By Jarrod F. Reich
This is adapted from an article that will be published later this year in volume 65 of the Villanova Law Review. The full version can also be read here on SSRN and contains a full set of Bluebook citations.
Gabriel MacConaill was a partner in the bankruptcy group of the international law firm Sidley Austin. Based in the firm’s Los Angeles office, “he felt he was doing the work of three people” and worked so hard on a bankruptcy filing that “he was in distress and . . . work[ed] himself to exhaustion”; however, he refused to go to the emergency room because, as he told his wife, “You know, if we go, this is the end of my career.” Then, on the morning of Sunday, October 14, 2018, he received an email to go to the office to “put something together.” He drove to his office, “taking his gun with him, and shot himself in the head in the sterile, concrete parking structure of his high-rise office building.” He was 42.
Despite calls for change, the pervasiveness of mental health and addiction issues among attorneys has persisted, if not increased.
In an open letter written one month after his death, his wife wrote simply: “‘Big Law’ killed my husband.”
In July 2015, Peter, a partner at the Silicon Valley office of Wilson Sonsini Goodrich & Rosati, “died a drug addict, felled by a systemic bacterial infection common to intravenous users.” He “lived in a state of heavy stress,” as he “obsessed about the competition, about his compensation, about the clients, their demands, and his fear of losing them. He loved the intellectual challenge of his work but hated the combative nature of the profession, because it was at odds with his own nature.” His last phone call was for work: “Vomiting, unable to sit up, slipping in and out of consciousness, [he] had managed, somehow, to dial into a conference call.” As he was being eulogized during his memorial service, “quite a few” of his colleagues “were bent over their phones, reading and tapping out emails. Their friend and colleague was dead, and yet they couldn’t stop working long enough to listen to what was being said about him.”
These two harrowing stories are hardly unique. Indeed, for more than 30 years, a significant number of studies, articles, and reports have demonstrated the prevalence of depression, anxiety, and addiction in the legal profession (see Part I below). Throughout this time, there have been just as many calls for the profession to make changes to promote, prioritize, and improve attorney well-being, particularly as many aspects of the current law firm model exacerbate mental health and addiction issues as well as overall lawyer unhappiness and dissatisfaction.
Despite these calls for change, the pervasiveness of mental health and addiction issues among attorneys has persisted, if not increased. Recognizing that this pervasiveness “can no longer be ignored,” in a 2017 report titled The Path to Lawyer Well-Being, the National Task Force on Lawyer Well-Being issued a call to action for the profession to “get serious about the substance use and mental health of ourselves and those around us.” Partially in response to the report, the profession has made some inroads in addressing these problems: some firms have taken proactive steps to improve their attorneys’ well-being, and as of February 2020, more than 130 law firms signed a pledge to support the American Bar Association’s campaign to address mental health and addiction issues in the profession—which the ABA hoped that “all legal employers” would sign by January 1, 2019.
Now is the time for firms to focus on the health and well-being of its attorneys.
Notwithstanding the recognized need and these calls for change, the report notes that the majority of firms have “turned a blind eye to widespread health problems” that pervade the profession. In this article, I argue that this “blind eye” exists in large part because firms have not had a financial incentive to address the problem. Law firms have increasingly moved from being “central players in a noble profession to a collection of profit-maximizing enterprises,” and this pursuit of profits has come at the well-being of the lawyers who generate them. As firms’ short-term goal of maximizing annual profits has become their principal long-term goal, lawyer distress has risen along with partner profits. Put differently, the commodification of the legal profession is an “unambiguous contributor” to the pervasiveness of lawyer distress. In addition, many law firms are also reticent to change in part because of the stigma surrounding mental health or addiction issues—all of which can affect the bottom line.
Since the moral- and humanitarian-based cases for firms to promote and prioritize attorney well-being in the literature have largely been ignored, this is the first academic article to make the business case to do so. This article argues that systemic changes designed to provide support and resources to firm attorneys will avoid costs associated with attorney mental health and addiction issues and, more important, create efficiencies that will increase their long-term financial stability and growth. Further, I argue that, given a confluence of societal, industrial, and generational factors, now is the time for firms to focus on the health and well-being of its attorneys.
A road map to this article
Part I of this article is an overview of the studies of the last three-plus decades demonstrating the prevalence of depression, anxiety, and other mental health concerns as well as substance abuse in the legal profession. It shows that lawyers have consistently suffered from these issues in much greater proportion than the general population. It also demonstrates that the profession has long understood the need to change the paradigm to support attorneys struggling with mental illness and addiction, but it has largely remained silent in the face of calls for such change.
Part II examines the personal and professional risk factors that negatively affect mental health and addiction as well as lawyer distress generally. In particular, it addresses whether and to what extent there exists a lawyer “personality” that is inherently predisposed to mental illness and addiction. Further, relying largely on self-determination theory and related research, I explore how both law school and law practice can contribute to and exacerbate lawyer mental illness, addiction, and mental distress.
Part III sets out why law firms have turned a “blind eye” to attorney well-being. Appeals to law firms—made largely on moral and humanitarian grounds—to provide support and resources to their lawyers and to make systemic changes to their practice largely have not resulted in meaningful change, and in this part I analyze why firms have had little incentive—both financial and cultural—to change their model.
Finally, Part IV makes the business case for law firms to promote and prioritize attorney well-being. In this part, I first analyze the different direct and indirect costs that firms face in failing to address lawyer mental health and addiction issues, from a rise in malpractice claims and sanctions to a decline in productivity to costs associated with high lawyer attrition. I also argue that now is the time for the law firm paradigm to shift to one that prioritizes attorney well-being.
Part I: Mental illness and addiction in the legal profession: An empirical overview
The first major studies identifying attorney mental health and substance abuse problems were conducted 30 years ago. These studies showed “significant elevated levels of depression” and a high percentage of “problem drinkers” both among professions and the general population. In the three decades since, not much has changed.
Among the largest changes was the development and expansion of Lawyer Assistance Programs, which provide support services to lawyers and legal professionals with mental health and substance abuse issues.
In 1990, Andrew Benjamin, Elaine Darling, and Bruce Sales published an empirical study about lawyers in the state of Washington who suffered from depression, alcoholism, and cocaine abuse. This study followed a 1986 study by Benjamin, Sales, and others of Arizona law students that found that “law students and lawyers suffered from depression at a rate twice to four times what would be expected in the general population.” The 1990 study found “no statistical differences” between the levels of depression among Arizona law students and young lawyers and Washington attorneys. Specifically, the Washington study found that 19 percent of lawyers “suffered from statistically significant elevated levels of depression,” with “most . . . experiencing suicidal ideation.” The study also found that 18 percent of lawyers were “problem drinkers”—approximately twice the alcohol abuse or dependency rates for adults in the United States. Depression rates remained the same across lawyers’ length of practice, but the rate of problem drinkers increased.
Also in 1990, researchers at Johns Hopkins University studied the rates of major depressive disorder among individuals across 104 professions. While between 3 and 5 percent of the adult population suffers from major depressive disorder, these researchers found that 10 percent of lawyers do so. Moreover, when adjusted for sex, race, education, and current employment, lawyers have the highest odds ratio for major depressive disorder among the professions studied—at a rate 3.6 times that of the general population.
Five years later, Benjamin, Sales, and Connie Beck published results of a study returning to the data and subjects of Benjamin and Sales’s 1990 study. Their in-depth analysis yielded findings that further supported Benjamin and Sales’s earlier studies as well as the Hopkins study. For instance, they concluded that 20 percent of female attorneys were above the clinical cutoff for anxiety and 16 percent were above the clinical cutoff for depression; male attorneys were above the clinical cutoffs for these conditions at 28 percent and 20 percent, respectively. They also concluded that approximately 30 percent of male lawyers scored above the clinical cutoff for interpersonal insensitivity, 25 percent for social alienation and isolation, 20 percent for obsessive-compulsiveness, 14 percent for paranoid ideation, 7 percent for phobic anxiety, and 7 percent for hostility.
