose is the identification of what you seek to accomplish.

This element of your well-being is the most critical - without a purpose, you are a ship adrift on the ocean of life.

However, defining one's purpose is also the most fluid sphere of lawyer wellness.

Our purpose changes as we grow in age or the circumstances of our lives change. My life purposes shifted overnight when our youngest son was born with a disability.

Our purpose gets more clarity when we get a deeper understanding of what it is we want to accomplish or who we want to be. They shifted again when a very close friend died of an aggressive cancer and I had a stark reminder of how short and valuable each day of life truly is.

Our purpose changes when we have an epiphany and realize we are on the wrong path in life.

Learn more about "Purpose" by clicking here.

Sphere #2: Priorities

Rare is the person who has a single purpose in life.

In reality, there is so much that each of us wants to accomplish, and those things are so varied that they don't neatly fold up into a single purpose or mission.

One thing I want to do in my life is to help parents of children with special needs incorporate physical fitness into the live of their child.

Another thing I want to accomplish is to build a unique law firm that embodies the 5 principles listed here.

Which is more important? Which can I work on now?

Establishing priorities is the ranking of a variety of purposes based on what can and should be done now, and what can or should be done later. Priorities have little to do with time, and more to do with what is most intensely calling for your attention.

If your multiple purposes in life - being a good dad, reuniting immigrant families, running a marathon in every state, the perfect round of golf - are like apples on a tree, which are the most ripe for picking?

Priorities are the ripening apples.

Sphere #3: Control.

If priorities are an assessment or ranking of the ripeness of your many purposes, control is your ability to define how you allocate time to each of those priorities.

Most lawyers have little, if any, control. Even as a sole practitioner, I have found that a school event for my son and a briefing deadline for an appeal are both, metaphorically speaking, equally ripe priorities.

But, for a number of reasons, I have to choose between the two.

Control is the ability to make the choice that aligns with your priorities, your desires, and your needs - not the priorities of a boss, a client, a court, or some other extrinsic factor.

Sphere #4: Autonomy.

At its simplest, autonomy is having freedom and discretion over your job.

If you want to step back into its philosophical roots, autonomy is the ability of an individual to live life according to an objective moral measure, not one's subjective whim and desire.

An attorney who has autonomy gets to choose her clients, choose the legal issues he commits his time and energy to, is able to argue those cases in the way that fits her life philosophy, not the policies and protocols of some big corporate or government cabal.

An attorney who lacks autonomy has to take cases he otherwise wouldn't just to pay the bills.

She cannot say no to an abusive client because of the billable hours the client's work generates for the firm.

He can't argue the case the way he wants because it doesn't fit with the firms conservative (or progressive) approach to legal issues.

Sphere #5:Relationships.

Most of the prognosticators and pontificators in the legal industry (i.e., legal business coaches) will talk about relationships as if they are one dimensional. Build relationships with people who send you business, with whom you've done business, and with whom you would like to do business.

And while you should be doing those things, building relationships into your law practice deals so very little with those relationships.

When I talk relationships, I'm talking about the people who educate you, who mentor and motivate you, who show you the ropes and help you navigate the difficult waters.

I was once in a mastermind group with business owners from many different industries.

In one of our meetings, the owner of a pool cleaning company said "You are only as successful as the relationships you have."

That statement has proven to be an onion, with new and deeper layers every time I think about it.

Look at the relationships around you.

See how closely they align with your current station in life. Assess whether those relationships are fueling your purpose, priorities, autonomy and control.

Do you meet regularly with your physical doctor? Your mental health care provider? Is your accountant's purpose aligned with yours? Are your colleagues priorities parallel or counter to yours? Who is your mentor? Do you even have a mentor?

And relatedness has I'm not talking about just professional and personal relationships.

This sphere also includes nurturing a relatedness between the attorney / firm and the communities where we serve, the groups we associate with, and the systems and processes that we interact with and rely upon every day.

Over time on this blog, I will return to these 5 Spheres of Lawyer Wellness.

The secret to lawyer wellness is, in my nascent opinion, is to focus not just on these spheres as individual zones, but as interlocking pieces in a puzzle.

When all the edges are lined up, you can see a beautiful image of who you are and who you are striving to become.

My hope is that this post has opened a new window into how you approach, or conceptualize, the practice of law and your law practice.

Please share your thoughts, comments, and opinions, below.