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In 2018, the American Bar Association (ABA) Task Force issued its Report on Lawyer Well-being, analyzing the results of two 2016 studies:
(1) the ABA CoLAP and Hazelden Betty Ford Foundation Study on Lawyer Well-Being, and
(2) the Survey of Law Student Well-Being. See https://www.americanbar. org/content/dam/aba/images/abanews/ThePathToLawyerWellBe-ingReportRevFINAL.pdf.
Both studies found that lawyers and law students are at increased risk of chronic stress, anxiety, depression, substance abuse disorders, suicide risk, social alienation, work addiction, sleep deprivation, job dissatisfaction, and work-life conflict. Id. The Report concluded that “[t]o be a good lawyer, one has to be a healthy lawyer.” Id. The ABA urged bar associations to provide educational programming and open the conversation about attorney well-being.
While we might have started to talk about attorney well-being in 2018, I would suggest that the pandemic in 2020 accelerated the need for such conversations. As the whole world experienced increased stress, anxiety, depression, substance abuse disorders, suicide risk, social alienation, loss of work-life boundaries, work-life conflict, sleep deprivation, and job dissatisfaction, if we weren’t talking about lawyer well-being in 2018, we certainly need to talk about it now.
WHAT IS LAWYER WELL-BEING?
The ABA Task Force Report defined lawyer well-being as:
a continuous process whereby lawyers seek to thrive in each of the following areas: emotional health, occupational pursuits, creative or intellectual endeavors, sense of spirituality or more significant purpose in life, physical health, and social connections with others. Lawyer well-being is part of a lawyer’s ethical duty of competence. It includes lawyers’ ability to make healthy, positive work/life choices to assure not only a quality of life within their families and communities, but also to help them make responsible decisions for their clients. It includes maintaining their own long-term well-being. This definition highlights that complete health is not defined solely by the absence of illness; it includes a positive state of wellness. Id. (emphasis added).
The Task Force noted its definition of “well-being” embraces a broad, multi-dimensional approach encompassing complete health, including “for example, engagement in interesting activities, having close relationships and a sense of belonging, developing confidence through mastery, achieving goals that matter to us, meaning and purpose, a sense of autonomy and control, self-acceptance, and personal growth.” Id. The Task Force issued a call for action for the legal profession, noting that “[c]hange will require a wide-eyed and candid assessment of our members' state of being, accompanied by a courageous commitment to re-envisioning what it means to live the life of a lawyer.” Id.
The Report Identified 6 Dimensions of Lawyer Well-Being, including:
Occupational: Satisfaction, Growth, and Financial Stability;
Emotional: Manage Emotions & Protect Mental Health;
Physical: Healthy Lifestyle, Help-Seeking When Needed;
Intellectual: Learn, Pursue, Challenge, Keep Developing;
Spiritual: Meaning & Purpose; and
Social: Connection, Belonging, Contributing.
The Task Force identified five central themes for targeted action:
(1) Identifying stakeholders and the role each of us can play in reducing the level of toxicity in our profession;
(2) Eliminating the stigma associated with help-seeking behaviors;
(3) Emphasizing that well-being is an indispensable part of a lawyer’s duty of competence;
(4) Educating lawyers, judges, and law students on lawyer well-being issues; and
(5) Taking small, incremental steps to change how the law is practiced and how lawyers are regulated to instill greater well-being in the profession. Id.
The Task Force made various recommendations for action, including that leaders should demonstrate a personal commitment to well-being, facilitate, destigmatize, and encourage help-seeking behaviors, foster collegiality and respectful engagement, including DEI efforts and mentorship opportunities, take steps to enhance lawyers’ sense of control, provide educational materials, guide and support the transition of older layers, and begin a dialogue about suicide prevention. Id.
THE RULES OF PROFESSIONAL CONDUCT: A HEALTHY LAWYER IS A COMPETENT LAWYER
The ABA Task Force recommended that State Regulators modify the Rules of Professional Responsibility to Endorse Well-Being as Part of a Lawyer’s Duty of Competence. In 2019, Vermont amended its RPC 1.1 to add Comment [9]:
[9] A lawyer’s mental, emotional, and physical well-being may impact the lawyer’s ability to represent clients and to make responsible choices in the practice of law. Maintaining the mental, emotional, and physical well-being necessary for the representation of a client is an important aspect of maintaining competence to practice law.”
Tennessee has not amended its Rules of Professional Conduct (“TRPC”) to include any such requirement. However, as lawyers we use our brains, so we cannot ignore that being a lawyer requires us to take care of our brains and our mental health. The TRPC requires that “In all professional functions a lawyer should be competent, prompt, and diligent.” Preamble [5]. RPC 1.1 specifically provides that “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” TRPC 1.1. RPC 1.3 further requires that “A lawyer shall act with reasonable diligence and promptness in representing a client.” TRPC 1.3. Comment [2] to RPC 1.3 outlines that “[a] lawyer’s workload must be controlled so that each matter can be handled competently.” Comment [2]. Comment [3] outlines that “Perhaps no professional shortcoming is more widely resented than procrastination.
A client’s interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client’s legal position may be destroyed. Even when the client’s interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness.” We put off tasks that make us feel uncomfortable, that bring up thoughts, feelings, and emotions. Procrastination is an emotional issue, not a time management issue, and thus the TRPC impliedly requires us to be able to regulate our emotional and mental well-being as part of our duty of competence.
WHY DO LAWYERS STRUGGLE WITH WELL-BEING?