As they observe, the percentage of lawyers scoring above the cutoffs for these psychological distress symptoms is “alarming,” particularly because “the expected percentage of people scoring above the benchmark [for each] is only 2.27%.” Further, these numbers do not change markedly over the course of an attorney’s career. Similarly, they report an “astounding number of lawyers [have] a high likelihood of developing alcohol-related problems,” with “[a]pproximately 70% of lawyers . . . likely to develop alcohol problems over their lifetime,” a figure that is both “consistent across all years” and more than five times greater than the 13.7 percent rate of lifetime prevalence of alcohol abuse or dependence for the general population. They conclude:
Psychological distress, in its many forms, is likely to affect newly practicing lawyers in a similar manner regardless of the state in which they practice. … In addition, throughout their career span, a large percentage of lawyers are experiencing a variety of significant psychological distress symptoms well beyond that expected in a normal population.
In response to the pervasiveness of mental distress and addiction in the legal profession, many practitioners and scholars have called for changes to the profession. Among the largest changes was the development and expansion of Lawyer Assistance Programs. These programs generally provide support services to lawyers and legal professionals with mental health and substance abuse issues. Currently, all 50 states and the District of Columbia have some sort of Lawyer Assistance Program, most of which were established in the last 30 years.
Notwithstanding these calls for change, change has been hard to come by. In the intervening years, articles and books have continued to highlight attorneys’ struggles with unhappiness and mental health and addiction issues, with one such article asking simply: “Why are lawyers killing themselves?”
Lawyers in their first 10 years of practice as well as those working in private practice have the highest rates of both problem drinking and depression.
For example, a comprehensive 2016 study confirmed that not much, if anything, has changed in a quarter-century. The study, conducted by Patrick R. Krill, Ryan Johnson, and Linda Albert for the American Bar Association Commission on Lawyer Assistance Programs, and the Hazelden Betty Ford Foundation (Krill Study) found numbers consistent with—and in some cases, more troubling than—the 1990 studies. The Krill Study surveyed nearly 13,000 practicing lawyers across the country and across varying demographics and types of legal practice. It found that “rates of problematic drinking” were “generally consistent” with those reported in Benjamin, Sales, and Beck’s 1990 study, with 20.6 percent to 36.4 percent of those surveyed qualifying as problem drinkers.
However, the Krill Study found “considerably higher rates of mental health distress” than those found in the earlier studies. Some takeaways from the study:
An additional 11.5 percent of participants reported suicidal thoughts at some point during their career. Moreover, lawyers in their first 10 years of practice as well as those working in private practice have the highest rates of both problem drinking and depression. In particular, the study found that 32 percent of lawyers younger than 30 are problem drinkers. These findings are not unique to American lawyers, with similar conclusions for Australian and Canadian lawyers.
In light of, among other things, the Krill Study and a similar 2016 study of law students in August 2016, entities within and outside the ABA created the National Task Force on Lawyer Well-Being (henceforth, “Task Force”). The Task Force recognized that the prevalence of mental health and addiction issues in the profession “are incompatible with a sustainable legal profession” and argued that “to maintain confidence in the profession, to meet the need for innovation in how we deliver legal services, to increase access to justice, and to reduce the level of toxicity that has allowed mental health and substance use disorders to fester among our colleagues, we have to act now.”
To that end, the Task Force issued a report in August 2017, concluding that “lawyer well-being issues can no longer be ignored.” The report, titled The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, issued a call to action for the profession to “get serious about the substance use and mental health of ourselves and those around us.” It provided three reasons to take action: (1) organizational effectiveness, (2) ethical integrity, and (3) humanitarian concerns. First, the report concludes that “lawyer well-being contributes to organizational success,” as “lawyer health is an important form of human capital that can provide a competitive advantage.” Second, the report concludes that “lawyer well-being influences ethics and professionalism,” and “40 to 70 percent of disciplinary proceedings and malpractice claims against lawyers involve substance use or depression, and often both.” Finally, the report concludes that “from a humanitarian perspective, promoting well-being is the right thing to do.”
These findings are not unique to American lawyers.
The Path to Lawyer Well-Being report goes on to make various recommendations for a series of “stakeholders”—judges, regulators, legal employers, law schools, bar associations, lawyers’ professional liability carriers, and lawyer assistance programs—to combat the “blind eye” the legal profession has turned to “widespread health problems.” Among the recommendations to all stakeholders include “buy-in and role modeling from the top-down” and taking steps to minimize the stigma of mental health and substance abuse disorders and to “facilitate . . . and encourage help-seeking behaviors.”
By its own admission, the report “makes a compelling case that the legal profession is at a crossroads,” as the “current course” of “widespread disregard for lawyer well-being and its effects is not sustainable.” It concludes that the profession has “ignored this state of affairs long enough” and that “as a profession, we have the capacity to face these challenges and create a better future for our lawyers” that is both “sustainable” and in pursuit of “the highest professional standards, business practices, and ethical ideals.”
Part II: Why this happens: Professional risk factors affecting mental health and addiction
There is no one answer for why lawyers disproportionately suffer from mental health and addiction problems compared with the general population. Yet the fact remains that they do. In this article not minimize the existence of biological, chemical, and genetic conditions that predispose individuals to mental illness or addiction. These cannot, and should not, be discounted or overlooked by individuals with such predispositions. Nevertheless, what I do argue, and what is beyond dispute, is that lawyer distress is systemic—there exists a strong correlation between the legal profession and lawyer distress that can no longer be ignored. Some of the potential systemic sources of attorney distress include (1) the possible existence of an inherent “lawyer personality,” (2) the law school experience, and (3) several aspects of law practice.
The “lawyer personality”
It has long been assumed that the legal profession is composed of individuals who are inherently predisposed to being “pessimistic, unhappy, and more prone to destructive addictions than other occupational groups.” Indeed, accounts of the “depressing character of legal study” date back to at least the middle ages. Yet the question of whether lawyers as a group are inherently prone to struggles with mental illness and addiction is far from settled, and the most recent research suggests that the stereotypical “lawyer personality” does not exist.
There is no one answer for why lawyers disproportionately suffer from mental health and addiction problems.
Early studies support the view that there are inherent qualities in individuals who are or seek to become successful lawyers. These studies conclude that “personality traits most common among lawyers are not those associated with happy people” and that lawyers exhibit “several personality traits which tend to intensify lawyers’ stress levels,” such as low self-esteem, egotism, inflexibility, workaholism, cynicism, and aggression. For instance, in an influential 2001 article, Martin Seligman, Paul Verkuil, and Terry Kang argue that lawyers are more successful when they have a “pessimistic ‘explanatory style,’” meaning they have a “tendency to interpret the causes of negative events in stable, global, and internal ways.” Also known as “prudence,” this perspective “requires caution, skepticism, and ‘reality-appreciation’” and “enables a good lawyer to see snares and catastrophes that might conceivably occur in any given transaction.” This ability to anticipate problems and “issue-spot” is an essential quality for effective lawyering.
Although this kind of pessimism is a quality of a good lawyer, as the Seligman, Verkuil, and Kang study notes, it also correlates to mental distress and is a major factor for depression. Lawyers who are pessimistic in practice often have that pessimism spill into their personal lives. For instance, lawyers who spend their working hours searching for, anticipating, and agonizing over problems tend to see the worst for themselves both inside and outside of the office. They may also have a more negative or pessimistic view of their work and their lives, and can focus on or even catastrophize problems in both. Accordingly, as Seligman, Verkuil, and Kang write, “Pessimism that might be adaptive in the profession also carries the risk of depression and anxiety in the lawyer’s personal life.”
