f/k/a archives . . . real opinions & real haiku

Who needs ethicalEsq, when we’ve got Supreme Court Justice Sandra Day O’Connor saying all the right things about the condition of lawyers and lawyering in America today?  Justice O’Connor’s address to an audience at U. Wyoming School of Law is covered in an article in today’s Casper, WY, Star-Tribune (“O’Connor: Lawyers ‘unhappy lot’,” 03-17-04; thanks to Howard for the pointer.).

Here are a few telling excerpts from the article:

  “Job dissatisfaction among lawyers is widespread, profound and growing worse. . . I think the decline of professionalism is partly responsible for this state of things,” O’Connor said.

 “Lawyers have to do more than know the law and the arts of practicing it,” the justice said. “A great lawyer always remembers the moral and social aspects of an attorney’s power and position.”

“It has been said that a nation’s laws are an expression of its highest ideals,” said O’Connor, “while the conduct of some lawyers in the United States has sometimes been an expression of its lowest.”

 “A win-at-all costs mentality sometimes prevails,” she said. “Many attorneys believe that zealously representing their client means pushing all the rules of ethics and decency to the limit.”

Now, if we could just get the Justice to take over this weblog.   I wonder if she likes haiku?

. . me?

Cheap shot, David. Get to know me better before calling my ethics into question.

• You can decide for yourself whether I took cheap shots at Matt.   Part of my position on marketing and branding by lawyers is that it concentrates on subjects that are rather superficial, and are thus quite amenable to spoofing

• For example, it’s been ten weeks since I first raised questions about the practice of “value billing” by lawyers.  I raised it in reaction to Matt Homann’s praise of value billing.  And, I have literally checked his site every day since then to see if Matt has more fully explained his approach to value billing.  Since I agree with him that hourly billing has many problems, I would love to find an approach to value billing that is fair to both lawyer and client.  I hope Matt will soon unveil a roadmap to achieving that goal.

  Pulling my punches because I like, admire, or enjoy a particular attorney is not, in my view, an appropriate way to run this weblog.  Being an ethics watchdog is not fun — especially for someone who genuinely likes people and likes to please them.  If someone else is out there ably doing the legal watchdog role, or the profession already does a great job policing itself, please let me know, so ethicalEsq can retire and let haikuEsq run this website (perhaps with some help from the cuddly skepticalEsq). 

As if there weren’t enough deception in the world, Inter Alia  has uncovered software that allows cell phone callers to “add a background sound to any incoming or outgoing call, giving the impression that you really are in the environment where the background sound is normally heard.”   This tawdry product uses the catchphrase “hide behind sound, make it your alibi.”  Their sales pitch says:

  You can pretend you have another phone call, or are in a traffic jam, at the dentist, in the park, on the street, caught in a thunderstorm, near heavy machinery or at a circus parade.  In fact, “The possibilities are endless!  You can even use your own prerecorded sounds or sounds downloaded from the Internet.”

. .

I can already imagine cell phones equipped with the sound of church organs, or a crying baby, and can’t wait to hear background sounds that conjure up the modern workplace or library.

You may have noticed that I haven’t mentioned the product, nor linked to it.  I have no intention to help my readers find it.  What I would like to do, however, is to remind lawyers of their duty to avoid conduct involving dishonesty, fraud, deceit or misrepresentation. (Model Rule 8.4,  DR 1-102)   In my opinion, the use of such “background falsifiers” in a professional context — e.g., to deceive a court, client or opposing counsel — should be grounds for discipline.

In a world where honesty and integrity is valued less and less — and where many lawyers (as well as politiicans, spouses and teenagers) engage in misleading word parsing and seem to be proud of it — we need to just say no to technology that makes deception easier than ever to accomplish.  And, sadly, we need to be on guard against falling victim to such deception.

• Update (03-18-04):  (sigh) Nancy of The Stark County Law Library Blawg says that Inter Alia’s “Tom Mighell found a real gem!”  To paraphrase the recent great Parsedent of the USA, “I did not have phone sex with that Librarian.  I was at the dentist at the time.”

Since we wrote last month about the assigned counsel fee controversy in Massachusetts, the editorial board of Massachusetts Lawyers Weekly has officially opined that Governor Romney’s constitutionally-questionable, three-prong “reform” plan is “worth a try.”  (MLW, “A New Plan for Bar Advocates,” 03-08-04)  I have neither the energy nor the patience to describe all the things wrong with this mess of an editorial, but I urge you to take a look.  You can find the editorial here,

. .