There are numerous reasons law-yers struggle with well-being. Our training in law school develops our “Lawyer Brain” to anticipate problems and worst-case scenarios, which is helpful for advising clients, but not helpful for personal mental health. We also tend to be perfectionists, and our work often demands long hours, particularly where our time is billable. Lawyers can also suffer from compassion fatigue, as we take on our clients’ problems as our own, which can lead to rumination and an inability to turn off the brain and relax.
There are still stigmas associated with seeking help, particularly where admitting we need help might raise professional liability implications and suggestions of violations of the RPC. The COVID-19 pandemic brought its own challenges, but also highlighted ways in which changes could be made, including options for remote work and remote court hearings and depositions made possible with the use of technology. While technology has made our lives easier in a lot of ways, the increased connectivity and accessibility can lead to blurred boundaries, whereby it is easy to feel as if we are always at work. Generational and cultural attitudes towards work and family life are shifting, but we should acknowledge that the demands of being a lawyer and having a family are challenging. It is important that we acknowledge the struggles of being a lawyer and open the conversation about how we might better address lawyer well-being.
Experts recommend lawyers focus on the following for “self-care:”
(1) remember your “why”/purpose;
(2) prioritize sleep and rest;
(3) assess boundaries;
(4) build rituals and routines;
(5) practice mindfulness;
(6) nutrition and physical health (healthy diet, hydration, regular exercise);
(7) practice gratitude; and
(8) play.
I have found that incorporating regular movement and practicing mindfulness and meditation has been helpful to my mental and physical well-being. Even small amounts of movement can have a significant impact on both physical and mental health, including stretching, yoga, running, walking, or any form of exercise that you enjoy. Regular movement helps to strengthen muscles (stability, balance, coordination), build bone density, build joint flexibility and function, brain functioning including improved cognition and improved mental health, and improved heart health including reduced heart disease, and lung health.
WHAT IS MINDFULNESS?
Mindfulness is simply focusing on being present in the moment, without judgment. See Why Mindfulness is a Superpower, https://www.youtube. com/watch?v=w6T02g5hnT4&t=8s.
You might already be using mindfulness in your life and law practice without even realizing it. For example, when you take a deep breath before hitting “send” on a reactionary email or when you take a deep breath when someone says or does something that triggers an emotional reaction. Mindfulness helps us to avoid being triggered into an emotional reaction, which can be very helpful in life and law practice.
There are many ways to incorporate mindfulness into your daily routine, including breathwork and meditation (guided or unguided), and simply focusing on being intentional with your time, thoughts, actions, schedule, and tasks. Mindful eating and nutrition (including eating healthy and hydrating) can be helpful if you struggle with skipping meals or eating fast food when you get busy. Regular intentional movement such as stretching, yoga, running, walking, or other forms of exercise can be mindful as well when they allow you to focus on being in the present moment. Learning to set boundaries and disconnect by turning off notifications can be very helpful in giving your mind time to detach from work. Engaging in hobbies like pottery, music, movies, drawing, painting (anything that brings you joy), getting outside, spending time with pets/children just playing in the present moment can be healing for the brain and improve mental health. Prioritizing rest and sleep, and even taking time for self-care like getting a massage, facial, manicure, or pedicure can be considered a mindful exercise when it allows you to detach and clear your mind.
MINDFULNESS TOOLS: RAIN AND MEDITATION TECHNIQUES
One helpful tool to cultivate mindfulness is the RAIN acronym, which teaches us to RECOGNIZE (the stimulus, triggers, emotions); ALLOW them to just be (and accept without judgment); INVESTIGATE (where do you feel it in the body; what is it telling you); and NURTURE (by cultivating self-love and self-compassion). See https://blog.calm.com/tara-brach-home-practice/rain-the-power-of-inquiry.
MINDFULNESS TOOLS: MEDITATION
There are several different types of meditation, including breathwork, mantra, body scan, visualization, loving kindness/metta. Most people start with guided meditations, and there are many guided meditations available on YouTube, podcasts, and apps. I recommend you try different types to find what works for you. You can even take a walking meditation, which is as simple as getting outside and using your senses to see, hear, smell, and observe the world around you. We are only starting to understand the benefits of regular mindfulness and meditation, but studies have shown scientific benefits, including objective testing to support that meditation can change the brain and lower blood pressure and stress levels. Meditation creates space in the mind to handle new things. It helps us to make space between the stimulus and response and avoid triggers, allowing us to be intentional and deliberate versus being reactive. It can give us a break to get the energy to do something else. It can help with giving yourself time, space, and opportunity to label thoughts and emotions and cultivate awareness and presence. It can help to quiet the mind and turn down the volume on mental chatter. It can help to create discipline in the mind and sharpen focus. Loving-kindness meditation reminds us that we can soothe ourselves in times of stress and cultivate self-compassion versus self-judgment.
Meditation also helps to improve information processing so that we do not jump to react: (1) observe; (2) input; (3) interpret; (4) process; (5) evaluate options; (6) plan; (7) react (steps 4-6 get missed when the fight/flight response kicks in).
CONCLUSION
It is important that we talk about lawyer well-being. We must commit to addressing our own mental health, and we should be prepared to share with our colleagues this commitment and the tools that can help us to be healthier, competent, lawyers.
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HANNAH LOWE has practiced insurance defense litigation since 2011 and currently works for Farmers Insurance Exchange Claims Litigation Department, Tennessee Branch Legal Office. Hannah is originally from England but has lived in the United States since 2003. She graduated from the University of Tennessee College of Law in 2010. She may be reached at h.lowe@farmersinsurance.com.