The Burnout Pandemic: Accommodating Workaholism in the Practice of Law
For more than 20 years, social scientists have documented the pervasive incidents of depression and burnout in the legal profession. For that same 20 years, the profession has sought a means to address the consequences of these conditions. In general, efforts have included (a) creating lawyer assistance programs; (b) encouraging practicing attorneys to self identify themselves as being subject to these conditions; and (c) urging the creation of “work life balance” initiatives. Those efforts have neither stemmed the growth of depression/burnout nor created a satisfactory method for assisting lawyers who succumb to pressures of the profession.
From the Board of Editors:
Mr. Angel’s conduct resulted in great harm to his clients and eventually cost him greatly, both professionally and personally — and the OBA thousands of dollars. His story represents a warning to all legal professionals of the potential danger that may befall anyone for whom the practice becomes an outsize part of life. For candor in sharing what must be a deeply personal and painful story so that others might avoid the same pitfalls, the Oklahoma Bar Journal Board of Editors would like to extend appreciation to Mr. Angel.
If you or someone you know is struggling with depression or substance dependency, please call the OBA 24/7 hotline at (800) 364-7886. You are not alone.
The failure of these approaches appear to be due to the fact that they have relied heavily upon approaches to other addictive behavior. Items such as “self identification,” “lawyer assistance programs” and “lifestyle changes” are all derivative of classic approaches to drug and alcohol addiction. However, workaholism, unlike any other addictive behavior, is encouraged and reinforced by society. Indeed, within the legal community, the institutions of the profession take a lead role in enabling this addictive behavior. Therefore, an approach which focuses solely upon individual lifestyle choices is doomed to failure because the society, the profession and the institutions of the profession will effectively undermine the individual’s attempt to adjust his “work life” balance. Stated more directly, if an individual commits to adjust his lifestyle to eliminate the stressors that lead to depression and burn out, his progress will soon be undermined by the realities of the need for financial and professional success that is inherent in what lawyers do for a living.
This is not to say, and this article does not argue, that addressing the problem of depression and burnout is solely a societal or institutional problem. Quite frankly, there is no hope that during our lifetime the pressure towards workaholism in the profession will change significantly. Rather, this article argues that rather than simply trying to cure the condition which causes depression and burnout, the institutions of our profession work proactively with lawyers to accommodate the imperative to succeed.
UNDERSTANDING THE RELATIONSHIP BETWEEN BURNOUT AND WORKAHOLIC LAWYERS
Understanding How Bad it Can Get
In preparing to write this article, I recognized that prior discussions of the issue of workaholism were always clinical in nature and failed to effectively communicate the devastating consequences of burnout. I realized that in order to humanize this article, and to establish my bona fides for the observations I make, I would have to discuss in detail my own experiences.
My name is Steve Angel, and I am neither a social scientist nor a representative of any of the institutions of the legal profession. I am a workaholic who, after 27 years in the profession, hit a wall, crashed, burned and lost the one thing I always wanted to do—practice law.1
Oddly, my story is not one of failure but one of success. And that is the inherent problem with a lawyer’s lifestyle. Too often, success is the drug that leads to addictive behavior. The more successful we are as lawyers, the more we work to achieve greater success, the more we develop dysfunctional behaviors that lead to depression and burnout.
In this regard, I was a classic underachiever until I reached law school. But on that first day of orientation I had the fear of God put into me. When the dean of the law school gave the famous “look to your left, look to your right, two out of three students don’t make it here” speech, I committed to myself I was not going to be one of those people who failed. And so I started my traditional 100-hour work week, and I was rewarded with high grades.
And so it went. I worked harder; I made law review. I worked harder; I got my dream job with the National Labor Relations Board. I worked harder; I was successful as a field attorney with the NLRB. I worked harder and was successful as a supervisory attorney with the Federal Labor Relations Authority. I left government service and established my own firm, and I found out what real work was like. For the next 23 years, I never put in less than 80 hours in a week—and frequently exceeded 100 hours. The night my son was born, I was working on firm financials in the waiting room after my wife delivered. I worked harder, and the case load expanded. As I added more personnel, I added more functions. Once solely a litigator, now I became a chief executive, manager and immediate supervisor in multiple offices.