Suffice it to say that, if this editorial were a brief on the merits of the plan, its authors could easily be charged with malpractice.  The lack of research; the failure to address major issues; the twisted reasoning; and the tortured prose, all suggest a want of competence and diligence.   The only sign that an advocate wrote the piece is its unwavering devotion to the Governor’s plan.

An excellent response has been written by William J. Leahy, the chief counsel of the Mass. Committe for Public Counsel Services (which administers the state’s assigned counsel program and employees public defenders).  Salem, MA, attorney Robin J. Adler, has also written a strong dissent on the MLW editorial. 

The Editorial ignores or brushes off the major arguments raised in opposition to the Plan by CPCS and by The Massachusetts Association of Court Appointed Attorneys, which has been trying to establish a funding mechanism that meets constitutional requirements and assures assigned counsel fair compensation for their legal services. 

• 
  
  Most important, as stated in an MACAA press release issued 02-26-04:  “Constitutionally mandated court functions must be fully funded by direct appropriation. Contingent funding for core court functions and indigent representation is unconstitutional. Funding public defenders from indigent counsel fees was found unconstitutional on February 12, 2004 in Minnesota, and has been found unconstitutional in other states.” . . .

The Governor’s proposal to use so-called “retained revenue” to fund constitutionally mandated core functions constitutes contingent funding, illegally attempting to balance the Commonwealth’s budget on the backs of the poor.

  The MLW editorial doesn’t even mention the constitutional issue, despite a recent decision from the Minnesota Supreme Court, which we discussed here, finding co-pays by indigent defendants unconstitutional.  The Board does raise, but is not deterred by, the plan’s proposed contingent payments for motions to suppress — no fee for unsuccessful motions.  Worse, the editorial passes over the fact that in many respects, assigned counsel will be paid less under the Romney/Winslow plan.  The philosophy seems to be: things are so wrong that anything, any change is worth trying.  The Board is wrong.

• 
  
  
  

  Only last August, the Portsmouth Herald quoted David Yas, the editor of MLW, as saying that attorneys for indigent defendants are ”the forgotten stepchildren of the legal system.”  Moreover:
  

  
  

  
  

  ”They get paid peanuts, when the state feels like paying them, and they handle bottom rung cases without a trace of fanfare,” he said.  The problem, Yas said, is that lawmakers control the funding, and neither the lawyers nor their clients are a strong constituency.  . . . [T]he situation is reaching a ”breaking point,” and the public needs to realize better pay is a safety issue.”

  
  

  
  

  Yas concluded:  ”This is a point where (attorneys) have to make particularly loud noises because it’s at a point where it’s particularly bad.”  Maybe that’s why he wrote such a dreadful editorial — he wanted to get Massachusetts assigned counsel making really loud noises.  Well, it worked. 

Update (03-17-04): David Yas, Publisher/Editor of Massachusetts Lawyers Weekly has sent me the following clarification:

This “blog” contains an inaccuracy that I’d like to correct. It states that I “wrote … a dreadful editorial.”  Whether the editorial is “dreadful” is obviously a matter of open debate (and we are doing our best to air all the substantive criticism this editorial has spawned).  But I didn’t write the editorial.  As the editor of the paper, I edited it, but our editorials are a product of our 30-member board. My personal opinion has very little or nothing to do with our editorials.  As far as my comments as quoted by the Portsmouth Herald, I’m glad to see them here. (They are completely accurate.)  My colleague wrote on this Forum earlier that Lawyers Weekly has, in the past, been a defender of court-appointed lawyers (many of our past editorials on the subject consistently reminded readers that these lawyers are underpaid).  My quotes, which if memory serves were delivered to the Associated Press and picked up my many newspapers, are consistent with our historic support of bar advocates.
David Yas
Publisher/Editor-in-Chief
Mass. Lawyers Weekly

• (03-17-04) Massachusetts Assigned Counsel activist Deborah Sirotkin Butler, Esq., emailed this positive reaction to Dave Yas’ statement:

“This post from David Yas is in character.  Since the publication of the original, problematic editorial on March 8, 2004 David Yas and MLW have opened their publication to letters and responses, and shown a real willingness to examine the issues involved in a well-rounded and truly gracious manner.”

“You inherited a fortune . . You hired a lawyer . . Now it’s his fortune.”

