Disconnecting the Passion and the Prose: Secondary Trauma in Pro Bono Work

The Bencher—May/June 2022

By Amelia Clegg, Esquire

“Only connect the passion and the prose and both will be exalted, and human love will be seen at its height.” —E.M. Forster, Howards End

For the majority of attorneys, E. M. Forster’s words encapsulate the reason we undertake pro bono work. We become storytellers, confidantes, and trusted advisers, who offset our guilt at the time we spend away from our loved ones or the amount of money we earn against the opportunity to work for the public good. This is seldom more fulfilling than when we undertake pro bono work. Rather than dropping a few bills into the collection box or attending a sparkling gala in aid of a worthy cause, we choose to devote our most valuable resource, our time, to people who cannot afford it.

However, the cost of caring has seen soaring inflation rates, as pro bono litigators frequently shoulder heavy emotional burdens due to the distressing nature of their cases for which they receive neither the support nor the training that would alleviate the emotional pressures of such work. To ensure that attorneys who work predominantly outside the public interest law sphere continue to donate their time and expertise to those most in need, lawyers must both acknowledge the risks of experiencing secondary trauma and arm themselves by facilitating more training, support, and supervision for pro bono work. This is particularly pressing given the isolation attorneys are currently experiencing as the world continues to battle the COVID-19 pandemic.

Secondary Trauma

Secondary traumatic stress, or compassion fatigue, is a condition that mimics post-traumatic stress disorder, according to the American Bar Association (ABA). It is caused by indirect exposure to the trauma of another person, usually through working with that person. The cost of caring can be defined as “[t]he emotional and physical fatigue experienced by professionals due to their chronic use of empathy in helping others in distress,” according to an American Psychological Association (APA) journal article on the topic. This can, and should, be distinguished from another problem that plagues lawyers: “burnout.”

“Professional burnout” describes a specific phenomenon in which a professional’s personal experiences, combined with the negative cumulative effects of providing services to clients over a particular time, as well as organizational dynamics of the advocate’s employment environment, result in “emotional exhaustion, depersonalization, and reduced sense of personal accomplishment,” according to an article in the April 2020 AILA Law Journal.

This will not be news to professionals who work with society’s most vulnerable people as part of their regular work: first responders, physicians, and mental health specialists, to name but a few. However, other professions outside the medical field have also begun to identify the costs that working in emotionally taxing situations can have on their own mental health and professional performance. For example, the National Education Association has identified “secondary traumatic stress” as a professional risk for teachers.

Studies show that lawyers who work in fields with clients who experience trauma are likely to experience at least some negative impact on their mental health. For example, a 2011 study of the Wisconsin State Public Defender’s Office found that 34% of respondents met the criteria for secondary trauma and 75% met the criteria for functional impairment (which includes disruption in one’s personal or family life). A more recent Canadian study found that “[t]he odds of expressing symptoms congruent with a probable PTSD diagnosis is 2.63 [times] more likely among lawyers classified as highly exposed compared to lawyers who are not exposed to potentially traumatic material in their professional duties, reflecting more than double the level of risk.” There is a litany of research in the United States that establishes that lawyers are particularly vulnerable to suffering from mental health problems that reduce their ability to work effectively. The same results have been found in Australia and the United Kingdom.

These pressures have only become more acute during the pandemic, with increases in requests for legal assistance to fight evictions and debt collections, among other areas. Furthermore, the normal working pressures of managing billable work alongside emotionally taxing pro bono work has been compounded by the fact that the majority of attorneys have been physically cut off from their colleagues and peers. The Centers for Disease Control and Prevention found that three times as many people with professional/graduate degrees admitted to having adverse mental health conditions in 2020 compared to 2019. Where before, attorneys could seek support from colleagues or advice from mentors, or simply relax with each other after work before going home, they are now cut off from those social splints.