This constantly expanding workload was like a black hole swallowing everything within its gravitational pull. Every time I think of that time, I feel like paraphrasing the classic Martin Niemöller sermon:
The first thing to go was sleep
But I didn’t complain because I didn’t need sleep
The next things to go were my friends and hobbies
But I didn’t complain because I needed my work more than I needed my friends and hobbies
The next things to go were my marriage and my family
But I didn’t complain because I believed my work served a greater good
Finally, I had nothing left, and nothing and no one to save me from myself.
And so it was. Instead of eight hours of sleep a night I was able to get by on six hours and finally four hours. The next things to go were my hobbies. I didn’t have time for reading, so I stopped reading for fun. I didn’t have time to take off from work so I stopped taking vacations. Then I stopped socializing because I didn’t have time to waste away from work. Then I suffered through a divorce and the loss of my family.
For the next 10 years, the chief source of joy in my life was winning a case. Finally, in 2003, I had nothing left to give, hit a wall and crashed and burned.
This is not to say that I didn’t have plenty of warnings along the way. At CLE meetings, Dan Murdock, who was then OBA general counsel, would constantly advise every lawyer he could reach of the importance of maintaining a healthy personal life. I remember his warning that the bar seldom had problems with lawyers who had a well balanced life. But I never thought it would happen to me.
The warnings about my workload became louder over the next five years. In 1987, during counseling sessions seeking to halt the inevitable divorce I was going through, the counselor pointed out that my life style was inherently destructive of any sense of stability or commitment to the marriage. I understood at the time what the counselor was saying—but I simply didn’t listen. My divorce simply freed up more time to take in more cases.
In 1993 I received a public reprimand for failing to promptly and diligently represent a client.2 Shortly after that reprimand, Judge Robin Cauthron issued a public rebuke for a lawyer who had taken on a greater workload than he could handle. In summarizing the problem, Judge Cauthron wrote that the facts “reveal a law firm out of control and unable to handle its caseload.” Judge Cauthron further noted the firm was still aggressively seeking new clients while unable to provide adequate representation to existing clients. Although directed at someone else, I felt that Judge Cauthron had actually seen my client list.
The combination of Judge Cauthron’s warnings to another firm, and my public reprimand forced me to actually listen to the warnings about my workload. I just kept working harder to be sure I was able to handle the caseload I had taken on. This required me to hire more staff, which required me to take on more cases to pay for the staff which, in turn, created more work.
In 2002, I recognized that I was reaching the beginning stages of burnout. The key to me was that I no longer took any joy in winning cases. I could no longer get my adrenaline pumping to put in those 20 hour days. All I wanted to do was to stay in bed and not go to work.
Recognizing that I couldn’t live like this anymore, I stopped taking in cases. I felt like if I could just spend a year closing my cases, I could save myself. However, as I stopped taking in cases, I also tried to reduce overhead. The reduction in staff associated with trying to wind down the business created a situation in which I had to work harder still.
As I worked harder, and longer, in order to close cases, the feelings of depression, which had begun to limit my abilities in 2002, began to seize my life. My staff often had a hard time getting in touch with me because (unbeknownst to them) I was in bed with the covers over my head hiding from the world. I knew I had to get up and get to work, but I simply could not force myself to do it.
One of my staff members became so concerned about my growing depression that she contacted Dan Murdock at the Oklahoma Bar Association. When I met with Dan, I explained to him that I had seen enough cases of depression in my clients to know what was happening. I told him that I had closed out almost half my case load, and that I was pushing to close out the remainder of the cases one way or another. I told him that I knew a number of clients were becoming dissatisfied because I was never in the office and had a hard time returning all the calls because of the constant demands to close those cases. I specifically asked Dan if he had any suggestions on how I could solve the problem in a way that was acceptable to the bar. Dan said that he didn’t have any program for overworked lawyers.3 The bar did have a program to help with a business model, but he didn’t think that sounded like my problem. Dan said the only thing he could do was to remind me of the ethical obligation to diligently represent my clients.