It was a pretty funny lawyer joke, but two Colorado bar groups were so offended that they’ve forced the Denver/Boulder branch of the Better Business Bureau to pull its 15-second “check with us first”  tv ad from the air.  The BBB’s sin: daring to suggest that consumers might obtain useful information about lawyers from the Bureau.

“With 12 members voting, the committee advised the BBB to pull the ad and reword the narrative. One suggestion called for revising the “You hired a lawyer” line to ‘You hired the wrong lawyer.'”

The local BBB president complied, noting:

“I don’t agree with them . . . but I don’t want to go around ticking people off,” said Jean Herman, president and chief executive of the Denver/Boulder BBB. “I have to respect their opinion.”

“[O]ur goal was not to have that ad on TV anymore.”    ..

“For them to hold themselves out as having some special knowledge about attorneys is really inappropriate.”

• The effectiveness of the ads almost certainly bothered the Colorado lawyers — there was a fourfold increase in consumer inquiries last month on legal services, compared to February 2003 (from 158 to 639 requests for a “reliability report”).  But, I have to credit spokesman Martin for his frankness about their primary purpose — the bar groups want no monitoring of lawyer conduct and client complaints by nonlawyer organizations (especially not respected ones).

“Complaints involving marketplace activities — misleading advertising, improper selling practices, non-delivery of goods or services, misrepresentation, un-honored guarantees or warranty, unsatisfactory service, credit/billing problems, contracts not fulfilled, etc., are handled by the Better Business Bureau where the company is located.”

“BBB does not take either side in a dispute. Instead, we work to facilitate communication between the company and the consumer, to help both sides come to a satisfactory resolution to the complaint.”  It does:

• Advocate mediation to resolve disputes
• Award only two levels of ratings to businesses –  “Unsatisfactory” or “Satisfactory”
• Emphasize preventative steps to avoid a dispute, not just remedial steps after it has occurred
• Gather and deliver information about buyers/sellers in an objective manner
• Give all sides in a dispute a fair and reasonable chance to cure/resolve
• Help consumers make informed pre-purchase decisions
• Keep records on all sorts of transaction-related disputes over a three-year period

• To oppose such processes — and especially to fear the use of data banks that help consumers make better-informed choices among lawyers — makes it clear that lawyers put their own interests above those of their clients.  That is not funny at all.
• In case your are wondering, the Colorado BBB does have quite a few lawyer members, who willingly subscribe to its code (often as a useful marketing tool).  For example, the 15-lawyer business firm, Minor and Brown, PC.

Update (03-17-04): In a well-crafted post on this topic, Overlawyered.com notes, “Now suppose that some other profession or industry — medicine, say — were to assert that its mysteries are so esoteric, and its success in self-regulation so complete, that lay observers should not presume even to compare notes with each other on their bad experiences with it. Hard to imagine, these days, isn’t it?”

No, it’s not Sweeps Week, and the topic is neither legal ethics nor haiku. But, I just have to say something about the current advertising campaign for the drug Cialis� in its battle against ED.

You’ve surely seen the ads: A couple side-by-side in matching, outdoors bath tubs, with a gorgeous sunset, and the catchy phrase, “if a relaxing moment turns into the right moment . . . will you be ready?“

The tone and esthetics seem just about right for the medication’s Middle Aged target audience (and their partners). But, I’ve been thinking the lovely scene was merely foreplay for the usually-anticlimactic side-effects warnings.

Normally, pharmaceutical ads end with an annoying rush of speed-talking, cramming in a lengthy litany of warnings about who should not take the drug and the possible side effects. But the Lilly-ICOS-Cialis ad is very different. The voice-over is clear, and the speech slow and calm, working up to the only truly serious side effect to be mentioned:

The most common side effects with Cialis were headache and upset stomach. Backache and muscle ache were also reported, sometimes with delayed onset. Most men weren’t bothered by the side effects enough to stop taking Cialis. Although a rare occurrence, men who experience an erection for more than 4 hours (priapism) should seek immediate medical attention.

. . settle for 2 hours?

Did you catch that last side effect? I added the bold here, but I have the feeling that most men (and a lot of their partners) add the emphasis for themselves. Four Hours. And, maybe they next think, “Okay, he said it’s rare, but I’d settle for one or two hours.”

Is this just the same old skepticalEsq cynicism? Could be. But, there are quite a few other warnings that might have been added to that list — e.g., Cialis is not to be used by women or children under 18, or men with certain forms of lactose intolerance. Allergy issues might also exist, along with possible vision effects. [For a full list, see the Lilly ICOS patient information sheet, or the Cialis� website Safety page.]

