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special / Competence Issues (Addressing Substance Abuse and Physical/Mental Impairment)

Mindfulness practice can be a life-changer for law students, lawyers and judges

In an earlier article, "Mindfulness: what to do when the need for help arises" (Aug. 4, 2017), I provided an introductory look at "mindfulness." This is the descriptive name for what we are doing when we focus awareness on our thoughts, perceptions, feelings, bodily sensations, and surrounding environment to the exclusion of all else, even if but for the moment. Since that piece was published, it seems the concept of being able to "get out of our environment" has become widely publicized and adopted in many forums.

The enticement of mindfulness practice is being able to relieve everyday pressures, stress, severe obsessive thoughts, depression, personal recrimination, feelings of inadequacy, procrastination, alcohol addiction, substance abuse, and mental healthcare issues, among others. Extensive anecdotal evidence from law students (competing for grades), lawyers seeking to attract and satisfy clients for financial success (and influence courts and juries), and even judges who preside over difficult cases, demonstrate a large representation of each category is drawn to the potential of mindfulness training programs.

This confirms the effective practice of this process provides a successful coping mechanism for the complicated and congested lives we lead today, as we seek to achieve personal growth, professional and financial success, and the ability to function in an ever-changing, complicated world.

How to Discover the Path to Well-Being and Balance in a Complicated Life

This has been examined in depth by Georgia State University College of Law Professor Charity Scott. See "Mindfulness in Law: A Path to Well-Being and Balance for Lawyers and Law Students," Arizona Law Review, Vol. 60:3, 635 (2018). Scott has concluded, in addition to relief from stress, "mindfulness can deepen...self-awareness and...ability to be self-reflective...[and] positively affect many of the emotional and psychological variables of daily life." Mindfulness is highly relevant "to the legal profession and legal education [because] lawyers and law students have high rates of depression, anxiety, and substance abuse."

Poor State of Mental Health and Well-Being of Lawyers and Law Students (and Judges)

Scott cites the 2017 National Task Force on Lawyer Well-Being (Task Force) report as the clarion call for healthy lawyers and law students (and judges), as a necessity for a "sustainable legal profession" and basic lawyer competence required by a "profession dedicated to client service and dependent on public trust." She notes the traditional recommendations for correction of stress-related problems and improvement of one's health (including bar association-sponsored programs) are too time-consuming in the everyday schedules of lawyers, law students, and even judge. So, the practice of mindfulness is a welcome and expedient alternative, effective to accomplish the personal and professional goal of wellness in short amounts of time during a busy work week schedule. While not a substitute for necessary professional counseling, this is something that should be supported by employers and law schools. The Task Force supports mindfulness as a practice "to maintain personal equanimity and foster resilience in an increasingly stressful profession and distracted world."

In the introduction to the report, David R Brink (ABA President 1981-82, who passed away in July 2017 at the age of 97, after tirelessly supporting the work of lawyer assistance programs across the nation, and referred to as "a beacon of hope in the legal profession for those seeking recovery") issued this call to action: "Lawyers, judges and law students are faced with an increasingly competitive and stressful profession. Studies show that substance use, addiction and mental disorders, including depression and thoughts of suicide--often unrecognized--are at shockingly high rates. Consequently, the National Task Force on Lawyer Well-being, under the aegis of CoLAP (the ABA Commission on Lawyer Assistance programs) has been formed to promote nationwide awareness, recognition and treatment. This Task Force deserves the strong support of every lawyer and bar association."

Relevance for Lawyers, Law Students, and the Bench

To Scott, this requires paying attention in the present moment, purposefully and nonjudgmentally, by stopping in a stressful or emotional situation: Take a deep breath; observe what is happening to one's body, feelings, and thoughts; and proceed only when the awareness has been gained to understand what is occurring in the mind. This will enable us to "become less automatically and mindlessly reactive to people and events, and instead to be more thoughtfully and appropriately responsive to them...because [w]e cannot control other people--we can control only our own attitudes, behaviors, and responses."

Watching the recent Senate hearing proceedings concerning the nomination of Judge Brett Kavanaugh to a seat on the Supreme Court, and his performance before the Senate's Judiciary Committee in heated response to questions from the minority members, can anyone doubt the importance of awareness? Scott refers to this as the "Socratic principle" to "know thyself...perhaps the most important lawyering skill that someone can develop for effectively navigating a professional life that is increasingly characterized by rapid change, continual uncertainty, and clashing ethical values."