When I left Dan’s office, I recommitted myself to working the cases to get them closed. This lasted for another two months, and I started spending more and more time in bed trying to force myself to get up and do the work. I would lay there in bed knowing full well the horrible consequences of not getting up—and still not being able to force myself to get dressed.
By July 2003, I had closed approximately 110 of my 150 cases. My office lease was up, so I closed the office and tried to work out of my house without a staff. For some reason, leaving the office and working out of my house seemed to trigger the major depression. I no longer had an office to go to, so I think subconsciously this allowed me to spend more time in bed hiding from my responsibilities.
When I say the depression took complete control in the fall of 2003, I was in severe distress. I spent virtually the entire day in the study in my house where I could block out any light and hide from the world. I wouldn’t walk out to the mailbox to get any mail. It stacked up so much that the post office refused to deliver it anymore. If the phone rang or the doorbell chimed, I would become panicked and rush to hide inside an interior bathtub for hours in fear that someone was nearby. I couldn’t bring myself to face anyone or explain to anyone what was going on. The depression was so severe that I learned subsequently that my IQ dropped to below 90. On one occasion, Judge Friot, unable to contact me and having heard from my clients about a pending case became so concerned he sent marshals to my house to try to find out if I was okay. When I appeared before him to explain my absence, all I can remember is not being able to stop crying in open court.
At some time in October, an investigator from the OBA appeared at my house. To this day I can’t remember who it was or how he got into my house. I just remember him sitting at my dining room table and saying, “Steve do you think you are in any condition to continue representing your clients?” That got through to me. I knew I wasn’t. And so, I signed a voluntary resignation from the bar. I knew that since many of my remaining clients had filed bar complaints against me, this resignation would come with some stiff penalties. But he was right; I just was not in any condition to represent my clients.
I wish I could say that after I resigned from the bar, things got better. They really got worse. A feeling of complete failure now exacerbated the depression. If I was unable to function as a lawyer before, after my resignation I had difficulty functioning as a human being. My fear of opening mail, answering telephone calls and opening the front door continued to grow for months thereafter. I was virtually a hermit hiding in the dark recesses of my house.
During that next year, I saw my psychologist who got me on antidepressants, which at least allowed me to function at a basic level. More importantly, I was lucky enough that an attorney named Carl Hughes became worried about me. At some intuitive level, Carl understood that what I needed more than anything was work that I was capable of performing without any stress. He started me working as a law clerk/research assistant on investigations and research projects. As the project developed, he would monitor my work and when he felt I was becoming overwhelmed and depressed, he would cut the work off for a period. He knew when to push and when to back off. I think without Carl Hughes I would never have pulled myself back from the abyss.
So, answering the question of how bad it can get, the answer is worse than you can imagine. Left unattended, you will lose the very things that make your life worthwhile. The black hole of depression, and its gravitational pull, will swallow you up and leave you with nothing. Knowing that I was one of many to whom this occurred makes it no less difficult to accept. It is my hope that in this article, my experience will provide a vignette which underscores the clinical research.
THE BURNOUT PANDEMIC
The reference to a “burnout” pandemic in the title of this article is not hyperbole. For over a quarter century, psychologists have been describing worker burnout throughout the world as a mental illness of epidemic proportions. What was described as an epidemic in the 1980s has now reached pandemic proportions with as many as half the workers in high stress occupations suffering from some form of burnout.
Initially, the research suggested that the root cause of burnout was the failure of individuals to appropriately cope with the stress of the modern workplace. However, as evidence of burnout has continued to grow exponentially, researchers have recognized that it may well exist as a result of societal and institutional pressures.4 As a result, European countries have recognized “burnout” as an occupational illness for which the employer, rather than the employee, bears financial responsibility.5
The classic definition of burnout is a progressive “syndrome of emotional exhaustion, depersonalization and reduced personal accomplishment.”6 The emotional exhaustion arises as a result of the workload, the depersonalization arises as the volume of work forces the practitioner to dehumanize his own clients and the reduced personal accomplishment relates to the perception of that the worker is not performing in a worthwhile job.7
On its face, this description would appear to be inapplicable to professions such as lawyers. While we have seen the workload create an emotionally fragile state, the very nature of the work would appear to require continued connection to one’s clients and a sense of accomplishment. However, in considering those lawyers, including myself, who reached the most severe levels of burnout, the dehumanization of clients (they became cases to close rather than people) and the loss of feeling that I was performing worthwhile work became manifest.
