The Ethics of Attorney Wellness

A burnout attorney is good for no one.

This article is brought to you by a serendipitous mishap where I believed I was short on CLE hours and paid $350 to get an extension… that I did not need. You’ll be happy to know that I win the award for the first time that has ever happened, according to Ms. Lori with the KBA. (This did not come with a special award, unfortunately, but did come with a refund and a giggle.)

So many attorneys let out a loud sigh when met with the word “wellness” these days. So what? What does wellness have to do with our job as an attorney? Why is it important?Attorneys disproportionately suffer from substance abuse disorders and mental health problems. 19% have anxiety, 21% have substance abuse issues, and 28% have depression. (The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, Krill, Patrick R. JD, LLM; Johnson, Ryan MA; Albert, Linda MSSW.) For me, these numbers seem low compared to my anecdotal evidence in speaking with my beloved colleagues.

Let me be clear: I’ll be the first to admit I struggle with anxiety and depression to varying degrees throughout different cycles of life. When I heard this CLE the issues that exacerbate those feelings rang true, so I share in the hopes of it connecting with someone else who is struggling to try to take a step back and see what they/we can do to try to mitigate, minimize, or alleviate these issues.

One question posed was the chicken or the egg, do depressed people become lawyers or do people who become lawyers become depressed? My answer: It doesn’t matter. The fact remains it is a pervasive and prevalent problem in our field that can quite literally be life or death. So, while others may be tired of talking about it, as long as I am given a platform to speak from, I am going to utilize it to try to help my friends.

Some contributing factors for attorneys this CLE spoke about were vicarious trauma, long hours, large caseloads, stressful workplace, and unreasonable expectations. I think we can all relate to varying degrees to each of these, especially as young lawyers who have little to no control over our caseloads and the pie-in-the sky expectations of some partners for our work.

If you are like me, you perked up and wanted to know more about what is vicarious trauma? Well, most of us see people when they are at their worst or dealing with the worst situation they’ve faced in their life: jail time, loss of physical ability, loss of a job, loss of their family as they knew it. As their counselor at law for these issues, we grow to be rather intimate with our clients on their traumas that lead them to our doors. With that, we get secondhand effects of helping them through their trauma. Even if we are compassionately detached, we cannot help but feel the magnitude these events have on our clients, if we are truly engaged and invested in helping them through.

There are also some common attributes we all share that add to the stress of the job, including maladaptive perfectionism, solver of other people’s problems, our ability to hide and mask our emotions (stuffing them down as we do not have time to process them), resistance to seeking help (big call out here), and our competitive nature. I think it is important to highlight these attributes we may tend to have in order to be more aware when they pop up in our lives to try to gently correct them. We are never going to be perfect, as much as we may try, we will only hurt and punish ourselves with that expectation. Strive to do your best, but realize even the best of us mess up and learn wonderful lessons from those mistakes.

Some possible causes for lawyers to disproportionately struggle with anxiety and depression, leading to substance abuse, are the adversarial nature of our work. We are constantly facing off with opposing counsel (or party) who is undermining/combating our work every step of the way. Another issue can be especially difficult clients, opposing attorneys, or (sorry to say) Judges. In my experience these are few and far between, but we all have certain people in mind who we know are just going to make things a little more difficult than they have to be, and how can that not affect our mental health in dealing with that just to do our jobs?

Other factors include deadlines, the serious nature of our work, stigma, and perception of weakness. There is still very much a culture of drinking in the legal field, be it happy hour events for networking, or firm or client meetings over drinks. There is a risk of isolation as a solo practitioner, and for younger attorneys, there is generally a lack of control over our caseloads and tasks.

With all of this said, young lawyers are at particular risk. [1] The Krill Study found that, contrary to previous studies, attorneys in the first ten years of their practice are now suffering from the highest rates of problematic use (28.9%), followed by attorneys practicing for 11-20 years (20.6%). The numbers continue to decrease when lawyers are in practice of 21+ years. This presents a clear correlation between being a young attorney, with little to no control who must “grind”, and being a senior associate, who is set and now gets to make the calls.

So, again, what effect does this have on our jobs?

Common misconduct resulting from a lawyers’ impairment include neglect on cases, financial misconduct, criminal/sexual misconduct, and further bar violations.