Beyond this penchant for pessimism, Susan Daicoff has attempted to quantify the “lawyer personality.” In reviewing studies done on lawyer characteristics, she concluded that on the Myers-Briggs Type Indicator personality assessment measure, lawyers disproportionately represent the “thinking” rather than the “feeling” type when compared with the general population. In contrast to most of the population, a majority of lawyers also are introverts rather than extroverts; intuitors rather than sensors; and judgers rather than perceivers. Daicoff contends that the “definable personality” is one “conceptually coalesced into two groups of five traits: (a) a drive to achieve…; (b) dominance, aggression, competitiveness, and masculinity; (c) emphasis on rights and obligations over emotions, interpersonal harmony, and relationships; (d) materialistic, pragmatic values over altruistic goals; and (e) higher than normal psychological distress.”
Lawyers who are pessimistic in practice often have that pessimism spill into their personal lives.
Despite these findings, a 2014 study by Margaret Kern and Daniel Bowling challenges the notion that there is some inherent “lawyer personality.” They recognized that early studies support the vicious cycle of lawyers’ success coming from pessimism, which leads to unhappiness in life, but note that those studies have not been replicated. Their study revisited lawyer personalities by assessing 24 positive characteristics from the Values in Action Inventory of Strengths (VIA-IS), as the selected traits “were seen as relatively universal, fulfilling to the individual, morally valued by individuals and societies, trait-like, distinctive, and measurable.” The study measured the strengths of nearly 300 law students against a sample of U.S. lawyers and six samples of nonlawyers. They found that the law students surveyed “demonstrated a normal range of characteristics, similar to other intelligent, highly educated samples.” Consequently, they conclude that the “supposed presence of a negative ‘lawyer personality’ might be overstated.”
A significant body of scholarship demonstrates that law school poisons the well of prospective lawyers’ well-being. In a 1986 empirical study of law students in Arizona, Andrew Benjamin and his colleagues found that law students were as psychologically healthy as the general population entering law school, but within six months “average scores on all symptom indices changed from initial values within the normal range to scores two standard deviations above normative expectation.” These elevated symptoms “significantly worsened” throughout law school, and they “did not lessen significantly between the spring of third year and the next two years of legal practice.” They found that, depending on the group, 17 to 40 percent of the student subjects “suffered significant levels of depression,” with 20 to 45 percent reporting “other significantly elevated symptoms, including obsessive-compulsive, interpersonal sensitivity, anxiety, hostility, paranoid ideation, and psychoticism (social alienation and isolation).” These elevated symptoms were not dependent on any demographic or descriptive differences, including undergraduate or law school GPA; hours devoted to undergraduate or law school studies or to work after graduation; bar examination passage; or size of law practice.
In the mid-2000s, Lawrence Krieger and Kennon Sheldon authored two influential studies (one in 2004 and the other in 2007) on the negative effect law school has on the subjective well-being of law students. They based their research on the “self-determination theory of optimal motivation and human thriving” (SDT), which “focuses on the contextual and personality factors that cause positive and negative motivation, with corresponding positive and negative performance and subjective well-being (SWB) outcomes.” As they describe, there are three central tenets of SDT relevant here:
- All human beings “have certain basic psychological needs—to feel competent/effective, autonomous/authentic, and related/connectedness with others”—whose presence produce well-being, while their absence correlates to distress.
- An individual’s “values, goals, and motivations” form the basis of their behavior, and “intrinsic values and internal motivations are more predictive of well-being than their extrinsic or external counterparts.”
- Individuals who receive “autonomy support” from their supervisors, teachers, or mentors have an “enhance[d] . . . ability to perform maximally, fulfill their psychological needs, and experience well-being.”
SDT research posits that (1) why a person acts—for example, for internal satisfaction or external factors, (2) what a person seeks through their actions—for example, intrinsic goals such as personal growth and community or extrinsic goals such as fame and money, and (3) the level of autonomy support a person has from their superiors all have “significant consequences for [their] satisfaction and performance,” as well as their overall subjective well-being.
Law students suffer disproportionately high levels of distress and this distress correlates to law school itself.
In their 2004 study, Krieger and Sheldon found that law students enter law school with a positive subjective well-being compared with undergraduates. Yet, one year into law school, students suffered a decline in subjective well-being and an increase in physical and mental health problems. These declines in well-being and increases in health problems continued throughout law school. In particular, they found that these increases in mental and physical distress corresponded with decreases in positive affect and overall life satisfaction. They also corresponded with shifts in their reasons for becoming lawyers—from internal purposes (such as interest and meaning) to external ones (such as money and recognition)—as well as decreases in values of all kinds after the first year. Krieger and Sheldon conclude that students’ “endorsement of intrinsic values” declined over the first year, with a shift toward the extrinsic “appearance and image values.” In addition, students’ goals and motivations moved from the internal—“reasons of interest and enjoyment”—to the external, notably “pleasing or impressing others.” Strikingly, Krieger and Sheldon also found that this shift was not limited to the first year, as “neither the losses in SWB nor in relative intrinsic value orientation rebounded” during law school; in fact, during the second and third years of law school, all types of valuing decreased.
Krieger and Sheldon did find, however, that students who acted “for intrinsic and self-determined reasons” tended to “perform more persistently, flexibly, creatively, and effectively” and therefore attain a higher GPA. They do note, however, the “potential irony” to this finding: although such students with intrinsic motivations and values performed well academically, such high-performing students “tended to shift toward more lucrative, high-prestige career preferences.” And, as discussed below, the values associated with these positions “tend to contribute to decreased health, SWB, and career satisfaction over time.”
In their 2007 study, Krieger and Sheldon further investigated the negative effects of law school on students’ SWB. They add to their first study by examining the more nuanced components of SDT—the level of satisfaction of the students’ psychological needs for autonomy, competence, and relatedness to others—as well as the autonomy support students receive from faculty at two different schools, one whose faculty has a “traditional,” scholarly focus and one whose faculty is “less traditional” and focuses more on teaching and practical skills for students. As is relevant here, the study confirmed the findings of their first study, particularly that students’ SWB and internal motivation decreased and their distress increased throughout law school. In particular, they found that these negative outcomes resulted from decreases in students’ satisfaction in their needs for autonomy, competence, and relatedness since entering law school.
Aspects of the profession that inhibit psychological needs can contribute to lawyer mental health and addiction issues.
Thus, these studies, among others, have demonstrated that law students suffer disproportionately high levels of distress and suggest that this distress correlates to law school itself. These elevated levels of mental health and addiction issues among law students remain high today. In 2014, Jerome Organ, David Jaffe, and Katherine Bender surveyed more than 3,300 students across 15 law schools to assess mental health and substance abuse issues among students as well as whether and to what extent students seek help for these issues. They found that 17 percent of respondents screened positive for depression, 37 percent screened positive for anxiety, 43 percent reported binge-drinking at least once in the prior two weeks, 25 percent were at risk for alcoholism, and 35 percent used illicit street drugs or prescription drugs without a prescription. In addition, a 2014 nonempirically validated survey of students at Yale Law School found that up to 70 percent of its students suffer from some form of self-identified mental distress while in school.
In 2015, Krieger and Sheldon conducted an empirical study of nearly 8,000 lawyers throughout the United States across all areas of practice to determine the contributors to lawyer well-being and life satisfaction as well as distress and dissatisfaction. In designing their study, they measured the SWB metrics (need satisfaction, values, and motivations) as well as depression and alcohol consumption. Consistent with their studies of law students, they found that internal values and motivations—the very factors that erode during law school—and psychological need satisfaction were most strongly predictive of lawyer well-being, whereas the “external factors emphasized in law school and by many legal employers” were, “at best, only modestly associated with lawyer well-being.” The strongest predictors of well-being were the psychological needs of autonomy, relatedness to others, and competence, as well as motivation. Krieger and Sheldon determined that the correlations between psychological needs and lawyer well-being were “exceptionally strong” and that these needs were strongly inversely correlated with depression as well as inversely correlated with quantity of drinking.
