Getting Through Rough Days: Changing our Culture and Building a Community of Hope

The Bencher—March/April 2020

By Andrew M. Hicks, Esquire

Being an attorney is not easy. There are a lot of rough days. Rough days mean advocating for clients in difficult situations. Rough days mean making decisions that permanently affect another person’s or business’s future. Rough days mean remembering there is a business side of law that needs managed.

Rough days mean stress. For me, it means I am stuck at my desk all day, getting yelled at by my Fitbit and barely walking 3,000 steps. My preferred method for dealing with a rough day is to bottle up my emotions and give no concern to my personal well-being. But there are consequences to my disregard.

Prior to law school, I was a Division II athlete. But after practicing law for seven years, I gained about 70 pounds. I refocused and lost all the extra weight and ran a marathon. Then, I gained it all back and more over the past 10 years. I have switched to a standing desk and have been working over the past few months to take the weight off again. I am slowly heading that way, but at any moment I know that a particularly emotionally difficult case can swing the pendulum the other way.

Attorneys having a rough day is not a new concept. My wife’s grandfather was a loving and quiet man. He was an attorney most of his life, having served as a prosecutor and general practitioner in a small Indiana town his entire legal career. After he retired, he was so respected at his craft that his secretary came into the office one day a week, especially during tax season, so he could help those clients that did not accept the fact that he retired. In his mid-80s he was sharp as a tack and answered complicated tax law questions thanks to a lifetime of helping others. Nevertheless, he was his generation’s version of a problem drinker. Beginning in the evening he would drink scotch. It never interfered with his work, and I never saw him drink scotch during the day.

One time as I was talking with his ex-wife (his second wife), she mentioned that one of the reasons she felt their marriage failed was the silence. He, like most of us bound by confidentiality rules and attorney-client privilege and not wanting to bring our work home, did not talk about the issues on his mind. Instead, he was silent. When I came into the picture, well after the habit gained hold, I was unable to do anything about it. Not that I knew what to do; I was younger with no knowledge or tools.

The statistics show that he and I are in good company. The American Bar Association (ABA) and the Hazelden Betty Ford Foundation surveyed almost 13,000 attorneys across the country and published a study in 2016 that showed that we as a profession are officially a mess. We are such a mess that the ABA has a national task force devoted to our well-being. We struggle with problematic alcohol use, depression, and anxiety at significantly higher rates than the general population. On the bright side, it shows that we care about our clients and work product. Our oaths mean something. We work hard and are productive. We take our jobs seriously. On the down side, we are killing ourselves. As a profession, we must find better ways to cope. We should not have to wait for the second or third marriage to get it right. We should not have to make a choice between missing a child’s bedtime or his or her first soccer game for the sake of squeezing out a few more billable hours in a case that is likely to settle anyway.

Reading between the lines of many malpractice cases, you can see the consequences for failing to seek a healthy work-life balance. While there are no ethical rules governing whether or not we exercise daily, meditate, pray, take a moment to collect our thoughts, or just remember that we have lives outside of work, we are expected to provide competent representation to our clients (Ind. Rules of Prof’l Conduct R. 1.1) and exercise reasonable diligence and promptness in what we do for our clients (Ind. Rules of Prof’l Conduct R. 1.3). Indiana, like most states, requires attorneys, as officers of the court, to act “at all times in a manner consistent with the trust and confidence reposed in him or her by the Indiana Supreme Court and in a manner consistent with the duties and responsibilities of an officer or judge of the courts of this State.” Ind. Admission and Discipline of Attys R. 23, § 1.1(a). Meeting this demand requires some regulation of behavior in public.

Programs assisting attorneys in dealing with substance abuse are well-established. In every state and territory there are programs that assist attorneys in dealing with substance abuse and mental health issues.* Most of these programs have been around awhile. For instance, in Indiana, my primary state of practice, our Judges & Attorneys Assistance Program (JLAP) was founded in October 1997. It has been successful. In the 2017–2018 term, JLAP completed 83 presentations to over 6,500 attendees and answered 281 phone calls requesting assistance. (If you are in a free fall and have issues with your state’s JLAP program, call ours.)