When we are struggling with anxiety, depression, or substance abuse and not properly addressing it, we can put forth incompetent effort into our cases. We can fail to respond to client inquiries, failure to appear at meetings or even hearings, missing statutes of limitations, and deadlines. SCR 1.1 and 1.3 mandate a lawyer is competent and diligent in their representation of a client, including providing the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation with reasonable diligence and promptness in representing a client. Additionally, Rule 1.4 mandates our effective communication with our clients in our representation. All of these are violated when we neglect our cases. We have all been here, and this can be a slippery slope to the even more serious infractions outlined below.

Financial misconduct is a lawyer 101 no-no. I believe on our first day of ethics in law school our professor told us, “Don’t sleep with your clients, and don’t take their money.” (We will get to the former issue later.) This is a very basic and easy issue to avoid, so why do we see our good friends in the headlines with these issues? It is that slippery slope, again. Some lawyers try to “float” themselves when they hit a hard spot, perhaps from neglecting their cases outlined above. They tell themselves, if I just take this little bit, I will turn around and repay the funds once I get this case. But it never happens, and they take more and more until they’re on the hook for thousands of dollars of their clients’ money. Rule 1.5 outlines how attorneys should manage their fees, and Rule 1.15 outlines our fiduciary duty to manage and preserve client funds when in our control. We violate these when we put ourselves in bad positions because we are not taking care of the underlying issues of anxiety and depression.

Some criminal and sexual misconduct that stem from underlying anxiety and depression include drunk driving, possession/sale of narcotics, assault, domestic violence, sexual assault, harassment, and perjury. These are all obvious no-nos not only for lawyers, but for people in general. Rule 8.4 outlines our duties to preserve our character as a lawyer by abstaining from this misconduct.

When we violate these rules, we can be disciplined by the bar to varying degrees. If we are neglectful and don’t follow the Court of Appeals rules, we can be issued a scathing Opinion outlining our poor advocacy, further shaming us into anxiety and depression. If we mismanage client funds, we can be criminally charged and face losing our law license all together. If we abuse alcohol it can reach a point so quickly that we get cirrhosis of the liver and pass away, leaving a hole in our family and community. These are serious problems that can lead to dire situations. So, what can we do to get help?

First, we have to recognize and admit the problem to ourselves. This is so very difficult because only you can do this for you. Others can gently point out there may be a problem, but if you are unwilling to admit it and face it yourself, it is a moot point. Once we admit to ourselves we are struggling, we need to be proactive and seek help and solutions to fix that problem. It is not enough to just say yes, I am struggling, we must then actually do something about it. That takes a lot of bravery and courage to be seen having a “problem” (a problem that, in my opinion, everyone struggles with in their own ways.) We have resources through lawyer assistance programs, such as KYLAP. There are programs to help addictions and mental health treatment. For more daily, less acute, upkeep it is important to focus on your wellness. Develop habits and routines to build consistency in showing up for yourself into your life, such as working out in the morning, turning your phone off and reading or watching a fun show before bed. It helps to find activities you enjoy, and don’t be afraid of trial and error. I used to think I would hate yoga because I was rather stiff from my Crossfit days. I was brave enough to try. It, and now it is one of my favorite activities that helps ease the anxieties of my life. It is so important to create a work/life balance. Our age of instant gratification with emails and social media feeds fuel to the fire that we always must be “on.” We are met with harsh judgments by others who do not know the day in and out of our lives when are tell them we are not available, or they must wait. I challenge you to stand firm when standing up for yourself with your work/life balance. Those tasks can wait, and it is rare that a true emergency comes across our plates. Put yourself first so that you can give fully to others.

Some further tips for solo practitioners at home: when you’re home, be home (don’t work!), create healthy eating habits, practice good sleep “hygiene,” engage in activities that bring you joy, stay in touch and enjoy time with your friends and family, and make your space relaxing and a sanctuary from the (at times) harsh outside world.

At work: keep regular hours as much as possible, find ways to stay organized, set aside time to eat (calendar reminder if you need one), find and cultivate coworking relationships, and participate at your local bar association (hi!) to cultivate even more friendships. We strive to have activities that fit all of our wonderful bar members, please come and join us for our next event to not feel so alone in all of this.

[1] Krill PR, Thomas HM, Kramer MR, Degeneffe N, Anker JJ. Stressed, Lonely, and Overcommitted: Predictors of Lawyer Suicide Risk. Healthcare (Basel). 2023 Feb 11;11(4):536. doi: 10.3390/healthcare11040536. PMID: 36833071; PMCID: PMC9956925.