Our Fatal Flaw -- A Humble Message to My Colleagues

We lawyers have been trained and enculturated to be hard-working, driven, and selfless. These admirable traits are drilled into us in law school, and reinforced through our social interactions with each other. In law school, the burdens of schedule make us “pull all nighters” trying to read and outline 20 pages a night for each of five classes, while participating in mock trial exercises, law review, etc. Young lawyers are sought after and praised for their ability to work long hours, including nights and weekends, to get the job done. All of us admire the lawyer who works all weekend to finish a project or prepare for that key hearing. The ethical requirements that we put our client above ourselves, and faithfully and diligently serve the client[1], are at the heart of these work ethics, and most of the lawyers I know take this duty and obligation very seriously.

Immediate accessibility through technology (smart phones in particular) has made us available to solve client problems at any and all hours of the day and night. Our drive to serve the client and be responsive seems to fit right in with this relatively new access. Again, the enculturation of the profession rises to applaud this new “24/7” responsiveness, and I hear lawyers brag about receiving calls from clients at 2am, or on Saturday night. If you are a criminal defense lawyer, this access is a critical part of your job function. If you are a business lawyer, it is probably rare that this level of access is mission critical.

It is a cliché that clients do not want to hear that you represent anyone else. Through our encouragement, clients have come to think that theirs is the only case or matter on our desk. Rationally, they and we know this is not true, but nonetheless, this myth pervades the relationship between us. This feature of our position as trusted advisors, now coupled with immediate and perpetual access through email, text, and phone, has created a dangerous situation.

In classic Greek plays and literature and their progeny, heroes would often have this one flaw in their character or body that leads to their downfall (as in Achilles and his heel, or Macbeth and his ambition). Our desire to be constantly accessible and responsive may be our fatal flaw. The “fatal” part of this is not just allegory. I read with horror, and sober recognition, the effects of this syndrome in the widely circulated and gut-wrenching article “Big Law Killed My Husband”.[2] Less severe, but very serious, health effects are everywhere with our colleagues, yet we persist in praising the behavior that forms a real health risk. Heart issues, hypertension, and alcohol and drug abuse are common among us. [3] Add to this the rampant marital problems plaguing us, and you have a near complete picture of the scope of the problem.

Make no mistake – this short article contains no panacea. If the first step in solving a problem is acknowledging its existence, then maybe this is that beginning. If my 28 years of practice give me any credibility, especially for younger lawyers at the start of their practices, then I think the following practical solutions deserve some thought:

·        Set boundaries. You are entitled to take time off, spend time with your family, and otherwise have a life outside of the law. A non-urgent call or email at 5pm on Saturday night should not elicit a response before Monday morning.

·        Manage expectations. In our role as a trusted advisor, communication should be the foundation. In fairness to our clients, we should make it clear to them that we may not be available 24/7, except in true emergencies.

·        Don’t reward bad behavior. It is counterintuitive for us, and hard to do, but we really need to learn to not respond immediately to the midnight email and weekend text, absent a real emergency.

The bottom line for me is that I will continue to zealously represent my clients, and will be available any time at all for true emergencies. There will still be weekends and late nights devoted to completing the critical project. I will do anything for my client, within legal, ethical and moral bounds, except sacrifice my family, my health, or my mental well-being.

[1] From the Texas Lawyers Creed: “A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate means to protect and advance the client's legitimate rights, claims, and objectives. A lawyer shall not be deterred by any real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest.”

[2] https://www.law.com/americanlawyer/2018/11/12/big-law-killed-my-husband-an-open-letter-from-a-sidley-partners-widow/

[3] “As per a 2016 study more than 1 in 5 lawyers reported that they felt that their use of alcohol or other drugs was problematic at some point in their lives, and, of these, nearly 3 of 4 reported that their problematic use started after they joined law school.” https://www.psychologytoday.com/us/blog/sure-recovery/201707/drug-and-alcohol-abuse-in-the-legal-profession