In addition, one author has differentiated between traditional concepts of burnout and burnout among successful people. Termed “supernova burnout” the author explained that it “afflicts successful people who find their vocations are no longer psychologically rewarding.”8 Thus, lawyers who began their practice receiving the psychological reward of an important job well done lose that compensation as a result of the overwhelming workload that dehumanizes the clients and makes the work feel meaningless. More important, professionals subject to “supernova burnout” feel that “other people are encroaching on them…using them like a ‘tool’ by demanding that they fulfill performance expectations or sustain previously achieved levels of success.”9
Irrespective of any dispute of the psychological underpinnings of burnout, the results of burnout are universally recognized. The symptoms are progressive and cumulative. It is a gradual process having “no beginning and ending point but varying levels or degrees.”10 The initial signals involve feelings of fatigue, frustration, anger, depression and dissatisfaction. As burnout progresses, these feelings become more severe and chronic.11
Physical symptoms of burnout manifest as low energy, chronic fatigue, sleep difficulties, headaches, colds and physical weakness. Cognitive symptoms range from stereotyping and depersonalization to cynicism and negative attitudes toward clients, work and self. Emotional symptoms include feelings of helplessness, hopelessness, guilt, anxiety and entrapment. Behavioral symptoms are seen in absenteeism, aggression, changing jobs, substance abuse and leaving one’s profession. In addition, Grosch and Olsen (1994) identified symptoms of burnout related to the spiritual dimensions of life, which include loss of faith; loss of meaning and purpose; feelings of alienation and estrangement; despair; and changes in values, religious beliefs and religious affiliation.12
There are only a limited number of studies of the extent of burnout in the legal profession, and none of them compare the legal profession to the population as a whole.13 However, there have been studies of the symptoms of burnout amongst lawyers which support the conclusion that the burnout pandemic is particularly prevalent among lawyers.
A Johns Hopkins University study found that lawyers are the most likely group to suffer major depression and 3.6 times more likely than all occupations studied. Further, a study by the National Institute for Occupational Safety and Health found that lawyers had higher suicide rates than other occupations.14 Lawyers suffer alcohol and substance abuse at a greater percentage than the population in general.15
In light of the evidence that incidents of depression and substance abuse are significantly underreported,16 it is reasonable to project pandemic proportions to lawyer burnout. This conclusion is buttressed by studies of lawyer job satisfaction. Studies by the American Bar Association show that between 15% and 23% of lawyers are dissatisfied with their jobs.17 These rates of dissatisfaction were corroborated by a 2003 Oklahoma County Bar Association study.18
THE WORKAHOLIC LAWYER
The term “workaholic” was first “defined as an addictive disorder in a person ‘whose need for work has become so excessive that it creates noticeable disturbance or interference with his bodily health, personal happiness and interpersonal relationships.’”19 Over the next 40 years, the scientific community has been split on whether the definition should carry such a negative connotation. Many scientists suggest that rational workaholism was a positive condition which need not interfere with other interpersonal relationships.20 In 2006, Piotrowski and Vodanovich distinguished between functional and dysfunctional workaholism and described the latter as follows:
“[D]ysfunctional” workaholism is a rather insidious, progressive maladaptive set of behaviors that becomes exacerbated over time. The syndrome begins when normally functioning individuals/employees face stressors, emanating either from within individuals or external demands. These stressors initiate workaholic tendencies and behaviors, which in the early stages, do not interfere with one’s normal functioning. Indeed, such workaholic behaviors are often reinforced at work (e.g., positive performance evaluations) and at home (e.g., greater income). However, over time, the personal characteristics of individuals interact with job/work factors to produce a deteriorating environment both at home and work. That is, workaholism behaviors begin to intensify at this point, with work becoming a primary source of reinforcement. As workaholic behaviors begin to escalate out of control, alienation at work and disengagement with family and friends occur. During this dysfunctional phase, the employee experiences health symptoms, burnout and problem awareness (or denial). The result of this emerging pathological process culminates into the full-blown Workaholism Syndrome.21
In this description lies the fundamental explanation of the burnout pandemic within the legal profession. Workaholic behaviors are inherent in the practice of law and reinforced by society and the institutions of the profession. These behaviors and reinforcement agents, initially producing a positive result, can become chronic and result in full-blown workaholism.