Prospective users might also want to know that: “Cialis does not work if there is no sexual stimulation. You and your partner will need to engage in foreplay, just as you would if you were not taking a medicine for [ED]”

Of course, if the longer list of side effects were given — as seems to be the norm in most drug ads — the audience just might miss that intriguing 4+ hours warning. Side-effect as selling point. I hope law-firm marketers don’t get wind of this notion.

• I can’t leave this subject without pointing out the generic name for Cialis� — tadalafil. ta-da-la-fil. “Ta-da, the son!” Is somebody being cute? Ta-da, indeed.

Finally, golfing fans might be edified by the Eli Lilly and Company Press Release (01-23-04), stating that “The Western Golf Association formally announced today that Lilly ICOS’ recently approved erectile dysfunction drug Cialis� (tadalafil) is the new title sponsor of the “Cialis Western Open” golf tournament through 2006. In addition, Cialis is an official partner of both the PGA TOUR and Champions Tour through 2007. ” And, you will surely feel warm all over know that”

According to Lilly ICOS, the sponsorship represents a timely and unique opportunity to educate men in the United States about a significant health issue — erectile dysfunction — and the role of Cialis as the only oral ED treatment option shown to improve erectile function for up to 36 hours in most men.

“The people who watch and play golf are an important audience to us — specifically men over 40 and their partners,” said Paul Clark, chairman and CEO of ICOS. “The Western Open sponsorship allows us to connect with thousands of golf fans and position Cialis in a meaningful and memorable way.”

At this point in time, there are no plans for priapicEsq to bring up this subject again.

Vol. 28 of the Legal Studies Forum [reproduced online at the U. Texas Tarlton Law Library] is unlikely to generate any income directly. In fact, it’s a great disguise for the lawyer who wants to look busy while rekindling the spark of life. Yet, at $25, ethicalEsq thinks the 700-page anthology of poetry by lawyers is the best library acquisition value a law firm could make this season — and haikuEsq fully agrees.

brilliant disguise

The publishing milestone that we foretold last month has come to pass — Professor James R. Elkins (College of Law, West Virginia University) and the Legal Studies Forum have published “the first effort of a United States legal journal to devote an entire issue to poetry.” The Forum edition, entitled Off the Record: an anthology of poetry by lawyers, 28 Legal Studies Forum (No. 1 & 2, 2004), is not filled with poetry about law, lawyers, and the legal world, but instead contains “poetry by poets educated and trained as lawyers.” Sixty-six currently-active lawyer-poets are represented.

The twenty-page Introduction by Prof. Elkins may look like a law review article, but it’s a strong reminder that there is nothing inconsistent about the lawyer and the poet coming together in one man or woman. It’s also a rousing argument that every school of law must nurture a practice of law that is enfused with “the poet’s sensibilities, awareness, introspection, and care for the things and the particulars of the world”.

Elkins notes:

“The idea of poetry in a legal journal, even an eclectic journal like the Legal Studies Forum, may seem peculiar. For those who find it so, we might note that in poetry – and law – we find the familiar made strange. (emphasis added)

Legal education is a process of “taking the familiar and giving it new names, producing new categories of thought, a new way of valuing, and in doing all this, producing a new system of meaning.” Therefore, ‘Given this steady – if arrhytmic – translation of the familiar to the strange so that it, too, can then be made familiar, we may have found an unsuspetcting relationship to poetry.”

Elkins also contrasts the feelings of two of the best known American lawyer-poets, Wallace Stevens (1879-1955) and Archibald MacLeish (1892–1982). Stevens “seems never to have found it odd that he was both a lawyer for an insurance company and a poet, and that doing both well was anything to be considered exceptional.” In turning down an invitation to be featured in a Harpers Bazaar article about his being a lawyer and poet, Stevens wrote that he did not believe the two were in opposition, saying:

. .

‘I don’t have a separate mind for legal work and another for writing poetry. I do each with my own mind . . .”

[skepticalEsq Aside: The poetic soul in Stevens certainly sets him off from the brand-conscious, ever-marketing lawyer of today — who clearly wouldn’t dream of turning down an article in a major magazine!]

In contrast to Stevens’ ease with the dual lawyer-poet role, MacLeish “never forgot his education and training as a lawyer. And he was never allowed to forget that his lawyer colleagues at Harvard, and one might assume elsewhere, viewed him as an odd duck for giving up the law to be a poet.” Despite this discomfort, MacLeish, in his famous “Apologia” speech (Harvard Law Review, Cambridge, June 1972) stressed:

The business of the law is to make sense of the confusion of what we call human life—to reduce it to order but at the same time to give it possibility, scope, even dignity.