Accordingly, aspects of the profession that inhibit these psychological needs, and that foster external values and motivations, can contribute to lawyer mental health and addiction issues. While a myriad of such aspects exist, three critical areas are (1) lack of autonomy, (2) lack of relatedness, and (3) extrinsic values and motivations.
1. Lack of autonomy
Autonomy is one of the key metrics for attorney happiness, and its absence in “high-pressure, low decision latitude” positions of law firm associates renders associates “likely candidates for negative health effects,” such as depression. While many areas of the profession engender a lack of autonomy, two critical ones are the reliance on the billable hour and the low decision latitude of junior lawyers in particular.
Reliance on the billable hour
The prevailing business model for law firms over the past several decades is the billable hour, by which they charge their clients an hourly rate for each hour each attorney works. As law firms have commodified over the past 35 years, hour expectations have increased. For instance, in the early 1980s, few law firms had minimum billable-hour requirements, but in recent years “most large law firms expressly set them at 1,900 to 2,000,” with some firms expecting much more (for more, see here and here).
As one lawyer put it, billable hours are “the biggest reason lawyers are so depressed.”
Billable hours as a benchmark of productivity, however, is counterintuitive. As one study notes, “The behavior that maximizes hours is antithetical to true productivity.” While productivity generally is the “relative measure of the efficiency of a person . . . in converting inputs into useful outputs,” the general benchmark of lawyer productivity—the total time spent on a task without regard to the quality or utility of the work product—is a measure of anything but productivity. Indeed, more hours spent on a task is an indication of unproductivity, as workers are less productive and efficient the longer they toil on a task. Nevertheless, despite the “productivity” misnomer, the billable-hour system rewards unproductivity and inefficiency.
Notwithstanding this inherent inefficiency, billable hours are the standard measure of work, and law firm associates understand that their futures depend on this measure of output, and their success at the firm requires them to bill much more than the firm’s stated billable-hour target. Moreover, an attorney must “work” many more hours to hit their billable target. For instance, Yale Law School calculated that an attorney must be at work 2,420 hours to bill 1,800 and that 2,200 billable hours requires an attorney be “at work” 3,048 hours. It is no wonder, then, as the ABA’s Commission on Women in the Profession warned nearly 20 years ago, that “excessive workloads are a leading cause of lawyers’ disproportionately high rates of reproductive dysfunction, stress, substance abuse, and mental health difficulties.” As one lawyer put it, billable hours are “the biggest reason lawyers are so depressed.”
Low decision latitude
Beyond the number of hours worked, many lawyers—particularly junior lawyers—experience distress because they lack autonomy in the work they do. Associates have little say over their work, limited interaction with senior partners, and little to no client contact. With this lack of autonomy also comes isolation, as firms have little “mentoring, training, or firm citizenship behaviors,” and there is little institutional incentive to engage in them. Consequently, lawyers feel alienated from their work and cannot see how it matters beyond as a billable deliverable. As an illustration, in one survey of associates at an international law firm, 86 percent said they have “noninteresting work,” 88 percent said they do not have interaction with partners, and 77 percent said they are not “being shown appreciation for their work by senior associates or partners.” Junior lawyers have expressed “angst over pressures to bill exorbitant amounts of money to clients to whom they felt no meaningful connection.” They also have expressed frustration over the conflict between their “presumed role as autonomous professionals” who establish and maintain client relationships and their “more subservient role as employees” who exist to generate partner revenue.
The practice of law is inherently adversarial, which itself is inherently stressful by nature.
In addition, with advances in technology, lawyers are increasingly on-demand around the clock. Lawyers are expected to be reachable at all times and in effect are constantly on call. With this, lawyers have less autonomy support—that is, superiors do not acknowledge the lawyers’ perspective or preferences, or provide them with meaningful choices about when and where to work and how to balance their lives. While technology makes it possible for lawyers to work from home, it also makes it virtually impossible not to work from home; consequently, as Stanford law professor and author Deborah Rhode puts it, “Personal lives get lost in the shuffle.”
2. Lack of relatedness: adversarial system
The practice of law is inherently adversarial, which itself is inherently stressful by nature. To thrive in the adversarial system, lawyers are trained to be competitive and aggressive because the goal is to “win.” Such training is “fueled by negative emotions,” and as a consequence “can be a source of lawyer demoralization, even if it fulfills a social function.” Consequently, when the practice of law is reduced to many zero-sum disputes, it can produce “predictable emotional consequences for the practitioner, who will be anxious, angry, and sad much of [their] professional life.” Moreover, dealing with difficult opponents, clients, and colleagues can often leave lawyers feeling “emotionally shattered.”
3. Extrinsic values and motivations
Lawyers often enter a firm culture “that is hostile to the values [they] have.” As Judge (then-professor) Patrick Schiltz observed: “The system does not want you to apply the same values in the workplace that you do outside of work . . . ; it wants you to replace those values with the system’s values. The system is obsessed with money, and it wants you to be, too. The system wants you—it needs you—to play the game.” As a result of this “game,” law is no longer seen by many as a calling but as “just a job with ridiculous hours, stress, and unpaid law school debt” and a primary focus on generating revenue for the firm. This “loss of purpose beyond making money” contributes greatly to lawyer dissatisfaction, and it should come as no surprise that along with well-being, lawyers believe legal professionalism is in decline as well. As a consequence, there has been a call for a return to more-traditional notions of law practice, one that prioritizes integrity, civility, and community—to “re-discover why they became lawyers in the first place” and rededicate themselves to the intrinsic goals and motivations that initially led them to law school in the hopes of creating a “happier, healthier, and more ethical profession.”
Part III: Ignoring the moral case for lawyer well-being
Notwithstanding the existence and the profession’s knowledge of the widespread prevalence of attorney mental health and addiction issues, as well as some obvious costs associated with them, law firms (and the profession at large) have ignored the pleas for change. These pleas have largely rested on moral grounds. Yet they have gone unheeded primarily for two reasons: (1) firms caring primarily about their bottom lines and (2) the stigma associated with mental health and addiction issues, as well as other barriers to treatment.
The profit-centered practice: Commodification of law firms
Over the past 30-plus years, firms have moved from the idea of the “noble profession” and toward the profit-maximizing “business model” dominating private practice today. As a result of the American Lawyer first publishing its annual list of firms’ revenues and profits per partner in 1985, attorneys were able to discover how much their colleagues were making elsewhere, and earning a high spot on the Am Law 100 (firms with the top 100 revenues nationwide) was a coveted honor. In response, firms adopted management techniques aimed at moving them up in the annual rankings, with total gross revenue for Am Law 100 firms having gone from $7 billion in 1985 to $71 billion in 2010—a 9.71 percent compound annual growth rate—to $98.75 billion in 2018. Indeed, as Harper notes, “Managing partners admit publicly that they run their firms to maximize instant profits for relatively few”—the partners. To that end, their practices have been successful: while in 1985 the average profits per partner for the firms on the inaugural Am Law 50 list was $300,000, that figure for the top 50 firms in the Am Law 100 had risen to $1.6 million in 2011 and $2.54 million in 2018.
Partner profits are maximized through the so-called Cravath model, which focuses on high leverage, high hourly rates, and high billable hours. Taking each in turn, first, since the creation of the Am Law 100, leverage ratios have grown considerably. Between 1985 and 2010, the average leverage ratio for the top 50 Am Law 100 firms doubled from 1.76 to 3.54, and rose to 4.47 in 2018 with, as noted above, the average profits per equity partner reaching $2.54 million. Second, with leverage increases, firms’ hourly rates have also risen steadily both before and after the Great Recession of the late 2000s, with many firms raising their rates at a rate of 5 percent after the Recession, and the top 12 firms raising rates more than 7 percent. And finally, in the context of all this, billable-hour expectations have increased from no minimum billable-hour requirements in the early 1980s to at or above 2,000 hours today.
Pleas for change have largely rested on moral grounds.