The two primary workaholic behaviors are 1) working long hours and 2) withdrawing from healthy interpersonal relationships with family and friends. Three lesser behaviors have also been identified 3) obsessive compulsiveness/perfectionism 4) competitiveness and 5) conflict. These behaviors which in the early stages of workaholism are productive and responsible for an individual’s success, become the core of the workaholic’s being in the dysfunctional stage.
The existence of long hours of stressful work has been a core requirement of a successful law practice. In many law practices, 50- to 90-hour work weeks are the norm.22 In 2001, the ABA reported that 60-hour work weeks are routine and that 40-hour weeks are considered part-time work.23 In 2007, it was reported that 56% of “extreme workers,” including lawyers, are on the job 70 hours a week or more, 25% are on the job 80 hours a week and 9% are working more than a 100 hours a week. Fifty percent of these extreme workers cancel vacations due to work pressure.24
Based upon these studies, this leaves very little time for a personal life. For example, assume that most lawyers work at least 70 hours per week, spend 10 hours a week commuting to work and 56 hours a week sleeping. This allows 32 hours a week for a personal life. Further, assuming that eight hours a week are spent on catching up on “household chores” on the weekend this leaves only 24 hours a week for a personal life—or 3.4 hours a day.
This large commitment of time has a snowball effect on the loss of personal relationships. There is simply not enough time to maintain many relationships. As relationships fail, professionals tend to (a) commit themselves to the area in which they are successful, i.e. their work, and/or (b) self medicate with alcohol and other substances. The combination of the sense of failure, the emotional loss of relationships and, for some, self medication, creates further stress, further depression and further withdrawal from a shrinking personal life.
In addition to these behaviors, the practice of law also involves three other workaholic behaviors. The importance of rules to the practice of law mandates that lawyers develop an obsessiveness, or desire for perfectionism, in order to ensure a quality work product. The constant pressure to “get it right” can often transform the lawyer from a healthy productive individual to one with increasing symptoms of mental illness. Moreover, the competition and conflict inherent in our system of advocacy, particularly where joined with emotional stress of shouldering the client’s troubles, tends toward maladaptive behavior. As one author explained:
One root cause of workaholism is the very nature of our adversarial legal system, which requires many lawyers to adopt a dog eat dog pessimistic world view. With this environment it is realistic for lawyers at times to suspect that people have ulterior motives, that it is safe to be secretive, that others will seize every opportunity to take advantage, and that manipulation and selfishness is widespread.25
REINFORCEMENT OF WORKAHOLIC BEHAVIOR
The fact that maladaptive workaholic behavior is inherent in the practice of law is further exacerbated by external societal and professional influences. These influences include (a) societal support for the work/success ethic; (b) attrition; (c) demographic changes in the profession; (d) institutions of the profession; and (e) technology.
These external influences, like the workaholic behavior’s discussed above, all serve a significant interest in maintaining the quality of the profession. However, these influences exercise powerful dominion over lawyer’s subconscious and may explain why existing treatments have failed to prevent relapse into dysfunctional behavior.
The Work/Success Ethic
At the core of the motivation of workaholics is that work is essential to their very being. Work, in our society, is not only necessary for survival but as a means to define us as human beings. Contrary to popular belief, this central role of work did not begin with the Protestant reformation. Paul’s epistles to early Christians identified work as a form of serving God,26 the philosopher Philo of Alexandria argued that Adam was created in order to work the Garden of Eden,27 and Marcus Aurelius urged that work was the attribute that separated man from beasts.28 Thus, the primacy of work urged by Martin Luther and John Calvin were extensions of the already well established work ethic. In the 19th century, Calvin’s work ethic was transformed by the realities of the Industrial Revolution.
