Practicing law is an “A- minus” stress profession. It’s not stressful like being a correctional officer or a soldier or Marine, or an air traffic controller or a bomb squad agent. But within the second tier of professional stress, it can be severe. Our profession has a higher than average rate of alcoholism, drug abuse and other dysfunctionalities according to some reports.
Within my extended circle, I am aware of three attorneys from my graduating class of about 160 who have left the profession permanently, two by disbarment and one by indefinite suspension; of these three, two were almost certainly better students than I was and the third one might have been. I know of one attorney a year after me from UM Law who lost her license when she got buried in a volume lemon law practice situation without sufficient backup. My mid-level supervisor of many years at a medium-sized suburban firm consented to disbarment and pled guilty to federal offenses. There may be many more who have lost their licenses than these listed here; these are only the ones I can think of. If I take it beyond one degree of separation, it’s probably a lot of attorneys, including several opposing counsel whom I at the time respected, one prosecutor (rare but it happens), attorneys who were leaders in the Bar in many ways over the last 18 years.
Below hard-core discipline lie the attorneys who just sort of “wig out”. Maybe they get disciplined with reprimands, or get sued or sanctioned. Maybe they get fired for whatever reasons of varying levels or merit or non-merit. They hit the end of their rope and become dysfunctional personally if not professionally. Maybe they start falling to Anheuser’s disease, or they engage in hard-core improprieties or vices of other sorts. You don’t have to think very hard to imagine this scenario; you can recall one such example and perhaps many if you think about it among your professional acquaintances.
Lawyer Assistance Programs operate at the county level in many counties in Maryland and there is larger program at the state level through the MSBA. Much of their work is oriented towards alcohol issues. While this is certainly meritorious, there are many issues which working attorneys can encounter other than C2H5OH. Ideally, it would be better to address some issues before alcohol becomes an issue for attorneys (or non-attorneys), and to address issues that don’t involve alcohol at all. I myself consulted Lawyer Assistance with the MSBA eleven years ago briefly with some difficult personal issues, and am glad I did. (To my narcissistic friends and acquaintances who tell me that lawyers shouldn’t admit ever to having difficulties, please lose my email address as your “content” isn’t useful to me.)
Economic pressures make it a lot harder to succeed in the profession than in previous generations. A weak economy helps (almost) no one, but it’s particularly hard on private, small-firm attorneys. Many lawyers graduate with massive debt today, and in the absence of a job may be tempted to cut corners on ethics to get things done, starting with BS online marketing about being “the best” when they are merely at most “the eager.” SEO gimmickry and how quickly your mail marketing machine gets the letters out matter somewhat more than, say, scholarship in a given area of the law, trial practice experience, creativity in pleading and legal theories, etc., in terms of developing a practice. For criminal defense lawyers in Maryland, it’s tough competing with a Public Defender that has essentially abandoned the pretense of checking financial qualifications for its clients and no longer makes many, if any, referrals to local “low fee/gray panel” attorneys. So attorneys are under pressures which they had not previously faced in the same way.
A few programs that the Bar (if not private voluntary Bar Associations) might, in an enlightened age, consider:
1) Encouraging those who can and want to to take a sabbatical year from the practice of law. Our stress levels are higher than those of tenured professors and they take paid sabbaticals routinely. Attorneys who want to get away from the practice for a year and do something different, and who have the means to do so, should get praise, not “what are you doing that for?” from the organized Bar. Whether it’s to pursue a non-profit venture or project, develop a business related to the practice, give a year (or six months) to their church or missionary organization or spend a year teaching scuba diving in Aruba, those who need to step out for a year and have the means should be praised for doing so. We have more than enough lawyers, such that law school applications are down to a 30-year low despite college graduations being higher in gross volume than ever.
2) Just as military personnel are increasingly coming to face the reality of PTSD, lawyers should acknowledge that the practice inflicts a (very sub-PTSD) toll on many people and deal with that toll as an overall part of professional management. Malpractice carriers ask annually whether there’s a double-entry calendar system, whether the law firm sues clients for back bills and whether a solo attorney has a back-up plan for illness or major injury; they should also ask what stress-management best practices the law firm has considered (if only for statistical purposes.) Law schools should spend less time teaching the theoretical hobbies of tenured professors and a little more time studying how lawyers bomb out of the profession, at least through on-campus presenters if not within the formal curriculum. Professional responsibility shouldn’t be a 3-credit course on how to skirt the Model Rules, but a comprehensive course comparable to the investments in the better legal clinical programs. Lawyers need this more than they need a course on Article 3 of the UCC.
3) Disciplinary authorities should give “credit” or at least some consideration in some cases to attorneys who screw up badly but share their screw-ups with law schools and students or new admittees as cautionary tales. When lawyers go down for the count on disciplinary lapses, their screw-ups mark them essentially as “non-persons”; their names are stricken for a period from the rolls of the licensees, and they sort of “vanish.” There’s merit to making them “vanish” but perhaps for some it would be useful for them to address professional responsibility courses in the same way that sometimes drunk drivers present at MADD Victim Impact panels. When I joined the DC Bar in 2005 after 11 years in the Bar of Maryland, I attended DC’s mandatory professionalism course. Bar Counsel read aloud some names of attorneys who had received major discipline (long suspensions or worse) and their major sins, but it might have driven the point home more to hear from a few of the attorneys themselves who had made major lapses but had hope of rehabilitation, or who had been readmitted after a long period of professional exile. Certainly not every disciplined attorney is appropriate for this suggestion.
4) Bar Counsel’s essentially prosecutorial role is to a large extent appropriate, particularly when investigating deliberate fraud and reckless injury to clients. On the other hand, there may be an “bully pulpit” advisory role for Bar Counsel to consider in suggesting or advocating to some attorneys that they take their broad talents outside of the practice of law. Some of the “flawging” nonsense comes from the purely commercial tone of online marketing and its sharp divergence from the professional standards and fiduciary duties of law practice. You cannot sell legal services the way that you sell cotton candy or hair gel, but it is probably fine to sell cotton candy or hair gel the way that the worst of the internet buncombe would market legal services. It’s OK to sell real estate or gumball machines for a living and not to be an attorney; many highly successful people live great lives and do not practice law, including former attorneys. It’s not dishonorable for Bar Counsel (or anyone) to state this or for any attorney to consider leaving the profession; it’s not Tony Soprano’s garbage hauling business, you really can leave if you want to and perhaps some whose commercial instincts and creativity collide with attorney professional ethics need respectful career change encouragement more than just moral or professional condemnation.
