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Oklahoma Bar Journal

Have You Ever Had a Case That Stuck With You?

Recognizing and Overcoming Secondary Trauma

By April Merrill and Sarah Young

#85263341 | © lizavetta | fotolia.com

“Being a lawyer is not just a job, it’s an identity. It defines who we are, how we think, and what we believe we can do in the world.”1

Aside from doctors, attorneys are viewed as one of the most sophisticated and highly regarded professionals in the United States. Attorneys are known for being intelligent, analytical and refined individuals. Starting in law school, aspiring legal professionals are immersed into dense academics that require a complete shift in priorities. Students often put their personal relationships and hobbies aside in order to attain the level of rigor that is necessary to be successful within the legal profession. However, after passing the bar, issues arise when new attorneys are faced with emotional and moral dilemmas presented by their clients’ cases.2

Unfortunately, legal education does not adequately equip attorneys with tools to successfully navigate the personal aspects of the practice of law.3 As a consequence, attorneys may begin showing symptoms of being negatively affected by their clients’ distressing situations, otherwise known as secondary trauma.4 This often leads to feelings of isolation and ineptitude within the legal profession.5

To put this into perspective, other professions, such as social work, human medicine and even veterinary medicine have been addressing the personal and professional impacts of secondary trauma in their training for decades.6 Unfortunately, the legal profession has failed to adequately follow suit.7 Because of this, attorneys are not trained to identify when a client relationship has affected their mental health.8 In these situations, attorneys may have an ethical obligation to terminate the client relationship and seek assistance for themselves.

TRAUMA OVERVIEW

“You can stuff things down and ignore them, but eventually they will come back and revisit you.”
– Joseph Balkenbush, OBA Ethics Counsel

Most attorneys enter the profession expecting to be intellectually challenged but may not anticipate or understand the psychological or emotional challenges they will face.9 Such emotional challenges arise not merely from the infinite workload or countless hours, but rather from the effects of having to be faced with a client’s darkest day. Attorneys who work in immigration, family, criminal and many other facets of law know this bleak reality all too well.10 From hearing clients recount their experiences, to viewing graphic images, the attorney is not just learning and gathering facts about the client’s traumatic experiences; the attorney, being human, is being affected by it.11

The impacts of such situations can lead individuals, including attorneys, to become traumatized.12 There are two broad categories of trauma primary and secondary trauma and both are relevant in the practice of law. Primary trauma is caused by a distressing event that someone experiences directly, while secondary trauma is caused by a distressing event experienced indirectly.13

Consequently, as a part of the job, attorneys are exposed to traumatic material indirectly.14 Examples include reviewing material such as photographs, recordings and transcripts that contain disturbing content.15 Whether the case involves a heinous situation such as a crime against a child or even a standard property dispute, every detail matters to an attorney who is attempting to effectively advocate for their client. Being immersed in this level of detail, for extended periods of time, increases the chances that an attorney will experience secondary trauma.16

IMPACTS OF TRAUMA

“I don’t think attorneys give themselves permission to hurt.”
– Judge Doris L. Fransein, Chief Judge Tulsa Juvenile Division

While an attorney may readily imagine the effects of primary trauma, particularly in their clients, identifying the effects of secondary trauma and how it may transpire in an attorney’s own life may not be as obvious. Trauma can adversely affect attorneys in multiple aspects of their lives. These manifestations of trauma may translate into some of the following behaviors within the workplace:

  1. Avoidance (arriving late, leaving early, missing meetings, avoiding clients, skipping certain questions during interviews),
  2. Hypervigilance (feeling on-edge, perceiving colleagues and clients as threatening, feeling like all clients are in danger),
  3. Seeing things as “black or white” rather than tolerating ambiguity,
  4. Becoming argumentative and
  5. Shutting down or numbing out (alcohol and drug use are common coping mechanisms).

Besides the workplace, effects of trauma can seep into personal lives as well. Symptoms may include:

  1. Sleep disturbances and nightmares,
  2. Headaches,
  3. Stomach pains,
  4. PTSD symptoms such as intrusive thoughts and memories; severe emotional distress or physical reactions to something that reminds the person of the traumatic event; avoidance of people, places or things that remind the person of the event; irritability, angry outbursts or aggressive behaviors; inability to focus; being easily startled; hypervigilance,
  5. Extreme fatigue/always tired,
  6. Negative thinking and a tendency to become upset about everything,
  7. Strained relationships with family and friends,
  8. Compromised parenting and
  9. Doubts about whether the world is a safe place.17

Trauma affects everyone in a different way. It is important for attorneys to be mindful and identify when they begin to show symptoms. If an attorney finds they have been significantly affected by a client’s trauma, they have options for how to proceed ethically.