[And, the business of poetry is] “Precisely to make sense of the chaos of our lives. To create the understanding of our lives. To compose an order which the bewildered, angry heart can recognize. To imagine man.”

Similarly, MacLeish rejects lawyer and poet stereotypes, saying that they “fall apart when applied to a single human being. The mask of the poet or mask of the lawyer are poor substitutes for the real human being and his collection of fear, joy, bewilderment and experience.”

Elkins summarizes by pointing out that “We have always had lawyer poets; we know now, with the publication of this anthology of poetry, that we still do.” And, he asks

“Should we actually be surprised to learn that lawyers, by training and craft, attuned to the nuance and power of language, schooled in the the clever rhetorical deployment of language, performers in our legal dramas (great and small), should also serve as our poets? Accustomed as we may be, in this John Grisham era of legal thrillers, to the now common idea of the lawyer-novelist, there is still some mystery, sense of wonderment, and bedevilment at the idea of a person who has the capacity, sensibilities, skills, and talents to be a poet and a lawyer.”

And, Prof. Elkins concludes: “If we think literature matters, . . . then the best education of a lawyer remains an education in skills practiced as an art, an occupational poetics of the real.”

For more on lawyers as poets see Prof. Elkins’ impressive website compilation, Strangers to Us All: Lawyers and Poetry. You can also find poems by six of the lawyers from the anthology at attorney-poet Lillian Kennedy’s website Hearsay: poetry written by lawyers.

• There’s also an interesting discussion of whether the Muse or the Law is a more jealous mistrisss. Carolyn Elefant might be interested in the quote from Ralph Waldo Emerson, that “if a man has a genius for painting, poetry, music, architecture or philosophy, he makes a bad husband and an ill provider.”

•  

  Off the Record has 679 pages of poetry by lawyers, in addition to the 20-page Introduction. The price for the Legal Studies Forum‘s poetry antholgy is $25. Contact Prof. Elkins through the Forum’s subscriptions page.

• Given my haiku-bias (and short attention span), I am already pleased to have discovered Indian Law expert Frank Pommershein, who teaches at the University of South Dakota School of Law, and serves as a justice on several tribal appellate courts. Friedrick Haines of the Colorado Law Department also contributes three haiku to the LSF anthology.

Afterthought (03-15-04): Today, Rory Perry has posted a fine recommendation for Off the Record and daily poetry at his weblog.

update: see our post LSF again features lawyer poets (May 6, 2005), which notes that LSF has “produced a spectacular encore — Legal Studies Forum XXIX:1 (2005) — which includes about 300 pages of poetry by people with law degrees (very little of which is about the law), along with interviews and essays about lawyers and poetry.”

there wouldn’t be silly cases like this.  (“Panel Halts Probe of NY Attorney
Who Disclosed Another Lawyer’s Disciplinary Record,” New York Law Journal, by John Caher, 03-10-04)

  According to the Roanoke Times, “Benu researched the issue and discovered that the Maryland gun law in question was different at the time of his conviction.”   After being briefed, the case was then dismissed against Benu.  Benu’s new lawyer is arguing that attorneys Tony Anderson and Melissa Friedman should have researched the issue upfront and immediately found the error in the prosecution’s case. 

• The Roanoke paper states “Anderson, reached in Abingdon, where he is trying the federal capital murder case of former Pocahontas Mayor Charles Wesley Gilmore, said he had not been served with the lawsuit and cannot comment until he has a chance to see it.”  I bet Gilmore is feeling none too confident in counsel tonight.

  According to the Roanoke Times, “Benu researched the issue and discovered that the Maryland gun law in question was different at the time of his conviction.”   After being briefed, the case was then dismissed against Benu.  Benu’s new lawyer is arguing that attorneys Tony Anderson and Melissa Friedman should have researched the issue upfront and immediately found the error in the prosecution’s case. 

• The Roanoke paper states “Anderson, reached in Abingdon, where he is trying the federal capital murder case of former Pocahontas Mayor Charles Wesley Gilmore, said he had not been served with the lawsuit and cannot comment until he has a chance to see it.”  I bet Gilmore is feeling none too confident in counsel tonight.

