How Many Lawyers Has Your Firm Driven To The Great Legal Tragedy?

Lawyer suicide: the final option.  Robert Ambrogi called the suicide death of a highly respected lawyer The Economy’s Most Tragic Consequence. The ABA Journal featured the story as A Death in the Office. Law.com followed with a blog piece about another lawyer’s suicide in Wisconsin this past month.  While GP Solo author Mary Robinson writes this month that “”we are not tough enough on the depressed due to the great pain they inflict on people around them” and “the great harm they cause to clients.”

The public disdains lawyers, often eager to tell the latest malicious joke about them.  Clients hope to avoid the lawyers and their bills regardless of how dedicated a team of lawyers worked on the client’s matter.  Law firms want more hours and clients from their lawyers not less hours or happy employees.  But “they”, the group of lawyers who are ill with depression, have no one to protect them.  That is the great legal tragedy.

Is Lawyer Depression And Suicide Really A Problem?

A “1990 Johns Hopkins University study found lawyers were nearly four times as likely to suffer from depression as the average person.  Other studies have shown that lawyers are two to six times more likely to be clinically depressed than people in other lines of work.”  Mark Hansen, The Less Final Option.  Suicide rates among lawyers have risen dramatically.  The Illinois Lawyers Assistance Program reports a 9.2 percent increase of clients with psychological issues over last year, and a 363 percent increase since 2001-2002.  Id. Tennessee had nine lawyer suicides in an 18 month period between 2005 and 2006.  Id. Other state bars report averaging one lawyer suicide a month.  Id.

What Is The Cause?

The comments that followed Robert Ambrogi’s blog (The Economy’s Most Tragic Consequence)  blamed the suicide on big law, rainmaking and billable hours.  A few comments noted the reality of depression on the sufferer and its possible role in the lawyer’s decision to kill himself.  The ABA Journal and Ambrogi blamed the economy causing layoffs of rainmakers.  The lawyer’s history indicated he had struggled with depression in years past.

I submit that those persons seeking to explain the suicides and rampant depression among lawyers need to better understand the pressures that blew the lid off the boiling pot.  Of course, we cannot go back and ask the victims what was the precipitating event or the last straw.  And not every lawyer that bills long hours or is pressured to bring in clients is depressed and contemplating suicide.  But we can glean some interesting information from the daily news.

Lawyers can fall out of society’s norm and into depression in multiple ways, the job pressures being only one factor.  Relationships, happiness, lifestyle, genetic makeup or financial troubles are other stressors.  This blog focuses on the law firm environment; other blogs will address the other factors down the road.

What Is A Firm Supposed To Do With A Depressed Lawyer?

At a law firm, it could be that the root of unhappiness is due to the lack of rainmaking skills, or low hours/low profitability, or a firm that outgrew its workload and pink slips started appearing around the firm.  But illness, particularly depression, virtually guarantees that a lawyer cannot survive the demands of the law firm given the nature of the professional code of conduct, the cost of treating depression and the lawyer’s depression’s financial impact on the firm.

Depression is experienced by virtually everyone at some point in their lives.  Depression  can be of short term duration due to recovery from an illness, a tragedy involving a close friend or family, or a relationship or lifestyle issue.  Depression can also be of long-term duration due to an imbalance of chemicals in the brain requiring medicine and ongoing treatment over a period of time.

Regardless of duration, “lawyers who suffer from depression become overwhelmed by seemingly routine legal or administrative tasks; sometimes they literally are unable to bring themselves to look at files, to return phone calls, or to open mail.”  Mary Robinson, GPSOLO, October/November 2009, p. 33.  Depression can inhibit the lawyer’s ability to exert any rainmaking skills, to bill hours, to maintain a caseload or any timely contact with clients.

Law Firm Options

Regardless of the law firm size or whether the lawyer is a partner, an associate or in-house counsel, the ABA Model Rules of Professional Conduct Rule 5.1 impose a duty on partners and supervising lawyers to do something.  For all we know, this duty drove the decisions of the law firms that let lawyers go because of depression.

Rule 5.1, parts (a) and (b) impose on partners and supervising lawyers to oversee the conduct of lawyers within the firm or organization.  This Rule has broad sweeping language that could impose a duty (but not vicarious liability) on the partners to do almost anything when it learns that a lawyer has a medical problem.

Some BigLaw firms have employee assistance programs and help the employee work through their problems.  Others terminate the employee upon first notice of a problem having no desire to “carry him” or “supervise and oversee his work let alone one’s own caseload.  In short, the lawyer is viewed as a liability.  Some firms think clients will pull files should they learn of the illness so the firm’s act first and terminate the lawyer.  While other firms think their duty under Rule 5.1 (or its similar rule in their jurisdiction) is to conduct a full medical and psychological armchair investigation, despite having no medical training and the plethora of laws implemented at the federal and state level to protect an individual’s medical privacy.  One author maintains that the ADA does not offer refuge to the depressed lawyer and accommodations need not be made for the lawyer.  GPSOLO, p. 11.

The decision to fire the lawyer upon notice of depression is troubling.  This action assumes that no amount of time or treatment or oversight could solve what might be a temporary problem.  The consequences can be harsh though if a lawyer in the midst of depression must now struggle with a job loss.

The decision to conduct an armchair medical investigation is even more troubling because of the number of laws it treads upon and the lack of training by lawyers to conduct such a witch hunt.  Yet the Model Rules provide no guidance as to the extent to which a firm must proceed to ensure the client’s work is being performed timely and competently.  Must the firm get a doctor’s report (and violate HIPPA)?  Must the firm require the employee to see a psychiatrist?  Should the firm be privy to the results of the exam?

It strains credulity to believe the Model Rules contemplated a full blown medical analysis by lawyers in a firm thereby violating every law on employee privacy that one can think of.  Yet Rule 5.1 is not restrict in breadth or depth and can be used to destroy any lawyer’s career directly (through firing) or indirectly (leaking the medical information to the legal community).

Did Rule 5.1 Have Anything To Do With The Recent Tragedies?

It is not for me to say whether the recent suicides by the lawyers and judges were pushed by their firm’s carrying out Rule 5.1 in its harshest form and terminating them or whether inadequate billable hours, small caseload size or poor rainmaking skills was the final straw or something completely unrelated to the workplace.  But one can say that this Rule 5.1 overly broad statement of duty hands a law firm a convenient way to discard the very serious problem of a lawyer at risk rather than encourage the law firm to find a solution to help the lawyer.  Certainly any lawyer aware of the Rules would be loathe to disclose to his firm or friends his depression and its depth if the potential consequences are investigation or termination.  Keeping the problem silent also is not an acceptable answer.

Many people function on many types of jobs with anti-depressant treatment, just like many people function with other disabling illnesses that require daily medication: heart disease, cancer and diabetes to name a few.  The compassion shown in addressing those cases should be extended to lawyers before another one is pushed to the edge of the abyss.

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