As described by Daniel Boorstin, the combination of Protestantism and modern capitalism “made a virtue of the personal qualities required to become rich.”29 The transformation from the work ethic to the gospel of wealth was only an intermediate step to the current societal view of work. In the post-WWII civilization, the traditional work ethic has been replaced by an all consuming pursuit of public recognition of success. In his landmark work, Christopher Lasch described our current zeitgeist:
In a society in which the dream of success has been drained of any meaning beyond itself, men have nothing against which to measure their achievements except achievements of others. Self-approval depends on public recognition and acclaim, and the quality of this approval has undergone important changes in its own right. The good opinion of friends and neighbors, which formerly informed a man that he had lived a useful life, rested on appreciation of his accomplishments. Today men seek the kind of approval that applauds not their actions but their personal attributes. They wish to be not so much esteemed as admired. They crave not the fame but the glamour and excitement of celebrity. They want to be envied rather than respected. Pride and acquisitiveness, the sins of an ascendant capitalism, have given way to vanity.30
This socialization process creates a powerful reinforcement of workaholic behaviors. That is, the pursuit of success controls our psyche. In the practice of law, success translates to more work hours and less personal interaction. Our driving force is no longer the quality of our life, but the visage of success created by long hours of work.
A second reinforcement of workaholic behaviors is simple attrition. The fact is that law school and the first years of practice tend to weed out the non-workaholics. In this regard, this initial training relies heavily upon methods based upon maladaptive behaviors, such as heavy workload, increased time pressure, competition, perfectionism and the treatment of altruism as naïve.31
Not surprisingly, when students begin their legal training, their incidence of mental illness approximates the population in general. After the first year, 52% of students suffer from depression (versus 5–9% in the population in general); the second year, 40% were still depressed and two years after law school 17% remained depressed. Thus, lawyers starting out in the profession suffer depression at a rate twice to four times the general population.32 Indeed, the very concept of “minimum billing hours” for associates with established firms presupposes an established level of workaholism by which young lawyers are trained to sacrifice their personal lives to meet production expectations. Those who cannot embrace these maladaptive behaviors are eliminated through attrition.
Stated simply, women are the future of the legal profession. At one point, it was believed that women would be less subject to maladaptive behaviors than men. However, recent studies have shown them to be subject to workaholism to the same extent as men.33 Indeed, women in the profession face an additional stressor not faced by most men, i.e. the burden of being the primary caregiver in the home.34 This paradigm of the modern family causes further attrition within the profession. Those women who are unable to shoulder the burden of twice the work of their male counterparts are leaving the profession. The result is that the remaining women lawyers will continue to engage in working long hours in two separate sectors of their lives.
As previously discussed, the very institutions of the profession reinforce workaholic behaviors. The training received in law school, the workload imposed by law firms, the workload required to litigate increasingly complex cases, the perfectionism required by the courts and the fear of sanction by the bar all reinforce workaholic behaviors.
Originally it was believed that technology would reduce the workload of lawyers. The advent of computers, Internet access and mobile technology was predicted to be the solution for an absence of personal life for high achievers. In fact, this technology has reinforced maladaptive behaviors in several significant ways. The line between work and home has been effectively eliminated. Attorneys who try to leave work to attend to their personal lives are constantly in contact with the office. The stress of the office never goes away. At the same time, the increased technology has increased time pressures.35
When I first started practicing law, a letter from opposing counsel imposed a two– to three–day turnaround. Now, with e-mail, the practitioner is under pressure to respond within hours rather than days. Moreover, the productivity tools provided by technology have increased the tendency toward obsessive compulsive/perfectionist thinking. Accordingly, rather than making more time for personal life, modern technology has reinforced existing workaholic behaviors.