The Practice of Mindfulness is Beneficial

Irrespective of the method or approach one follows (Scott sets forth four), the lynchpin of mindfulness practice is functional meditation. This enables us to regulate our own attention and emotions, ignore all distractions, and reduce the level of depression, stress and temporary anxiety. Concurrently, this will enable one to maintain open-mindedness and avoid being judgmental, encouraging rational decision-making and reduction of "various cognitive distortions, including implicit bias."

In addition, the effective practice of mindfulness can foster empathy and compassion, improving interpersonal and professional relationships, and improve our ability to be honest and self-aware while at the same time acknowledging we are not the central character in our stories. Accompanying this is the ability for establishment of a strong self-identity, self-acceptance, avoidance of self-blame, and increased acceptance of others including their eccentricities.

Successful practice of mindful meditation will increase our self-awareness and ability to remain balanced, while promoting highly prized professional qualities. Added to this are the studies showing practice of mindfulness "can make alterations in the structure and function of the brain itself."

Interpretation of Especially Notable Topics of the Task Force

  • Recommendations for all Stakeholders: Acknowledge the problems, and take responsibility for them; leaders need to demonstrate a personal commitment to well-being; without stigmatization, facilitate and encourage help-seeking behaviors; encourage relationships with lawyers and well-being experts; establish high-quality educational programs and provide materials about lawyer well-being; arrange guidance and support the transition of older lawyers; support avoidance of alcohol at social events; establish programs to monitor and support recovery from substance use disorders; and advocate dialogue about suicide prevention.
  • Recommendations for Judges: Make it clear that well-being on the bench is a priority; establish policies for impaired judges; work to reduce any stigma of mental health and substance use disorders; establish well-being programs for judges and staff.
  • Recommendations for Regulators: Adopt regulatory objectives that prioritize lawyer well-being; modify the rules of professional conduct to endorse well-being as part of a lawyer's duty of competence; expand continuing education requirements to include these topics; require law schools to develop and offer well-being education for students as an accreditation requirement.
  • Recommendations for Legal Employers: Establish organizational infrastructure to promote well-being.
  • Recommendations for Law Schools: Create best practices for detecting and assisting students experiencing psychological distress; assess law school practices and offer faculty education on promoting well-being in the classroom; empower students to help fellow students in need; include well-being topics in courses on professional conduct; provide education opportunities on well-being related topics; discourage alcohol-centered social events.
  • Recommendations for Bar Associations: Encourage education on well-being topics in association with lawyer assistance programs.

Defining Lawyer Well-Being (A continuous process in which lawyers strive for thriving in each dimension of their lives):

  • "Occupational": Cultivating personal satisfaction, growth, and enrichment in work; financial stability.
  • "Intellectual": Engaging in continuous learning and the pursuit of creative or intellectually challenging activities that foster ongoing development; monitoring cognitive wellness.
  • "Emotional": Recognizing the importance of emotions. Developing the ability to identify and manage our own emotions to support mental health, achieve goals, and inform decision-making. Seeking help for mental health when needed.
  • "Spiritual": Developing a sense of meaningfulness and purpose in all aspects of life.
  • "Social": Developing a sense of connection, belonging, seeking help for physical health when needed. and a well-developed support network while also contributing to our groups and communities.
  • "Physical": Striving for regular physical activity, proper diet and nutrition, enough sleep, and recovery; minimizing the use of addictive substances. Seeking help for physical health when needed."

How the Process Has Spread and Proliferated

Having been admitted to the California Bar in 1961, I have seen an amazing development in law school and state bar professional conduct efforts over the last 57 years, in ways no one could have anticipated in the year of my bar admission. At last count, these 17 states have task forces and commissions dealing with lawyer well-being: Utah, Colorado, Kansas, New Mexico, Texas, Nebraska, Minnesota, Wisconsin, Illinois, Indiana, West Virginia, Virginia, Georgia, Florida, Vermont, Massachusetts, and Connecticut. As advanced as California is concerning regulation of professional conduct, it is not among these states.