Weakly Special:  Evan Schaeffer is now holding Rock’n’Roll week at his Legal Underground weblog.  As he explains:

  To all [we]bloggers studying law:  . . The title of each post this week contains a reference to a rock song; spot the reference, which usually isn’t brilliantly disguised, and I’ll make it my business to publicize your [we]blog on this one (admittedly, something that’s worth more or less what you’ll have to pay for it). Rules here, law students only.

So far, today’s posts are titled Brilliant Disguise and Career Opportunities. 

We here at e&hEsq have a few qualms about all this . . 

• Isn’t it (like really) unfair to open the contest only to law students?
  
• Aren’t law student webloggers already spending far too much time away from their studies?  Why would Mr. Schaeffer want to encourage them to chase down song titles, most of which are from another era?
  
• Speaking of which, Mr. Schaeffer’s choices seem to give Baby Boomer law students a distinct advantage in his contest. [Aside to all baby boomer law students:  Get Out Now, with your sanity and soul intact.  How many mid-life crises do you want in one lifetime?] 
  
• Since, by definition, all members of our learned profession are always “studying” the law (and some even “practicing” it), or should be, shouldn’t all weblawgers qualify for this contest? 

Mr. Schaeffer seems to think he can slip this link-mongering scheme past skepticalEsq with a mere mention and compliment of Your Humble Editor.  Well, it’s not working.  So far.

Weakly Special:  Evan Schaeffer is now holding Rock’n’Roll week at his Legal Underground weblog.  As he explains:

  To all [we]bloggers studying law:  . . The title of each post this week contains a reference to a rock song; spot the reference, which usually isn’t brilliantly disguised, and I’ll make it my business to publicize your [we]blog on this one (admittedly, something that’s worth more or less what you’ll have to pay for it). Rules here, law students only.

So far, today’s posts are titled Brilliant Disguise and Career Opportunities. 

We here at e&hEsq have a few qualms about all this . . 

• Isn’t it (like really) unfair to open the contest only to law students?
  
• Aren’t law student webloggers already spending far too much time away from their studies?  Why would Mr. Schaeffer want to encourage them to chase down song titles, most of which are from another era?
  
• Speaking of which, Mr. Schaeffer’s choices seem to give Baby Boomer law students a distinct advantage in his contest. [Aside to all baby boomer law students:  Get Out Now, with your sanity and soul intact.  How many mid-life crises do you want in one lifetime?] 
  
• Since, by definition, all members of our learned profession are always “studying” the law (and some even “practicing” it), or should be, shouldn’t all weblawgers qualify for this contest? 

Mr. Schaeffer seems to think he can slip this link-mongering scheme past skepticalEsq with a mere mention and compliment of Your Humble Editor.  Well, it’s not working.  So far.

“Branch chairman Anthony Armitage is currently negotiating with law firms to create a central database of precedents for banking, regulatory, property and other work, which will be made available free of charge to C&I members.”

 

“The scheme is currently in the initial stages of development, but should ultimately create a comprehensive database of loan documents, sale contracts, lease agreements, surrender documents and more.”

  Somehow, the London firms are getting over the notion that they might lose some fees by sharing these documents.  When asked why they might do it, Armitage replied: 

“Law firms have traditionally been very protective of their precedents. But the value that a law firm adds is not really in the precedent, but in how it is used and the advice that goes around it.  If a law firm is confident in its skills and specialism, it will still be able to add that value. The response from law firms so far has been positive.’

• 
  
  Thanks to ExcitedUtterances for the great pointer.

In this month’s Washington Lawyer, DC Bar President Shirley Ann Higuchi describes the benefits of seeking therapy for depression or anxiety, and praises the local Lawyer Counseling Program. (from the president, “Lawyer Counseling Program: Proven Results, Problems Resolved,” March 2004)

Caveat: Those experiencing such problems should indeed seek help, but I wonder about the effects of mental health therapy on the ability of lawyers to obtain or keep disability insurance.– especially solos and those in small firms, who do not have group disability policies available.

I have personally seen disability coverage refused to lawyers who have had conventional, weekly outpatient therapy for mild forms of depression or anxiety (particularly, if any kind of medication was taken). The reason given for refusing coverage is the fact that depression is the leading form of lawyer disability claims, or near the top, in all states. Such disability firms even refuse to offer disability coverage containing a specific exclusion for depression. The resulting lack of coverage could become a major source of anxiety on its own.

This kind of mental health blackballing probably happens for other professionals seeking disability coverage. Lawyers can and should, however, take the lead in seeking to find solutions that do not penalize those who have sought or are seeking counseling for psychological or emotional problems.