Put together, a firm achieves its success—maximizing revenue and profits per partner—by hiring large classes of associates each year and requiring them to work long hours for the years preceding their eligibility for partnership. This model not only keeps equity partner wealth growing by the continuous influx of new junior associates but also leads to significant attrition such that few associates last long enough even to be considered for equity partner. As firms have adopted the Cravath model, they have reinvented themselves as profit-generating businesses by which only a few partners at the top truly benefit. Even though firms have produced considerable revenue, partners are not content with their existing wealth—they often think they should be making more money. Consequently, firms’ short-run focus on the maximization of annual profits has also become their “most important long-run goal.”
As partner profits and firm revenue have increased, so too has lawyer distress and dissatisfaction. While firms and their equity partners have achieved staggering wealth, it has come at considerable costs as lawyer mental health and addiction issues have become pervasive. The added income (as well as the client expectations arising from higher billing rates) brings an assumed obligation to work longer hours, often at the expense of lawyers’ health and personal lives. In other words, as set out above, law firms in general are undermining their attorneys’ internal values and motivations that foster subjective well-being in favor of prioritizing the external values and motivations that correlate to emotional distress.
Since money—profit generation and maximization—is at the heart of much of the distress and dissatisfaction within the profession, the answer to address such distress and dissatisfaction is not to provide additional financial incentives. Studies abound demonstrating that money, at a certain level below the median lawyer salary, does not increase happiness. Indeed, as a general matter, even though GDP has tripled over the last 50 years, “life satisfaction in the United States has been flat” during that time, with depression rates “increas[ing] tenfold” and anxiety rates also increasing. Nevertheless, firms have done just that: they have responded in recent years to increased lawyer distress, dissatisfaction, and attrition by increasing salary. This has continued even in the wake of the Krill Study and the ABA’s Path to Lawyer Well-Being report—in summer 2018, many firms began to raise their starting salary for a first-year associate to $190,000 (if not higher), with an eighth-year associate’s salary far exceeding $300,000.
Stigma and barriers to treatment
Although awareness and understanding of mental illness has increased in recent years, it is still not often treated legitimately or seriously “either by businesses, by the health care system, or by society.” This is true in the legal profession, in which “mental health ‘is not talked about openly’” and for years has been kept “underground.”
The profession recognizes that this stigma exists. A 2018 survey of managing partners and human resources directors at Am Law 200 law firms revealed that stigma associated with mental illness and substance abuse is prevalent in the profession.
The stigma pervades the profession in a variety of ways. First, there is fear that attorneys struggling with mental health or addiction disorders are incompetent, incapable, or undesirable. This is succinctly captured by the comments of the chairman of an Am Law 100 law firm, who expressed reticence to follow other firms in having an onsite psychologist because of the fear that “our competitors will say we have crazy lawyers.”
Second, the overwhelming majority of state bars ask questions relating to applicants’ mental health or substance use. Many states have historically asked bar applicants whether they had any history of mental health treatment. Even after a 2014 Department of Justice settlement with the Louisiana Supreme Court in which the state agreed to remove questions about an applicant’s mental health history from its bar application, several states still ask whether applicants have any such history. As of March 2020, out of the 50 states, the District of Columbia, Guam, Northern Mariana Islands, Puerto Rico, and the Virgin Islands, all but nine ask some question related to the bar applicant’s mental health or substance use. In particular, 28 ask questions about the applicant’s current mental health or substance abuse, with an additional nine asking about the applicant’s past as well as current mental health or substance abuse. Four states ask questions regarding past and current substance use but only current mental health issues. Two states have questions about current substance abuse but do not have any questions regarding mental health, and an additional state asks about substance abuse treatment but not about mental health. Finally, two states ask about past and current instances of mental illness but only current instances of substance abuse.
As one concrete example, the Michigan Bar asks the following questions of its applicants:
Have you ever used, or been addicted to or dependent upon, intoxicating liquor or narcotic or other drug substances . . . [or] have you ever had, been treated or counseled for, or refused treatment or counseling for, a mental, emotional, or nervous condition which permanently, presently or chronically impairs or distorts your judgment, behavior, capacity to recognize reality or ability to cope with ordinary demands of life[; . . . or] which permanently, presently or chronically impairs your ability to exercise such responsibilities as being candid and truthful, handling funds, meeting deadlines, or otherwise representing the interest of others?
It is no surprise, then, that lawyers are reticent to seek treatment. As the Krill Study notes, lawyers with mental health and addiction issues have “pervasive fears surrounding their reputation” that prevent them from availing themselves of the help they need. The two most common barriers for treatment for substance abuse are not wanting others to find out they needed help and concerns regarding privacy or confidentiality. The statistics demonstrate that these are real barriers to meaningful treatment (see Figure 3).
Part IV: The business case for promoting and prioritizing lawyer well-being
Calls have been made to humanize the legal profession for decades. Throughout most of that time, however, as the Path to Lawyer Well-Being report acknowledged, the profession at large has generally “turned a blind eye” to the pervasiveness of mental health and addiction issues among its members and has not done enough to address it. As discussed above, many aspects of the law firm model negatively impact lawyer subjective well-being, which inversely correlates to depression and mental distress, with law firms and the profession often ignoring the moral case for promoting lawyer well-being because they have not had the financial incentives to change the existing law firm model.
In this part, I demonstrate how and why it is in law firms’ business interest to promote and prioritize its lawyers’ well-being by (1) arguing that firms incur significant direct and indirect costs related to untreated lawyer mental health and addiction issues, (2) summarizing some of the initial steps taken by firms in recent years to begin to acknowledge and address lawyer well-being issues, and (3) arguing that while current efforts are important first steps, the time is ripe for firms to benefit finally from enacting lasting and meaningful change to promote and prioritize lawyer well-being.
The costs of undermining lawyer well-being
All professions incur significant costs due to untreated employee mental health and addiction issues. Mental health disorders are by far the most burdensome illnesses to U.S. employers—costing more than $200 billion each year—well exceeding the cost burden of heart disease, cancer, stroke, and obesity. Further, the cost of alcohol abuse in the United States is $249 billion, with 72 percent of that total cost—or more than $179 billion—resulting from losses in workplace productivity. As recognized by the World Health Organization, the “consequences of mental health problems in the workplace” include, among other things, poor work performance (including “reduction in productivity and output,” “increase in error rates,” and “poor decision-making”) as well as an “increase in disciplinary problems,” absenteeism, as well as “loss of motivation and commitment, . . . burnout [and] diminishing returns,” and turnover. That is no different in law firms, where the costs that firms experience due to untreated lawyer mental health and addiction issues include (1) lawyer discipline actions, (2) absenteeism and “presenteeism,” and (3) high attrition. Each is discussed in turn below.
1. Lawyer discipline: Malpractice and sanctions
There can be no question that attorneys who have untreated mental health or addiction disorders can engage in conduct that gives rise to attorney discipline or malpractice actions. For instance, according to the ABA’s Path to Lawyer Well-Being report, between 40 and 70 percent of disciplinary proceedings and malpractice claims against lawyers involve substance use, depression, or both. A separate ABA survey in New York and California determined that “50 to 70 percent of all disciplinary cases involved alcoholism.” Other states, including Illinois and Indiana, reporting similar percentages.
2. Absenteeism and presenteeism
In addition to the direct costs of health care and, for lawyers, malpractice and sanctions, firms suffer indirect costs from attorneys struggling with mental health issues. According to one study, businesses suffer more than $102 billion in indirect costs annually due to the absenteeism and presenteeism of its depressed employees. Absenteeism is the amount of work (in hours or days) employees lose due to illness or otherwise being absent from work. Presenteeism, as the name suggests, is the amount of work employees lose while at work because they are unproductive or underproductive. Mental health and substance abuse issues affect both.