While our court systems and bar associations are doing a better job at getting help to those who have already reached a breaking point, it seems like we are only starting to turn our attention to stopping the problems before they start. Programs such as JLAP are not resources an attorney is going to seek out with initial threats to well-being. Our Indiana State Bar Association (ISBA), in cooperation with the judiciary and JLAP, has spent significant time and resources addressing the attacks to well-being on the front end of the problem. The ISBA has events, mixers, and activities designed to address work-life balance and overall mental health. A proposal was brought forth at an annual meeting about adding required continuing legal education (CLE) on topics related to well-being. In Indiana, we now have CLE on work-life balance and attorney well-being that meet the guidelines for ethics credits, are taught by experts, and supported by our judiciary.

This top-down approach needs to continue, but we need to also recognize that it will cause additional stress for some. To truly address issues relating to mental health and well-being, we must change our culture. That starts from the bottom up.

I would like to encourage you to be a part of a bottom-up, grassroots approach to fill in the gaps. One way we can help one another is building community. With e-filing and a connected world, our attorneys’ lounges are almost always empty. We email more than we talk on the phone. We seldom see attorneys outside of our firm in non-adversarial situations. The isolation and additional stress caused by not knowing and trusting the attorney on the other side of the table detracts from our well-being. (It also makes the practice of law more difficult. Some of my best results for clients occur when I know and trust opposing counsel. It allows us to cut through the games and focus on the matter at hand.)

In Elkhart County, Indiana, we are trying to address the community aspect of work-life balance at the local bar association level. It has not been out of a pre-planned program as much as it has been a desire to want to improve our lives and those of our friends and co-professionals. Years ago, we moved our monthly bar meetings over the lunch hour, providing CLE and lunch. It is an inexpensive way to collect CLE, socialize, and eat, which are things we all need to do.

In 2012, we started an annual bus trip that includes one hour of CLE to start the day, and we have an annual softball game between us and a “frenemy” local bar association. These activities have helped build our community and connect us. When we have a rough day, these events are items on our calendar that we look forward to. They have helped us build relationships that help us regulate our own well-being.

As a firm, we are small enough that we try to watch out for one another. There are things we could probably do better, but we do try to have each other’s backs. We recently moved to a new location and had a shower room installed, which allows us to fit in a bike ride or workout during the workday. I switched to a standing desk to break up the monotony of sitting all day.

If we are going to change the statistics, we need to change our culture. We can help our well-being if we help others improve theirs. If you see another attorney in a freefall, get him or her help. Indiana, like most states, makes it confidential for attorneys reporting other attorneys to JLAP and for attorneys in need reaching out for help on their own. For instance, Rule 8.3(d) states “the relationship between lawyers or judges acting on behalf of a judges or lawyers assistance program approved by the Supreme Court, and lawyers or judges who have agreed to seek assistance from and participate in any such programs, shall be considered one of attorney and client, with its attendant duty of confidentiality and privilege from disclosure.” Ind. Rules of Prof’l Conduct R. 8.3(d).

But I encourage you to not wait until a fellow attorney is in a freefall. Micro touches make a big difference. I would like to see more of us sitting with someone new at the next Inn of Court meeting and finding out what that person likes to do in his or her free time. Or, pat a friend on the back or congratulate an opposing attorney on a well-written brief. The little things make our lives a little better. There are a lot of things we cannot change about our profession. Our profession is a stressful one. But if we work to change our culture and get help for those who need it, maybe we can start meaningfully changing the statistics. u

Andrew M. Hicks, Esquire, is a partner at Warrick & Boyn, LLP, a husband, and a father of four, in Elkhart, Indiana, where he strives every day to be better than he was the day before. He is a member of the Robert A Grant American Inn of Court.

© 2020 Andrew M. Hicks, Esq. This article was originally published in the March/April 2020 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the written consent of the American Inns of Court.