Many law schools have adopted well-being courses and programs. One example in California is the Mindfulness, Stress Management, Peak Performance Program at Southwestern Law School, and its Mindfulness in Law Society. The special edition of the school law review (Mindfulness and Well-Being in Law Schools and the Legal Profession), is planned for Fall 2018 - Spring 2019.
In addition, the American Bar Association has a program in Wellness, Mindfulness, and Work-life Balance; and has released a well-being toolkit to make it easier for lawyers and legal employers to find resources to support lawyer well-being. The critical effort is designed to support a healthy work environment for lawyer wellness. The theory is this will make it easier to provide opportunities for good choices that will "allow them to thrive and be their best for clients, colleagues, and work organizations." This is but one of ABA efforts to confront the issue of lawyer well-being.

According to studies referred to by the ABA, "more than a third of all practicing lawyers and law students have problems with alcohol and substance abuse, depression, anxiety and other emotional disorders." The Task Force took the lead making recommendations, among other things, suggesting the profession address the problems identified in the report, including "lawyers, judges, and others in the profession try practicing mindfulness." California lawyer Anne Brafford, the primary preparer of the Task Force Report, also was the chief drafter of the well-being toolkit. She can be reached at abrafford@aspire.legal.

How to Proceed
(1) Select a good and reputable program with qualified trainers;
(2) Devote the necessary time and be comfortable in the process, with eyes closed, focusing on your breathing;
(3) Acquire the discipline to religiously follow the precepts of the process (seek to be rather than do);
(4) Accept without reacting to whatever enters the mind; and
(5) Support law schools and employers (including the courts) who initiate, maintain, and continue to advocate mindfulness practice as part of an established program following conclusion of the initial training.

Attorney and mindfulness instructor Jeena Cho advocates we "set a goal that can be accomplished in just six minutes per day. The reason for this is twofold. One, lawyers often measure their time in six-minute increments, so it's familiar. Second, it's easily achievable." Avoid "negative self-talk" so we don't "feel like a failure"; just try again and don't worry about the past. Always keep the goal of "multifaceted well-being." This is the "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 greater purpose in life, physical health and social connections with others." An important negative consideration here is spending "an inordinate amount of time ruminating, anticipating and planning for the worst-case scenario. Mindfulness is useful for recognizing when our thoughts are helpful or destructive. This includes when we're engaged in problem-solving or simply replaying thought loops."

Cho emphasizes the reason why lawyers must care for their own well-being is because it is the cornerstone of being a competent lawyer. Rule 1.1 of the ABA Model Rules of Professional Conduct states lawyers owe a duty of competence to their clients. Competent representation is defined as requiring "the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

The new California Rules of Professional Conduct, Rule 1.1 (a) and (b), address a lawyer's responsibility for his or her own professional competence. Rule 1.1(a) provides that a lawyer "shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence"; and (b) for "purposes of this rule, 'competence' in any legal service shall mean to apply the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably necessary for the performance of such service." (Emphasis added).

Cho says studies show "mindfulness can reduce rumination, stress, depression and anxiety. At their core, all meditations share the feature of bringing one's attention to the object of focus--commonly the breath, sounds, other physical sensations or repetition of a mantra." She worked with participants in a program who "spent, on average, 57.98 minutes per week meditating--just eight minutes per day-- [demonstrating that] reducing stress and anxiety by 30 percent with just eight minutes of regular meditation practice is an investment of time worth making... an achievable resolution for lawyer well-being."

Conclusion

Relaxing as an antidote to anxiety takes practice in reprogramming the brain. Always keep in mind self-care is how we manage stress and anxiety. While not generally discussed, lawyer loneliness does exist and has been referred to as the "No. 1 public health issue" of the legal profession. Also, it is important to understand and accept that suffering is simply a "human consequence" of being a lawyer. Consequently, self-care is critical and can be accomplished by changing our minds, eliminating excessive worry by dealing with it head-on. Instead of capitulating to our "inner critic" we need to avoid impossible demands. Finally, if we are determined to always fit relaxation into our busy schedules and are comfortable in the knowledge mindfulness meditation can be an achievable goal for lawyer well-being, we will be on the road to achieving personal satisfaction and professional competence.

#350

Aditi Mukherji

Daily Journal Staff Writer
aditi_mukherji@dailyjournal.com

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