Indeed, depression substantially reduces an employee’s ability to work, as it both increases absenteeism and reduces productivity while at work. According to a recent study, depression doubles the annual sickness days among employees and results in 2.3 days per month of lost productivity. Another study found that employees with mental illness reported losing between 4.3 and 5.5 days of productive work in the prior 39 days. On average, workers with depression have 3.7 times more unproductive time at work per week than those without depression.
Sleep habits are important and modifiable risk factors to help prevent depression or achieve and maintain depression remission.
The cost of absenteeism and presenteeism to employers can be monetized. For example, a 2003 study found that worker absenteeism and presenteeism due to depression resulted in costs of $44 billion in 2002 dollars to employers. According to another study, 71 percent of employer expenditures on employee mental health issues are for lost productivity due to presenteeism.
Moreover, the combination of long hours and all-day availability invariably leads to a lack of sleep—a 2005 survey found that 35.7 percent of attorneys reported sleeping an average of five to six hours per night and 3 percent reported sleeping an average of fewer than five hours per night. Not only does fatigue compromise effectiveness, but sustained lack of sleep both leads to cognitive impairment and can lead to or exacerbate depression. With respect to the former, fatigue causes “loss of cognitive skill” including “diminished attention, working memory capacity, executive function, quantitative skills, logical reasoning ability, mood, and both fine and gross motor skills.” Indeed, according to the same 2005 study, a person who averages four hours of sleep a night for four or five nights will be as cognitively impaired as someone who is legally intoxicated or has been awake for 24 straight hours. Within 10 days, the level of impairment is the same as going 48 straight hours without sleep, which significantly impedes judgment, interferes with problem solving, and delays reaction times.
With respect to the latter, lack of sleep is a “major risk factor in the onset, recurrence, chronicity, and severity” of major depressive episodes. Accordingly, sleep habits are important and modifiable risk factors to help prevent depression or achieve and maintain depression remission. Given law firms’ reliance on the billable hour as the measure of both lawyer productivity and firm profitability, presenteeism could be seen as a way to maximize profits—after all, a lawyer who can bill more for a task will make more for the firm. However, as discussed below, clients are demanding firms increase efficiency—in both their services and the methods for which they bill them—thus making presenteeism costly for firms.
3. Replacement costs and high attrition
Mental health and addiction issues can contribute to lawyer attrition. In general, attrition rates among lawyers are high. According to NALP’s Update on Associate Attrition, in 2016, law firms lost an average of 16 percent of associates, and generally 44 percent of associates depart within three years of being hired and 75 percent depart within five years. Moreover, a 2016 survey found that 40 percent of attorneys surveyed were “likely” or “very likely” to be looking for a new job within the next 12 months. According to one estimate, the cost of replacing a departing associate ranges from $200,000 to $500,000, or roughly one-and-a-half to two times the annual salary of that lawyer. This cost—which could include advertising, recruiter’s time and salary, interviewing expenses, and training—does not account for implicit costs. Such costs, including lost productivity time, covering the work of the departing lawyer, and disrupted intrafirm and client relationships, “can dwarf the explicit expenses.” Thus, taking the midpoint and ignoring the implicit cost of attrition, associate attrition costs a 100-lawyer firm $5.6 million and a 500-lawyer firm $28 million.
Incremental efforts to address lawyer well-being
In the wake of the ABA’s National Task Force on Lawyer Well-Being’s 2017 call to action, some law firms and other legal employers have begun to at least recognize the mental health and addiction issues in the profession, and some have taken incremental steps to promote the well-being of their attorneys. While first steps are helpful toward addressing the crisis, there is still a long way for the profession to go to enact meaningful and lasting change.
As an initial step, some firms have at least begun to acknowledge that mental health and addiction problems exist in the profession. A 2018 ALM survey of managing partners and human resources officials at Am Law 200 law firms sheds light on these major law firm leaders think about mental health and substance abuse.
These firms recognize that their cultures contribute to these problems: when asked to rank the “causes of substance abuse and mental health problems in the law firm environment,” 79 percent of respondents listed “stress and workload” as the principle cause.
As an additional step, in September 2018 the ABA launched a campaign seeking to “raise awareness, facilitate a reduction in the incidence of problematic substance use and mental health distress and improve lawyer well-being.” To that end, the ABA developed a “seven-point framework for building a better future” for lawyer well-being and requested that firms sign a pledge of support for the ABA’s campaign. The pledge reads:
Recognizing that substance use and mental health problems represent a significant challenge for the legal profession, and acknowledging that more can and should be done to improve the health and well-being of lawyers, we the attorneys of [FIRM] hereby pledge our support for this innovative campaign and will work to adopt and prioritize its seven-point framework for building a better future.
Thirteen law firms initially signed the pledge. The ABA called upon “all legal employers” to take the pledge by January 1, 2019. As of the end of February 2020, 131 law firms—and 49 other organizations, such as companies and law schools—had done so.
Firms have begun to take concrete steps to address mental health and addiction issues, with some even predating the ABA’s formal call to action in its Path to Lawyer Well-Being report. These programs include continuing education courses, visiting speakers, online resources, and social opportunities promoting healthy lifestyles, as well as employee assistance programs and direct access to professional services. Since 2016, Kirkland & Ellis has offered yoga, meditation, and wellness training to its lawyers. In 2017, the New York and Washington, D.C., offices of Hogan Lovells started offering onsite psychologists to its employees; also in 2017, Akin Gump Strauss Hauer & Feld began offering its attorneys the services of onsite behavioral assistance counselors as part of its overall Be Well program, which it started the year before. Further, in 2019, Morgan Lewis launched an employee well-being program titled ML Well and created a director of employee well-being position.
Associate attrition costs a 100-lawyer firm $5.6 million and a 500-lawyer firm $28 million.
Beyond law firms themselves, state bars have taken action to eliminate questions on bar applications relating to an applicant’s mental health history. In February 2019, the Conference of Chief Justices, in recognition that questions about mental health history, diagnoses, or treatment are “unduly intrusive” and “likely to deter individuals from seeking mental health counseling or treatment,” passed a resolution urging state and territorial bar authorities to eliminate such questions from bar applications. The Conference resolved that it is reasonable to ask about an applicant’s mental health history “only . . . if the applicant has engaged in conduct or behavior and a mental health condition has been offered or shown to be an explanation for such conduct or behavior.” Consistent with the Conference’s resolution, in 2019, three states—Connecticut, Virginia, and Wisconsin—removed questions relating to applicants’ mental health history except when offered as a defense to conduct. Further, California and New York began examining whether they should remove such questions from their respective bar applications. As a consequence of these examinations, in July 2019 California enacted legislation prohibiting its state bar from seeking applicants’ mental health records beginning in January 1, 2020, and on March 1, 2020, New York Court of Appeals chief judge Janet DiFiore announced that mental health–related questions would be removed from bar applications effective immediately.
These pioneering steps are a helpful—and much needed—start to addressing lawyer mental health and addiction issues and well-being issues more generally. However, more firms and legal employers need to take action to enable meaningful, professionwide change. And, of the efforts currently being made by firms, there is some concern that, however well-meaning, they “lack the teeth to address the toughest of the issues” or are “little more than window dressing—a way for firms to check a box and show they are making a difference while avoiding the more complex process of a true reckoning.” As one associate put it, “The fixes being offered [by firms] are like a Band-Aid over a bullet wound.”
Indeed, a recent ALM study demonstrates that more work needs to be done.
Nevertheless, it would be counterproductive to reject this progress as less than the complete culture change or paradigm shift needed to address attorney mental health and addiction issues in meaningful ways. Incremental progress could allow the profession to build the bridge toward the systemic changes the profession needs. However, those systemic changes needed may come about more quickly if firms recognize not just the social good in prioritizing their attorneys’ well-being (which has long been one of the principal justifications in calls for systemic change) but the benefits that will inure to the firms’ bottom lines and profit margins. In the next section, I explain why the time is right for these systemic changes and why it is in firms’ financial interests to make them.
