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On Being a Happy, Healthy, and

Ethical Member of an Unhappy,

Unhealthy, and Unethical Profession

Patrick J. Schiltz*

I. THE WELL-BEING OF LAWYERS

A. Lawyers’ Poor Health

1. Depression

2. Anxiety and Other Mental Illness............. 876

3. Alcoholism and Drug Abuse

4. Divorce

5. Suicide

6. Physical Health

B. Lawyers’ Unhappiness

II. EXPLAINING THE POOR HEALTH AND

UNHAPPINESS OF LAWYERS

A. The Hours

B. The Money

C. The “Game”

III. THE ETHICS OF LAWYERS

A. Practicing Law Ethically

B. Big Firm Culture

C. Becoming Unethical

_________________________________________________________________

* Associate Professor of Law, Notre Dame Law School. I am grateful to Paul D.

Carrington, Mark Chopko, Roger C. Cramton, John S. Elson, Stephen Gillers, Geoffrey C.

Hazard, Jr., Douglas Laycock, Howard Lesnick, Sanford Levinson, Thomas D. Morgan, John Copeland Nagle, Michael Stokes Paulsen, Robert E. Rodes, Jr., Elizabeth R. Schiltz, Thomas L.

Shaffer, David A. Skeel, Jr., and Kent D. Syverud for their comments on earlier drafts of this Article, and to William L. Esser, John J. Laxague, Rosemarie K. Nixon, and Scott R. Williams for their research assistance. I am also grateful to the students enrolled in the Spring 1999 session of the “Religious Consciousness and Legal Thought and Practice” seminar at the University of Pennsylvania Law School for vetting this Article for me.

872 VANDERBILT LAW REVIEW [Vol. 52:871 IV. ON BEING A HAPPY, HEALTHY, AND ETHICAL LAWYER..... 920 A. “Big Picture” Advice

B. “Little Picture

–  –  –

Dear Law Student:

I have good news and bad news. The bad news is that the profession that you are about to enter is one of the most unhappy and unhealthy on the face of the earth—and, in the view of many, one of the most unethical. The good news is that you can join this profession and still be happy, healthy, and ethical. I am writing to tell you how.

–  –  –

Lawyers play an enormously important role in our society.1 “It is the lawyers who run our civilization for us—our governments, our business, our private lives.”2 Thus you might expect that a lot of people would be concerned about the physical and mental health of lawSee MARC GALANTER & THOMAS PALAY, TOURNAMENT OF LAWYERS: THE TRANSFORMATION OF THE BIG LAW FIRM 1 (1991); MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY 283GARY A. MUNNEKE, CAREERS IN LAW 5-7 (1997); A. Leon Higginbotham, Jr., The Life of the Law: Values, Commitment, and Craftsmanship, 100 HARV. L. REV. 795, 803-04 (1987).

2. FRED RODELL, WOE UNTO YOU, LAWYERS!, at 7 (1957).

1999] ON BEING HAPPY, HEALTHY, AND ETHICAL 873 yers. You would be wrong.3 Contrary to the old joke,4 scientists have not replaced laboratory rats with lawyers, and medical literature has little to say about the well-being of attorneys. At the same time, many law professors—at least those teaching at the fifty or so schools that consider themselves to be in the “Top Twenty”—do not care much about lawyers. Increasingly, faculties of elite schools and aspiring elite schools consist of professors who have not practiced law,5 who have little interest in teaching students to practice law,6 and who pay scant attention to the work of practicing lawyers.7 Even law professors like me—law professors who practiced law for several years, who love teaching, and who are intensely interested in the work of lawyers—often do not have the training or resources to conduct empirical research about the legal profession.8 As a result, legal scholarship also has little to say about the well-being of attorneys.9 If one looks hard enough, though, one can scratch up some information about the health and happiness of attorneys. And this information—although rather sparse and, in some cases, of limited value—strongly suggests that lawyers are in remarkably poor health and quite unhappy.

_________________________________________________________________

3. See Amiram Elwork & G. Andrew H. Benjamin, Lawyers in Distress, 23 J. PSYCHIATRY & L. 205, 206 (1995) (asserting that the health of lawyers has received “scant attention from scholars in either the legal or the mental health communities”).

4. Why are scientists replacing laboratory rats with lawyers? There are more lawyers than rats. Scientists can become emotionally attached to rats. And there are some things that rats will not do.