ACCOMMODATING THE WORKAHOLIC LAWYER TO PREVENT BURNOUT
[W]orkaholics bring an incredible resistance to a treatment setting presuming that is, that they are willing to accept the need to modify that lifestyle that Spreull referred to as ‘the addiction most rewarded in our culture.’ In bottom line terms workaholics resist…because workaholism not only thrives within our culture but to some it is the embodiment of our materialistic ethos.
Stephen Berglas, Treating Workaholism
Traditionally, the legal profession has attempted to address lawyer burnout on an individual basis without consideration of the societal and professional sources of the condition. The bar has established a “lawyer to lawyer” program as an extension of its alcohol/substance abuse program. Law firms have adopted “work/life balance” programs designed to make the workplace more satisfying and the workload less stressful. At the same time, the institutions of the profession have ignored the maladaptive behaviors which are caused and reinforced by the practice of law.
This article urges that addressing the symptoms of burnout, while ignoring the impact of workaholism, is simply shuffling deck chairs on the Titanic. You cannot “cure” the symptoms of burnout when there are powerful social and professional forces that reinforce a need to return to unhealthy behaviors. It is unlikely to be successful to convert a workaholic to a balanced lifestyle without taking into consideration the external factors forcing the lawyer to return to the dysfunctional behaviors. Indeed, the record on the success of such programs is limited at best.37
It is equally untenable to suggest that established external pressures which insure the viability of the profession are going to change. Long work hours, attrition, changing demographics and institutional reinforcement are going to continue to pull lawyers toward workaholic behaviors.
Without an effective individual “cure” for burnout, or the possibility of widespread changes in the requirements to practice law, the question arises whether there is any way to avoid the mental illness that is occurring as a result of their desire to succeed in their chosen profession.
It is suggested that the solution lies in accepting reality. That is, accepting that powerful forces will encourage lawyers to engage in a pursuit of success which is unhealthy in the long run merely means that the profession must become adaptive in addressing these forces. Because the dysfunctional trinity of workaholism, depression and burnout are all progressive in nature, the key is to identify those most likely to become dysfunctional and to intercede with proven accommodations that will ameliorate the negative consequences of forces inherent in the practice of law.
The key to any accommodation to workaholism is identification of those in need of assistance. Since workaholism, depression and burnout are all progressive conditions, the key is to select the most appropriate stage to provide that assistance. Unlike other addictive behavior, workaholism can be addressed too early. Functional workaholic behaviors are engrained and essential to the success of the individual and the profession. It is only when the behaviors become dysfunctional that intervention is appropriate. The profession must, in conjunction with mental health professions, identify the optimum point in time for identifying workaholics.
At the present time, aside from generalized “work life balancing” programs, self-identification is the key element of any assistance provided to the workaholic. Intervention by the institutions of the profession is normally delayed until the attorney has suffered significant mental illness and/or chemical dependence.
Self-identification of addictive behavior makes perfect sense for all other forms of addictive behavior. Unlike other addictive behavior, a workaholic attorney may not know he is impaired until he is critically ill.38
The statistics on lawyers suffering from depression demonstrate that self-identification simply does not work. For example, we know that there is a relatively steady 17–20% of the professional population who are suffering from depression at any given time. We also can see from the record of bar complaints that the symptoms of depression/burnout often manifest themselves in a failure to adequately represent clients. Although the numbers of self identifying attorneys are not public, it seems unlikely that anywhere near this number seek assistance without the intervention of a third party. The clear pattern has been that at-risk attorneys often do not become apparent to the bar until there is a professional responsibility issue. At that time, the attorney may raise his mental health condition in mitigation of a penalty.39
If a more proactive identification process were established, the bar and the attorney might avoid future damage to clients. The key to this identification is to “red flag” conduct rather than a medical condition. In this regard, certain conduct is clearly indicative of growing dysfunction. For example, for my own part, when I received the public discipline in 1993, I resolved to never again fail to meet my obligations under Rule 1.3. However, since I was unaware of my own growing dysfunction, I failed to seek appropriate relief. Rather, I just committed to work harder—the worst thing I could have done.