DECLINING OR TERMINATING REPRESENTATION

“Acknowledge your own issues and biases, face them, and set them aside. If you are unable to do that, you must let someone else handle the case.”
– Judge Deborah C. Shallcross

In the legal profession, trauma can affect an attorney’s ability to effectively and zealously advocate for a client.18 By failing to walk away from a case that significantly affects their mental health, an attorney may be in violation of the Oklahoma Model Rules of Professional Conduct.19

Such issues are addressed in the rules, beginning with the preamble.

Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. . . Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.20

The preamble suggests that particularly challenging ethical dilemmas can arise that can affect an attorney’s ability to effectively represent a client. More interestingly, the preamble states that an attorney must not only use professional judgment, but also moral judgment. Even so, what does that really mean concerning trauma and its effect on attorneys?

The rules go on to discuss further in Rule 1.16 Declining or Terminating Representation.

A lawyer may withdraw from representing a client if the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement, or other good cause for withdrawal exists.21

As discussed, trauma can significantly affect clients and attorneys.22 If an attorney finds themselves struggling with symptoms of trauma, they should take time to determine if it will continue to impact their ability to effectively advocate on their client’s behalf.23 For example, in the medical profession, some hospitals have guidelines that prohibit doctors from treating or operating on family members because emotions can cloud professional judgement.24 Accordingly, if it is likely that an attorney’s judgment will be hindered, they should sincerely consider stepping aside, in accordance with the model rules.

Initially, it may be easier for an attorney to attempt to endure whatever it is that they are experiencing, but as human beings, they need to take a step back and determine the repercussions likely to affect the client, but also themselves.25 By not declining or terminating representation when a case has had a profound negative effect on the attorney’s mental health, the attorney may find themselves in violation of the model rules.

ETHICAL DILEMMAS INVOLVING ATTORNEY WELL-BEING CONFIDENTIALITY

“You can’t talk to anyone. Sorry, but that’s what you signed up for when you became an attorney.”
– Anonymous

The above statement is something that is being told to aspiring attorneys before they even step foot into the practice of law. It is often argued, and sincerely believed, that attorneys owe an ethical duty to their clients to maintain confidentiality at all costs. After all, attorneys must abide by their ethical duty, otherwise they could be sanctioned, or even worse, disbarred.

Imagine an attorney who just represented a domestic violence victim. The attorney advocated for their client and obtained both a protective order against the client’s spouse and emergency custody of their children. Soon after, the spouse murders the client. If the attorney finds themselves significantly affected by this event to the point that it seeps into their other work, even their personal life, what course of action does the profession suggest the attorney take?

From speaking with those in the legal field, the general belief is that they are unable to seek therapy to address traumatic events independent from the bar because “the records could be subpoenaed and client confidentiality would be breached.” Another way to state this is to say that attorneys who find themselves struggling with the effects of having been exposed to disturbing material or events is that they will endure punishment for allegedly “breaching client confidentiality.” This is simply not true.

OBA Ethics Counsel Joseph Balkenbush said, “As attorneys, we have a duty to protect our clients, but we also have a duty to protect ourselves and our well-being. If a case is one that has deeply affected you on professional or moral level, Rule 1.16 of the ethics rules allows you to withdraw from representation. You can’t be the best lawyer you can be, unless you take the best care of yourself.”

Situations where an attorney’s records would actually be subpoenaed by the court are exceedingly rare. This belief simply is not based on reality and creates yet another barrier surrounding the stigma of addressing mental health. The perception that closely follows the idea that attorneys are unable to seek therapy and speak about work-related topics harms the profession more than it protects it. It is of paramount importance that attorneys balance their ethical obligation with an understanding of also serving the greater public good, which includes taking care of oneself and one another.26 Though it is important to err on the side of caution when interpreting the model rules, it is equally important to interpret the rules with common sense.

If an attorney feels as though they have been affected by trauma, one solution is to call the OBA’s Lawyers Helping Lawyers hotline at 800-364-7886. The hotline is staffed 24/7 by a licensed mental health professional. You might want to take advantage of up to six hours of free counseling with someone in your area, and the service is strictly confidential. The phone call to the hotline is the first step. Next, the ethics counsel can provide confidential advice regarding the implications trauma has on effective representation and whether an attorney may disclose particular information to a medical professional. Contact Joe Balkenbush at 405-416-7055 or ethicscounsel@okbar.org.

CONCLUSION

The dedication and intellectual pursuit that the practice of law demands is no small task; however, it is just as important to recognize that the practice of law requires that those within it take the steps necessary to protect themselves to not only ensure that the clients’ best interests can be met with effective advocacy, but to also ensure one’s own sustainability within the profession. Being aware of secondary trauma and how it can affect an attorney’s mental health can begin the conversation within the legal community so that attorneys impacted by trauma no longer feel isolated or the need to leave the profession entirely. It is important for attorneys to remember that being affected by a client’s case does not make them weak, it makes them human.