5. See Robert J. Borthwick & Jordan R. Schau, Gatekeepers of the Profession: An Empirical Profile of the Nation’s Law Professors, 25 U. MICH. J.L. REFORM 191, 220 (1991);

Patrick J. Schiltz, Legal Ethics in Decline: The Elite Law Firm, the Elite Law School, and the Moral Formation of the Novice Attorney, 82 MINN. L. REV. 705, 756-62 (1998).

6. See Talbot D’Alemberte, Keynote Address, in THE MACCRATE REPORT: BUILDING THE EDUCATIONAL CONTINUUM 4, 12 (Joan S. Howland & William H. Lindberg eds., 1994); Schiltz, supra note 5, at 754-56; Barbara Bennett Woodhouse, Mad Midwifery: Bringing Theory, Doctrine, and Practice to Life, 91 MICH. L. REV. 1977, 1993 (1993).





7. See MICHAEL J. KELLY, LIVES OF LAWYERS: JOURNEYS IN THE ORGANIZATIONS OF

PRACTICE 19 (1994); Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34, 35 (1992); Schiltz, supra note 5, at 762-71; Laurence H. Silberman, Will Lawyering Strangle Democratic Capitalism?: A Retrospective, 21 HARV. J.L.

& PUB. POL’Y 607, 616 (1998).

8. See Michael A. Livingston, Reinventing Tax Scholarship: Lawyers, Economists, and the Role of the Legal Academy, 83 CORNELL L. REV. 365, 400 (1998); Craig Allen Nard, Empirical Legal Scholarship: Reestablishing a Dialogue Between the Academy and Profession, 30 WAKE FOREST L. REV. 347, 368 (1995).

9. See James J. Alfini & Joseph N. Van Vooren, Is There a Solution to the Problem of Lawyer Stress? The Law School Perspective, 10 J.L. & HEALTH 61, 66 (1995-1996) (“[I]t may seem surprising that the legal academy has given so little attention to such an enormous problem in the legal profession. It becomes less surprising, however, when one considers how little attention law schools give to the current structure and operating realities of the legal profession itself.”).

874 VANDERBILT LAW REVIEW [Vol. 52:871

–  –  –

Lawyers seem to be among the most depressed people in America. In 1990, researchers affiliated with Johns Hopkins University studied the prevalence of major depressive disorder (“MDD”) across 104 occupations.10 They discovered that, although only about 3% to 5% of the general population suffers from MDD,11 the prevalence of MDD exceeds 10% in five occupations: data-entry keyers, computer equipment operators, typists, pre-kindergarten and special education teachers, and lawyers.12 When the results were adjusted for age, gender, education, and race/ethnic background to determine to what extent those in each occupation were more depressed than others who shared their most important sociodemographic traits,13 only three occupations were discovered to have statistically significant elevations of MDD: lawyers, pre-kindergarten and special education teachers, and secretaries. Lawyers topped the list, suffering from MDD at a rate 3.6 times higher than non-lawyers who shared their key sociodemographic traits.14 The researchers did not know whether lawyers were depressed because “persons at high risk for major depressive disorder” are attracted to the legal profession or because practicing law “causes or precipitates depression.”15 They just knew that, whatever the reason, lawyers were depressed.16 Other studies have produced similar results. A study of Washington lawyers found that “[c]ompared with the 3 to 9 percent of individuals in Western industrialized countries who suffer from depression, 19 percent of... Washington lawyers suffered from statistiSee William W. Eaton et al., Occupations and the Prevalence of Major Depressive Disorder, 32 J. OCCUPATIONAL MED. 1079 (1990).

11. See id. at 1081.

12. See id.

13. See id. at 1081-83.

14. See id. at 1083. Pre-kindergarten and special education teachers suffer from MDD at a rate 2.8 times higher than expected, while secretaries suffer from MDD at a rate 1.9 times higher than expected. See id. Thus, an attorney who drops off his child at pre-school on the way to work and greets his secretary as he arrives at the office can hit the “Depression Trifecta” before 9:00 a.m.

15. Id. at 1085.

16. See id.; see also AMIRAM ELWORK, STRESS MANAGEMENT FOR LAWYERS 15 (2d ed. 1997);

SOL M. LINOWITZ, THE BETRAYED PROFESSION: LAWYERING AT THE END OF THE TWENTIETH

CENTURY 242 (1994); BENJAMIN SELLS, THE SOUL OF THE LAW 99 (1994); Elwork & Benjamin, supra note 3, at 215.