The financial benefits of lasting and meaningful change
The time is right for firms to prioritize lawyer well-being in part because we are at a tipping point in mental health awareness. While stigma about mental health certainly still exists—particularly in law firms—people involved in entertainment, sports, and politics have all raised awareness of mental health and addiction issues by coming forward to share stories of their personal struggles. Further, many other industries have taken steps to prioritize mental health. And, while “law firms remain 20 years behind corporate America when it comes to taking measures to improve mental health,” it is in firms’ interest to catch up to other professions and industries as prioritizing attorney well-being will help firms recruit the best talent.
More firms and legal employers need to take action to enable meaningful, professionwide change.
As noted above, the profession has made progress, and both recognizing the problems and taking incremental steps to address them are positive steps. This should be acknowledged and applauded. But making lasting, meaningful change in the profession requires a shift in the paradigm within which firms operate at both the organizational and professionwide levels. After all, as one law firm consultant observed, “The mixed messages sent when a firm says ‘go use our meditation room, but make sure you bill 2,000 hours or you won’t get your bonus’ need a broader fix that may require more people in the room than those focused purely on mental health.” As the ABA recognized in The Path to Lawyer Well-Being report, “Broad-scale change requires buy-in and role modeling from top leadership.” That buy-in from firm leadership will not come unless and until that leadership sees a potential return on such an investment.
As explained above, law firms and legal employers experience costs when lawyer mental health and addiction issues are unaddressed. A number of interventions can significantly lessen the burden of depression or anxiety in the workplace, and specifically work-related interventions can have a positive role in maintaining mental health and facilitating recovery from depression or anxiety. Primary and secondary prevention approaches demonstrate “either moderate or strong efficacy in terms of reducing symptom severity.” Thus, workplace interventions and treatment initiatives can help obviate the costs discussed above. Moreover, these interventions lead to reductions in health care costs (and therefore insurance premiums). The costs associated with promoting wellness are significantly outweighed by the financial benefits. According to one study, for every dollar a company spends on employee wellness programs, medical costs fall by $3.27 and increased costs attributed to employee absenteeism fall by $2.73. Further, more generally, a 2016 study estimated that every dollar spent to “scale up” treatment for mental illness between 2016 and 2030 within the 36 largest nations will yield $4 in increased productivity and the ability to work.
In addition to these financial savings, healthier workers are more productive, and prioritizing attorney well-being will likely help with attorney retention and recruitment. This is especially true now, with the growth of alternative-fee structures as opposed to traditional hourly-fee structures and the increasing importance millennial and now Generation Z lawyers and law students place on mental health and work-life balance.
As set forth below, firms that prioritize attorney health and well-being similarly will see the indirect benefits of (1) better performance from their attorneys and staff, (2) better retention, and (3) better yield of incoming attorneys through recruitment.
1. Performance: Client demands for efficiency
Mental health and addiction disorders result in increased absenteeism and presenteeism. Indeed, the stress faced by lawyers results not only in a decline in well-being and rise in anxiety, panic attacks, depression, substance abuse, and suicide but also in diminished cognitive capacity. It is no surprise, then, that treatment for depression “significantly improve[s] productivity” and improves absenteeism, and substance abuse treatment similarly greatly reduces both presenteeism and absenteeism. Consequently, as a practical matter, more-engaged employees generate higher business revenues. And, as recognized by a study of federal employees, employees are “significantly more likely” to receive high performance ratings if they participate in wellness programs, employee assistance programs, or similar wellness-based policies.
Lawyers who are more connected to their colleagues are not only healthier but more productive.
Recognizing this, several companies have engaged in what Whole Foods founder John Mackey and economist Raj Sisodia have termed “conscious capitalism”—a system whereby businesses “simultaneously create multiple kinds of value and well-being for all stakeholders: financial, intellectual, physical, ecological, social, cultural, emotional, ethical, and even spiritual.” As they explain, conscious businesses “place a huge emphasis on improving the health and well-being of their team members,” under the belief that when employees are healthy, the company not only generates higher revenue (because the employees do better work and provide better services to customers) but also spends less money on health care. As a consequence, such businesses “enhance the[ir] bottom line” through programs that promote employee health and well-being, including onsite gyms, nutrition programs, work-life balance programs, mindfulness training, and stress-management classes. These businesses take their employees’ physical and mental health seriously, and “encourage positive emotional energy in the workplace to promote intellectual vigor and enhance productivity.”
Unsurprisingly, conscious businesses perform exceptionally well financially. According to Mackey and Sisodia, a sample of conscious businesses outperformed the overall stock market by a ratio of 10.5:1 over a 15-year period from 1996 to 2011. These businesses delivered more than 1,646 percent returns when the market was up only 157 percent over that period. Moreover, research on mindfulness and happiness generally is instructive on the benefits of well-being to employee performance. Beyond formal wellness programs, firms that promote mindfulness can help manage and reduce lawyer distress and also enable their lawyers to provide exceptional client service. Practicing mindfulness can help attorneys feel and perform better and improve decision-making, ethics, and even active listening and negotiation skills. In fact, attorneys at an international law firm reported a 45 percent increase in focus, a 35 percent decrease in stress, and a 35 percent increase in effectiveness after completing a firm-sponsored mindfulness program.
In addition, happiness research has demonstrated that happiness correlates to successful outcomes because “positive affect engenders success.” While happiness is inextricably linked to work satisfaction, as Mackey and Sisodia note, as “the number one determinant of happiness is a ‘good job’: work that is meaningful and done in the company of people we care about,” happiness is actually the cause of success, not merely the result. In fact, studies have found a strong correlation between happy employees and objective and subjective measures of productivity, and as a general matter positive affect can improve not only skills important for effective lawyering (such as sociability, altruism, and conflict resolution) but physical health as well. As explained by happiness researcher Shawn Achor, engaged workers perform better because they often “experience positive emotions, including happiness, joy, and enthusiasm; experience better health; create their own job and personal resources; and transfer their engagement to others.”
Lawyers who are more connected to their colleagues are not only healthier but more productive. Just as a negative environment can impact employees negatively, a positive environment can impact them positively. Achor’s research demonstrates that we can “pick up negativity, stress, and apathy” from others; simply observing a co-worker’s stress “can have an immediate effect upon our own nervous system, raising our levels of the stress hormone cortisol by as much as 26 percent.” By contrast, “the presence of even one positive person in a community can actually ‘infect’ everyone in it with positivity.” Put differently, working with positive, engaged, motivated people enhances our own positivity, engagement, motivation, and creativity. Thus, in creating an environment that cultivates attorney well-being, the improved well-being of one or some lawyers will affect positively those around them, thus making teams, departments, and firms more productive and successful.
Clients have asserted more control over decisions regarding their legal representation and are “insisting on more value for their legal spend.”
That healthier employees perform better is critical in the legal profession for several reasons, but notably because of recent client demands for attorney efficiency. As explained above, firms could avoid addressing lawyer well-being issues on performance-related grounds because its business model thrived on and financially rewarded inefficiency—the billable hour. Over the last few years, however, clients have caused law firms to move away from the traditional hourly billing model and toward “alternative fee arrangements,” or a “mutual agreement between a law firm and [client] for billing and payment of outside legal services that does not rely on straight hourly billing by the firm.” Such arrangements include fixed-price agreements, success fee agreements, contingency pricing, and other alternatives to the traditional billable hour. As of 2017, alternative fee arrangements account for 15 to 20 percent of law firm revenues; however, when combined with budget-based pricing, such alternatives to the billable hour “may well account for 80 or 90 percent of all revenues.” According to Altman Weil data, nearly 68 percent of all firms are working with clients to create alternative fee arrangements, and nearly 77 percent of firms with more than 250 lawyers are doing so.