ABOUT THE AUTHORS

April Merrill is the lead attorney for Medical-Legal Partnership Initiatives for Legal Aid Services of Oklahoma Inc. She currently serves as a board member of the Community Service Council. She enjoys teaching for the Tulsa Community College Paralegal Program. Ms. Merrill is 2010 graduate of the TU College of Law. She previously served as a senior fellow with the Charles and Lynn Schusterman Family Foundation managing the Child Advocacy portfolio.

Sarah Young is a second-year law student at the TU College of Law. She is an Albert Schweitzer Fellow and CASA volunteer. She previously worked in special education as a teacher and consultant. She is a graduate of Northeastern State University and Cameron University.

1. Dr. Larry Richard and Tanya Hanson, What Can You Do with a Law Degree: A Lawyer’s Guide to Career Satisfaction Inside Outside & Around the Law.
2. Hallie Neuman Love, Lawyers Are at Risk for Secondary Traumatic Stress 8 (2017), wvjlap.org/wp-content/uploads/2017/07/SecondaryTrauma.pdf.
3. 18 Yael Fishman, Secondary Trauma in the Legal Professions, a Clinical Perspective 109 (2008).
4. Joseph Balkenbush, “Ethics and Lawyer Well-Being”, Okla. Bar Journal, December 2017, at 2419.
5. Hallie Neuman Love, Lawyers Are at Risk for Secondary Traumatic Stress 8 (2017), wvjlap.org/wp-content/uploads/2017/07/SecondaryTrauma.pdf.
6. 18 Yael Fishman, Secondary Trauma in the Legal Professions, a Clinical Perspective 107 (2008); Work and Compassion Fatigue, www.avma.org/ProfessionalDevelopment/PeerAndWellness/Pages/compassion-fatigue.aspx.
7. 18 Yael Fishman, Secondary Trauma in the Legal Professions, a Clinical Perspective 109 (2008).
8. Joseph Balkenbush, “Ethics and Lawyer Well-Being,” Okla. Bar Journal, December 2017, at 2420.
9. Hallie Neuman Love, Lawyers Are at Risk for Secondary Traumatic Stress 8 (2017), wvjlap.org/wp-content/uploads/2017/07/SecondaryTrauma.pdf.
10. Id.
11. Id.
12. 18 Yael Fishman, Secondary Trauma in the Legal Professions, a Clinical Perspective 108 (2008), for a discussion regarding how professionals may experience some of the same symptoms as those impacted by trauma.
13. Christina Rainville, Understanding Secondary Trauma: A Guide for Lawyers Working with Child Victims 133 (2015), www.americanbar.org/content/dam/aba/administrative/child_law/clp/vol34/sept15.authcheckdam.pdf.
14. Id.
15. Hallie Neuman Love, Lawyers Are at Risk for Secondary Traumatic Stress 8 (2017), wvjlap.org/wp-content/uploads/2017/07/SecondaryTrauma.pdf.
16. Id.
17. Christina Rainville, Understanding Secondary Trauma: A Guide for Lawyers Working with Child Victims 134 (2015), www.americanbar.org/content/dam/aba/administrative/child_law/clp/vol34/sept15.authcheckdam.pdf.
18. 18 Yael Fishman, Secondary Trauma in the Legal Professions, a Clinical Perspective 109 (2008).
19. Cf., Joseph Balkenbush, “Ethics and Lawyer Well-Being,” Okla. Bar Journal, December 2017, at 2420.
20. Oklahoma Rules of Professional Conduct: Preamble, Scope and Terminology, www.law.cornell.edu/ethics/ok/code/OK_CODE.HTM.
21. Oklahoma Rules of Professional Conduct: Rule 1.16 Declining or Terminating Representation, www.law.cornell.edu/ethics/ok/code/OK_CODE.HTM.
22. 18 Yael Fishman, Secondary Trauma in the Legal Professions, a Clinical Perspective 110 (2008).
23. Id. at 109.
24. Cf., AMA Code of Medical Ethics: Treating Self or Family, www.ama-assn.org/delivering-care/treating-self-or-family.
25. Hallie Neuman Love, Lawyers Are at Risk for Secondary Traumatic Stress 8 (2017), wvjlap.org/wp-content/uploads/2017/07/SecondaryTrauma.pdf., (arguing that attorneys who are exposed to the effects of secondary trauma without addressing the impact or treating it may experience incapacitation that forces them to stop working or leave the field of law).
26. Cf., Joseph Balkenbush, “Ethics and Lawyer Well-Being,” Okla. Bar Journal, December 2017, at 2420.

Originally published in the Oklahoma Bar Journal -- OBJ 89 pg. 18 (December 2018)