Moreover, the bar association is not the only institution that could proactively engage in identification of potential dysfunctional workaholics. Just as the “red flag” for the bar association are complaints under Rule 1.3, the judicial system has a front row seat to missed deadlines and other indicia of burnout. Again, rather than making a medical determination, the judiciary could well establish a referral system when attorneys meet some threshold of missed deadlines and dates.
Furthermore, law firms, more than any other institution, are in a position to know when their attorneys are transforming from a fully productive workaholic into a dysfunctional workaholic.
Once an at-risk attorney is identified, the next step is to identify the assistance that is necessary to restore his mental health. Certain techniques, discussed below, should be used in virtually all cases in which either burnout or dysfunctional workaholism is indicated. However, the exact nature of the assistance to the impaired attorney is going to depend upon the nature of the impairment, the severity of the impairment and the willingness of the attorney to participate in the accommodation. For this reason, it is critical that the assisting party (the bar and/or the law firm), should adopt a “flexible, interactive” approach to accommodations. The assisting party should begin by asking the impaired attorney what he/she needs to recover full mental health. Beyond this, the assisting party must be in contact with, and make use of, professionals who are experienced in treating and assisting workaholics. This expertise is critical to designing an effective proactive accommodation in order to take into account the nature of the profession which will reinforce dysfunctional behavior.
I use myself as an example. Once I crashed and burned and was in major depression, I was lucky enough that my neighbor was a psychologist, Dr. Richard Sternloff. He started me on anti-depressants and began sessions with me in which he reminded me that the sum of my career was not all failures. In session, he reminded me of the people that I had helped over the years by application of the very behaviors which were now pulling me into a black hole. Thereafter, as I discussed above, I was lucky enough to have Carl Hughes reach out to me. While Dr. Sternloff helped me become human again, it was Carl, giving me just enough research work to restore some sense of pride, complimenting me on my work and watching over me to ensure I didn’t slip back into blackout depression.
That combination of Dr. Sternloff’s professional assistance and Carl Hughes’ supervision of my work, rather than any standardized template for accommodating a dysfunctional workaholic, is what has worked with me. That is what is meant by a “flexible, interactive” approach.
At the heart of dysfunctional workaholism is the inability to modulate work overload. As the workload increases, and the condition becomes more severe, there is a feeling of a lack of support from peers and a resentment that everyone is using the attorney as a “tool” for their own ends.40 As I found out from my experience with Carl Hughes, having someone supervise your work, ensuring that you are not returning to dysfunctional behaviors, provides both a sense of support as well as a stopgap against overworking.
In addition, the source of the assistance must resist the temptation to subject the workaholic to a training campaign on the importance of work life balance. The workaholic has heard all that before and not been able to internalize it. It is their work that they have succeeded with, and it is practicing functional work habits that can return them to full health. This concept was discussed by Dr. Berglas:
Most workaholics do not accept the need for psychotherapy unless or until they are subjected to an event that prevents them from working… As a rule, they cling to their lifestyle with a tenacity befitting someone who fears dissolution if unable to indulge in it. During the process of building a therapeutic alliance with a workaholic, all discussions of balance (e.g. adding recreational pursuits to one’s life or cutting down on overtime) should be avoided. I have found that the paradoxical technique of adding work that forces a workaholic into collaborative relationships is of far greater value in heightening his awareness of the dynamics of his disorder than seeking to limit his involvement in professional pursuit. When this end can be achieved with the cooperation or collaboration of a patient’s employer, the likelihood of successful treatment outcome is enhanced significantly.41
In short, the use of carefully controlled work assignments will allow the lawyer to restore himself and, at the same time, learn to modulate workaholic behaviors.
The burnout pandemic within the legal profession is directly attributable to maladaptive behaviors inherent in the successful practice of law. This article suggests that attempts to cure either “burnout” or “workaholism” have failed because of entrenched societal and professional forces that tend to return lawyers to the same dysfunctional behavior. This article suggests, therefore, that rather than trying to cure the mental illness, the institutions of the profession should take a proactive approach in identifying, accommodating and supervising those individuals at risk of significant mental illness due to the very nature of the practice of law.