1999] ON BEING HAPPY, HEALTHY, AND ETHICAL 875 cally significant elevated levels of depression.”17 A study of law students and practicing lawyers in Arizona discovered that when students enter law school, they suffer from depression at approximately the same rate as the general population.18 However, by the spring of the first year of law school, 32% of law students suffer from depression, and by the spring of the third year of law school, the figure escalates to an astonishing 40%.19 Two years after graduation, the rate of depression falls, but only to 17%, or roughly double the level of the general population.20 Another study, making use of the data generated by the Washington and Arizona studies, reported that while “the base rate of any affective disorder (which includes depression) is 8.5% for males and 14.1% for females,... the percentage of male lawyers... scoring above the clinical cutoff on the measure of depression is nearly 21% and for female lawyers 16%.”21 And finally, a study of North Carolina lawyers found that almost 37% reported being depressed and 42% lonely during the previous few weeks,22 and that 24% reported suffering symptoms of depression (such as appetite loss, insomnia, suicidal ideation, and extreme lethargy) at least three times per month during the previous year.23 _________________________________________________________________

17. G. Andrew H. Benjamin et al., The Prevalence of Depression, Alcohol Abuse, and Cocaine Abuse Among United States Lawyers, 13 INT’L J.L. & PSYCHIATRY 233, 240 (1990) (footnote omitted). By “statistically significant elevated levels of depression,” the researchers are referring to elevated scores on a self-report instrument known as the Brief Symptom Inventory (“BSI”). Id. at 237. According to the researchers, “[a] significant elevation of the BSI depression symptom (a score that exceeds two standard deviations above the normal population mean) is strongly correlated with clinical impairment, and suggests the need for specific treatment.” Id.

18. See id. at 234 (citing G. Andrew H. Benjamin et al., The Role of Legal Education in Producing Psychological Distress Among Law Students and Lawyers, 1986 AM. B. FOUND. RES.

J. 225, 246 [hereinafter Psychological Distress]).

19. See id. The Arizona study measured depression through use of the BSI, as well as three other standardized self-report instruments (the Beck Depression Inventory, Multiple Affect Adjective Checklist, and Hassles Scale). See Psychological Distress, supra note 18, at 228See Benjamin et al., supra note 17, at 234.

21. Connie J.A. Beck et al., Lawyer Distress: Alcohol-Related Problems and Other Psychological Concerns Among a Sample of Practicing Lawyers, 10 J.L. & HEALTH 1, 50 (1995footnote omitted). A subject was considered to be above the “clinical cutoff” if he or she scored more than two standard deviations above the mean of a normal population on the instruments used by those who conducted the Washington and Arizona studies. See id. at 3. At this point, the subject is “considered clinically distressed and needing treatment.” Id. at 3-4.

This “is not synonymous with a full-blown psychiatric diagnosis.” Id. at 49 n.200.

22. See ELWORK, supra note 16, at 14.

23. See NORTH CAROLINA BAR ASS’N, REPORT OF THE QUALITY OF LIFE TASK FORCE AND

RECOMMENDATIONS 4 (1991).

876 VANDERBILT LAW REVIEW [Vol. 52:871

2. Anxiety and Other Mental Illness

Depression is not the only emotional impairment that seems to be more prevalent among lawyers than among the general population.

The Arizona study also found elevated rates of anxiety, hostility, and paranoia among law students and lawyers.24 Over 25% of North Carolina lawyers reported that they had experienced physical symptoms of extreme anxiety (including trembling hands, racing hearts, clammy hands, and faintness) at least three times per month during the past year.25 And the Washington study found indicia of anxiety, social alienation and isolation, obsessive-compulsiveness, paranoid ideation, interpersonal sensitivity, phobic anxiety, and hostility in “alarming” rates among lawyers—rates many times the national

norms.26 For example:

[T]he base rate [in the general population] for obsessive-compulsiveness is 1.4yet nearly 21% of the male lawyers and 15% of the female lawyers in the study score above the clinical cutoff on the measure of obsessive-compulsiveness. The same pattern exists in regard to generalized anxiety disorder where the base rate is 4%, while 30% of the male lawyers and nearly 20% of the female lawyers in the study report scores above the clinical cutoff on the measure of anxiety.27 Needless to say, these studies “give[ ] substantial indication of a profession operating at extremely high levels of psychological distress.”28

–  –  –



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