Large companies are seeking to change the billing model for their outside counsel and are insisting on alternative fee arrangements. For instance, Microsoft enacted a Strategic Partner program on July 1, 2017, which “plac[ed] a stronger focus on alternative fee arrangements, retainer payments, diversity and developing relationships with outside counsel that go beyond the billable hour.” At that time, approximately 55 to 60 percent of its outside counsel matters were billed on a nonhourly, alternative fee basis, with the hope of raising that figure to “a very robust 90 percent” by mid-2019. In addition, pharmaceutical company GlaxoSmithKline had 80 percent of outside legal work in 2017 done through an alternative fee arrangement, compared with just 3 percent in 2008.
In all, since 2008, clients have asserted more control over decisions regarding their legal representation and are “insisting on more value for their legal spend”—for example, “higher levels of predictability, efficiency, and cost effectiveness in the delivery of legal services, quality being assumed.” Moreover, a 2019 survey revealed that 82 percent of in-house corporate counsel are seeking to cut their company’s legal spend over the next two years. Thus, since the billable-hour model is antithetical to productivity and efficiently—why finish a task efficiently in four hours when it could be billed over six?—clients are now demanding firms move away from this model and instead will award their business to firms that demonstrate they can perform the work productively, efficiently, predictably, and cost-effectively. Accordingly, firms that prioritize lawyers’ well-being will be better equipped to meet client demands for exceptional yet efficient service.
As discussed above, mental health and addiction issues can lead to high attrition rates. By contrast, firms that promote lawyer well-being will see improved retention rates. This is borne out by experiences in other industries. For example, conscious businesses typically operate with much lower levels of employee turnover, which avoids the replacement cost of new employee hiring and training.
Moreover, general counsel at major corporations have begun to understand that balance in the lives of their outside lawyers can be an important factor in their companies’ bottom line. In fact, general counsel will consider lawyer attrition as well as the quality-of-life issues that affect attrition when making decisions of which outside firms to retain. These corporate clients recognize that the absence of balance contributes to high associate attrition rates in large law firms and that attrition, in turn, imposes costs that result from the loss of institutional knowledge and continuity. As the former senior vice president and general counsel of the Association of Corporate Counsel recognized more generally, the “greatest investment in any new lawyer” is in “developing the culture, support mechanisms and leadership initiatives that will ensure [that] lawyer’s success,” because firms will not only receive the “returns” generated by that lawyer, but the “larger benefits of cultivating a better work environment will rain down on everyone in the firm.” Indeed, in August 2019, 3M—whose legal department is itself a signatory to the ABA Wellness Pledge—has incorporated the pledge into its requests for proposals from outside counsel by “ask[ing] law firms if they have signed the pledge and what specific action they have taken to promote well-being among the lawyers and other legal professionals in their firm.”
Firms that prioritize lawyers’ well-being will be better equipped to meet client demands for exceptional yet efficient service.
Thus, firms that make efforts to retain their attorneys will not only avoid turnover costs and lose institutional knowledge about matters and clients, as well as client relationships generally, it will help foster and retain clients in the first place. And firms will be better equipped to retain their attorneys by taking steps to promote and prioritize their wellness and well-being.
3. Recruiting younger lawyers: Choices for the new generations
The third area in which law firms will benefit will be in recruitment, particularly with respect to Millennials and, as they enter the profession, Generation Z lawyers. People in these younger generations suffer from “higher levels of depression, anxiety, and suicide ideation than they did a decade ago.” Indeed, according to Achor, in 2009, the average age of being diagnosed with depression was 14.5, compared to 29 in 1978.
Younger Millennials are now entering the profession, with older Millennials having as much as 10 years or more in practice. That latter age cohort has increased a spike in mental health issues. A recent study by Blue Cross Blue Shield revealed that the prevalence of depression among Millennials has increased by 31 percent from 2014 to 2017 and is the top condition affecting Millennials by adverse health impact. Depression is 18 percent more prevalent for older Millennials than Generation Xers at the same age.
The trend is more concerning for the next generation. Generation Zers are “on the verge of the most severe mental health crisis for young people in decades.” Depression of middle- and high school–aged Generation Z children has “skyrocketed” between 2012 and 2015, a trend that exists across all demographic and socioeconomic classes. A 2015 study by the U.S. Department of Health and Human Services found that 56 percent more teens experienced a major depressive episode in 2015 than in 2010, and 60 percent more experienced severe impairment.
This trend has continued as Generation Zers have gotten older. They are increasingly entering college with mental health issues, with nearly twice the number of incoming students in 2016 indicating they feel depressed than those who entered college in 2009. As Professor Jean Twenge notes, they are more likely to report feeling “overwhelming anxiety” and that they “feel so depressed they [can]not function.” In addition, according to a 2019 study by Professor Twenge and her colleagues, current 20- to 21-year-olds were 78 percent more likely to have experienced serious psychological distress in the last month than 20- to 21-year-olds in 2008, and current 18- to 25-year-olds are 71 percent more likely to experience such distress than 18- to 25-year-olds in 2008. In all, Generation Zers are 49 percent more likely than Millennials to have reported serious psychological distress in the past month.
Perhaps not surprisingly, Millennials prioritize work-life balance when choosing employment, even more than salary. As a general matter, they seek meaning and purpose in their work and they want supportive and nurturing work environments. A 2016 survey of Millennials revealed that, salary excluded, work-life balance is the most important characteristic they search for when choosing a job. Other top considerations include leadership opportunities, a sense of meaning or purpose in their work, training, and the impact the work has on society—that is, the types of motivations and values that enhance one’s subjective well-being and, in turn, inversely correlate to depression. Thus, Millennials respond best to employers who convey “you matter to us”—that is, employers who see their employees’ humanity and well-being is integral to the company and its success.
With Generation Z beginning to enter law school and the profession, firms that address mental health and addiction issues and foster a healthy environment will help attract these incoming interns and associates. They experience mental health issues in greater frequency than Millennials, and they are more likely to talk about and seek help for them.
If firms do not want to make changes on moral grounds, they can and should at least make them on business ones.
In fact, law students on the Millennial/Generation Z cusp have made clear that mental health is a priority to them as they enter the legal profession. In its 2019 Summer Associates Survey, American Lawyer reported that 42 percent of respondents said they are concerned about their mental health, including because of the “structure of the legal industry.” Further, when asked to list their top three factors in considering an employment offer from a law firm, work-life balance was the most important factor among the respondents.
This prioritization of mental health and work-life balance is not an anomaly in this one survey. Young Millennial and Generation Z students are engaging in activism to promote and mental health in the profession. In 2019, the Virginia State Bar removed questions relating to mental health history and treatment in response to a student-led movement for it to do so, and several well-being-related programs at law schools are led by students. Younger Generation Z students are also campaigning for greater mental health awareness and treatment; for instance, in June 2019, in response to student activism, Oregon enacted a law that will allow students to take “mental health days” from school as an excused absence, just as they would a sick day. Thus, as they enter the workforce, they certainly will prioritize their mental health and well-being in choosing among employers.
Consequently, firms that prioritize attorney health and well-being will be attractive to both lateral lawyers who seek better balance as well as younger and future lawyers who prioritize their own well-being.
The legal profession has known for decades that its members suffer from mental illness and addiction in staggering numbers, and firms largely have been unmoved by the moral case for change. As the practice of law has become more of a business, firms can and will make changes to reduce costs, increase efficiencies, and improve profit margins. I argue not only that the profession should and should want to create, as the Path to Lawyer Well-Being report put it, “a better future for our lawyers” by making such changes, but that it is in its interest to do so. If firms do not want to make changes on moral grounds, they can and should at least make them on business ones. Put differently, why firms make these changes is not as important as that they make them, and if it takes a cost-benefit analysis for firms and the profession to prioritize attorney well-being, so be it.
Jarrod F. Reich is an associate professor of law in the Legal Practice Department of Georgetown University Law Center. He currently serves as the chair of the Association of American Law Schools’ Section on Balance in Legal Education. Prior to joining the academy, he spent eight years as a litigator with the law firm Boies Schiller Flexner.