Prevention Is the Best Cure

There is an abundance of well-being articles and advice now available for lawyers. This is a very welcome development but does not necessarily address the root of the problem with respect to secondary trauma experienced through pro bono work. As stated above, secondary trauma is not a synonym for the usual burnout experienced by lawyers (although this must not be dismissed or trivialized). Secondary trauma is a specific phenomenon linked to exposure to traumatic events. However, there are some secondary trauma-specific policies that firms may wish to consider implementing to support those attorneys who choose to undertake pro bono work, which is inherently more distressing.

Research suggests that the adoption of trauma-informed policies involving gradual transitions in workplace practices may improve both the safety and efficacy of employed lawyers exposed to trauma. One potential gradual transition could be to follow the example of health care settings and move from being a “trauma-aware” workplace (where staff have received effective training so they understand trauma, its effects, and how people often adapt to it), to a “trauma-sensitive” workplace (which implements some concepts of a trauma-informed practice), to a “trauma responsive” workplace (where a firm encourages changes in lawyer behavior to strengthen their resilience and protective factors), to finally a “trauma-informed” workplace (in which all personnel, including professional, management, and support staff, are aware of trauma and its adaptations and that all practices in the system are responsive to trauma, including its direct and indirect effects). However, such transitions would be costly and time-consuming and may even dissuade law firms from encouraging attorneys to undertake emotionally challenging pro bono cases.

A more appropriate suggestion for busy law firms, particularly those whose attorneys only come into contact with traumatic material as part of their pro bono work, is to provide trauma-informed training for attorneys undertaking specific pro bono projects (such as those concerning sexual violence, torture, or domestic abuse). Viewing trauma-informed training as part of professional development or continuing legal education requirements may help lawyers not only to protect themselves, but to improve their client skills.

Another option is to require attorneys at risk of secondary trauma through their pro bono work to build their resilience. The APA provides a system for introducing 10 practices that could help professionals in any field build resilience to work effectively with traumatized clients (visit www.apa.org/topics/resilience). The ABA provides some general tips for building resilience as a lawyer at www.abajournal.com/voice/article/how-lawyers-can-build-resilience. While it is tempting to reduce these systems to “eat well, exercise, drink less, set boundaries,” this neither negates the cogency of that advice nor means that it is not worth repeating. Lawyers are notorious for failing to eat well, sleep properly, moderate their alcohol intake, and set work boundaries, and yet we are also famous for developing idiosyncratic coping mechanisms. It is not a coincidence that Dickens’ Mr. Jaggers scrubs his hands meticulously after every case, to the extent that he needs to “scrap[e] the case out of his nails” before leaving the office. Whether it is completing your daily Wordle before starting work or needing to shower off the day as soon as you come home, we all resort to habits to distance ourselves from our work. The risk with attorneys exposed to secondary trauma is that these habits can quickly become negative ones, such as excessive drinking.

Requiring attorneys in your law firm who take cases that are likely to expose them to secondary trauma to participate in wellness monitoring and/or resilience-building training is a practical means of supporting those attorneys and encouraging them to continue undertaking this necessary and important work.

The American Medical Association describes “severe and persistent distress or loss of ability to function after exposure to overwhelming stressors of fatigue, trauma, loss, or moral injury” in language normally reserved for physical injury (“stress injury”), indicating that the organization views exposure to such stressors as warranting the same sort of treatment that we would give to a fracture or a broken limb: support. Read more at www.ama-assn.org/practice-management/physician-health/first-aid-kit-will-help-you-treat-stress-health-care.

Support in the form of resilience training or trauma-informed training is by no means a panacea, but it would at the very least be a welcome analgesic for attorneys who volunteer their time to representing those who are most at need. Given that the word “passion” has its roots in the Latin passus, meaning “suffering,” it may be time for pro bono attorneys to disconnect the passion from the prose.

Amelia Clegg, Esquire, is a litigation associate at Blank Rome LLP in New York, New York. She is also an English barrister and is a member of both the New York American Inn of Court and the Honourable Society of the Inner Temple.