f/k/a . . . the archives

December 17, 2007

now that’s depressing

Filed under: Haiku or Senryu,lawyer news or ethics,q.s. quickies — David Giacalone @ 1:06 pm

The Wall Street Journal and the blawgiverse have once again discovered the issue of Lawyer Depression. It started with Sue Shellenbarger’s Work & Family column for WSJ, on Dec. 13, 2007, titled “Even Lawyers Get the Blues: Opening Up About Depression.” She says that “More attorneys . . . are breaking taboos against talking about mental-health problems,” and bar associations, firms and law schools are learning lessons about “allaying isolation, easing overload and making career choices with care.”

Peter Lattman responded to Sue’s column in his WSJ Law Blog, by asking (again) “Why are so many lawyers so depressed?” (Dec. 13, 2007). He notes “some studies show nearly 20% of lawyers battle depression . . . because of the adversarial nature of the work and the non-stop deadlines. Others, including the ABA, criticize the billable-hours system as ‘corrosive’.” As is her wont, Carolyn Elefant summarizes coverage, and added an interesting twist question, in the post “Is Blogging an Antidote to Lawyer Depression?.” See also “Lawyer Depression Comes Out of the Closet” (ABA Journal News, Dec 13, 2007); and Jim Calloway’s discussion at his Law Practice Tips weblog.

This is an important topic that deserves continuing coverage (and action). Our post in March 2006, “do lawyers choose to be unhappy?,” is sharply opinionated about possible causes of lawyer depression (and the tough choices that individuals must make about their values and sustaining them); it has useful links. Four years ago, we wrote about Professor Patrick Schiltz’s “Sermon” on lawyer happiness and mental health, and still believe it should be required reading for anyone who cares about lawyers. Read and consider: “On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession,” 52 Vand. L. Rev. 871 (81 pp pdf.; condensed version here). Here are some quick thoughts about the current wave of online discussion:

  • A small but important point: It’s great that more lawyers are willing to discuss their depression, get counseling, and find group support. One thing the profession should do for them, however, is to help make sure that seeking professional help doesn’t end up disqualifying the lawyer when he or she seeks disability insurance. See our post “Lawyer Therapy Can Affect Disability Insurance ” (March 8, 2004), which notes that many insurers deny coverage to a lawyer who has (even in the distant past) been on antidepressants and seen a therapist — because depression is at the top of the list of reasons why lawyers seek disability.
  • More important: It seems that too many of the proffered “causes” for lawyer depression seek to blame the system, with the individual lawyer as the victim, rather than focusing on the responsibility of each lawyer to understand his or her own values and take the steps necessary to find, shape, create a career position that jibes with those values. For example, you can’t complain about a crushing billable-hours quota — which is meant to generate a certain amount of fees from your work — if you are not willing to work for less income (elsewhere, if necessary). Far too many lawyers entered into the profession because they wanted wealth and status. The fact that so many realize how hollow those goals are, and how seldom they lead to personal satisfaction, is a good thing. I’ve come to believe that depression [Mr. D] is our psyche telling us “you’re not living right. Know your priorities and act on them.”
  • It’s a nice coincidence that this depression story arose again the same week that Legal Times ran the article “The Man That Got Away: Judges dreamed of having Barack Obama as their clerk. Why did he turn them all down?” (by Tony Mauro, December 10, 2007). It says a lot about the strength of Obama’s values that he knew what he wanted to accomplish with his law degree and walked away from prestigious clerkships, when he graduated from Harvard Law School, to go home to work on civil rights and poverty issues. It says even more about the legal profession that we are so shocked that any graduate would “give up” that prestige and the train to glory, power and riches that it promises.
  • Too many young people go into law without doing the hard self-assessment and reality-testing (about what lawyers actually do) that such an important decision deserves and requires. (For example, law school was for me a “default position” when I didn’t know what I wanted from life and wanted to keep my options open.) It is very good, therefore, that schools are putting more emphasis on “career decisions.” But, as our Prof. Yabut explains and proclaims in “1L of a decision” and the road to “L” is paved with inattention (Sept. 4, 2005), the work needs to be done before entering law school, and then throughout the academic years — and continued as you and your career evolve or devolve.

ooh Cognitive dissonance — “a psychological term describing the uncomfortable tension that may result from having two conflicting thoughts at the same time, or from engaging in behavior that conflicts with one’s beliefs” — can often be the cause of depression (see, e.g., “Cognitive Dissonance, Halo Effects, and the Self-Esteem Trap” by Daniel S. Levine, discussing the problem of ” (a) high self-esteem combined with (b) frustration about inability to get what one wants from others.”) Because so many lawyers, by nature and training, live in their heads and readily see and understand contradictions and inconsistencies, I believe that Cognitive Dissonance is at the root of much lawyer depression. That’s because we as a profession constantly profess to principles — e.g., putting the client’s interests first, seeking justice, demanding the highest ethical standards — that are demonstrably violated or ignored in daily practice. For example:

  1. Jim Calloway said this week that “We search for the truth in adversarial courtroom settings.” But, many lawyers instead see their role in the adversarial process (as required by our ethical duties) as tailoring the presentation of the “truth” so that their client is most likely to win, and not so that some objective truth or justice is accomplished. They let the judge figure it out (or hope she doesn’t.)
  2. Despite the PR about highest ethical standards, isn’t it more accurate to say that our codes of professional responsibility in many ways represent the lowest-common-denominator standards, and are then poorly enforced? (see our “sustained objection” to the inadequate discipline system)

WolfDudeN Speaking of the potential for Lawyer Cognitive Disonance, here are a couple examples from current stories in the news:

California Lawyers are Still Fighting Malpractice Insurance Disclosure: Bar groups love to tell you that they are toiling hard to improve the profession for the sake of our clients and the public. [we think they act more like turf-protecting, rent-extracting guilds] For more proof that lawyers in gangs work for for their own financial interest, see “Calif. Bar Panel Amends Proposal on Malpractice Insurance: One member says whole idea should be canned for sake of solos and small-firm lawyers” (The Recorder/Law.com, Dec. 17, 2007); and “Calif. Bar Board Members Butt Heads on Malpractice Insurance Disclosure” (The Recorder, Nov. 13, 2007). See our California coverage and discussion here, ; HALT’s submission on behalf of consumers; and also our general argument on behalf of malpractice disclosure.

. noloShark It’s estimated that one-third of all lawyers carry no malpractice insurance. The unified California Bar proposed last year that — since clients in general believe lawyers have such insurance and consider it important, the profession likes to tout that we do, and (heck) we are supposed to be fiduciaries — California lawyers should let clients know in writing when they do not have malpractice coverage. They quickly ran into a firestorm of opposition — led by the very bar groups that love to call themselves “consumer” and “justice” lawyers — because (gosh) lawyers without malpractice insurance might have lower self-esteem. (see our turn offs post) We’re not psychotherapists here at f/k/a, but we bet that this behavior might indeed cause a bit of Cognitive Dissonance among the more thoughtful and sensitive members of the bar.

Meanwhile, in Florida, the Lawyer Dignity Capital of the Nation, Sean Conway is being disciplined for negative remarks he made about a judge in comments at a weblog. (Howard Bashman first picked up this story, “Lawyer may lose license for blog entry on Broward judge,” Sun-Sentinel, Dec. 13, 2007) At LegalBlogWatch (Dec. 14, 2007), Carolyn Elefant says: “Yes, we all recognize that the lawyer could have criticized the judge in a more tactful manner. But does he deserve a formal reprimand or suspension of his license? Hardly.” And see, “Lawyer’s License at Risk for Blog Post” (Dec. 14, 2007); Lattman at the WSJ Law Blog; and Greenfield at Simple Justice. The Sun-Sentinel reported:

In the Halloween 2006 posting on a blog, Conway denounced Alemán for what he said was an “ugly, condescending attitude” and questioned her mental stability after, he says, she unlawfully forced attorneys to choose between unreasonable trial dates or waiving their clients’ rights to a speedy trial.

“She is clearly unfit for her position and knows not what it means to be a neutral arbiter,” Conway wrote in his commentary.

The Florida Bar signed off on its finding that Sean Conway may have violated five bar rules, including impugning the judge’s qualifications or integrity.

Fred Haddad, Conway’s lawyer, sums it up well:

“There’s absolutely no reason that politicians, and that’s all judges are here in Broward County, aren’t open to criticism.” . . . “We’ve got a [Florida Bar] grievance committee that can’t even conceptualize the First Amendment.

Conway stands by his words, saying: “She was giving people one week to prepare for trial and as soon as the blog exposed it through powerful words she stopped it.” He concluded: “And that’s why I stand by what I did. Sometimes the language the bar approves of doesn’t get the job done.”

In September, we agreed with the federal district judge Arthur Tarnow, who threw out similar charges against against the far less likable Jeffrey Feiger, in Michigan. Vague disciplinary rules that go after lawyer speech outside the courtroom or pleadings, because they are deemed to be “undignified or discourteous conduct” toward judges, are simply too vague and overly broad to be allowed under the First Amendment. If, however naively, we believed that the lawyer disciplinary process is there to help protect clients and improve the justice system, we might surely find ourselves awash in yet more cognitive dissonance.

lipstick on his
coffee mug –
steam rising

[orig. haiga here]

..

.

Need a nonprescription antidote to depression, or holiday season blues? Jim Calloway’s tip last week –”be alert for your own mood changes and to take care of yourself this holiday season” — points the way for us: check and (and maybe even print out) our new brochure Holiday Haiku from Schenectady, which has two dozen haiku and senryu by Yu Chang, David Giacalone & Hilary Tann, from Schenectady, NY, USA . We’re going to do just that from our desk along the Mohawk River, in the Schenectady Stockade District (and maybe even get those @%&*!! Christmas cards finally written, before this time-consuming weblog creates even more dissonance in my life.)


red envelopes
the sound
of children’s laughter

three generations
peering down a gopher hole
winter solstice

Christmas snow
my father’s footsteps
bigger than mine

  ……………………… by Yu Chang  

Holiday Haiku from Schenectady. . . click to print the free brochure 

 

 

 

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