Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, First Amendment, law & theology, and media law. He writes regularly in all of these fields. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.
Sunday, July 16, 2017
Ethics, Addiction, and Vocational Discernment in the Law
Our ethical responsibilities as lawyers are interconnected--so our ethical violations tend to be interconnected as well.
Consider: If we are failing in our duty to diligently represent our client (ABA Model Rule 1.3), then we are probably also failing in our duty to provide competent representation (ABA Model Rule 1.1). This makes it more likely that we will fail to fulfill our duty of communication (ABA Model Rule 1.4), because we will be disinclined to let our clients know that we're not doing their work well or not doing it at all. Putting our own interests before those of our client in this way gives rise to a conflict of interest (ABA Model Rule 1.7)--indeed, a conflict of the worst kind because the client will not know it has arisen and will be powerless to address it. If the client suspects something has gone wrong and asks about it, we may be tempted to mislead or even lie to the client (ABA Model Rule 7.1). And so on and so on.
When you read enough attorney discipline decisions you notice an unmistakable pattern: these failings usually start small; then they expand and multiply; and then they cascade.
These breaches have numerous causes. As in all professions, some lawyers simply are not honest or smart enough to do what they're doing. Others are sufficiently honorable and intelligent, but they get into trouble because their workload has become unmanageable or because they are going through an unusually challenging time, such as a divorce or a physical illness or the death of a loved one.
As a recent and important piece in the New York Times highlights, still others fall into difficulties because of depression, alcoholism, and drug abuse. The statistics concerning these struggles are alarming and there are good reasons to believe that the numbers may understate the magnitude of the problem. To add a further layer of complexity, it would seem that these are not so much causes as symptoms--indicators of some other cause that drives so many members of our profession toward despair and the frantic search for relief from it.
My own view--informed by more than thirty years of interacting with practicing and aspiring lawyers--is that a primary cause of this despair is the absence of "fit" between (a) who the person is, at some deep and immutable level, and (b) what they are expected and required to do in their position within the profession. A straightforward example may help: an individual who is ill at ease with conflict will be pretty miserable as a litigator, even if he or she is bright and hard-working enough to get the job done.
This is not to say that the individual should have chosen to be something other than a lawyer--although in particular instances that may be the case. To the contrary, a profession that includes so many different roles--big firm specialist or small town generalist, in-house advisor or public defender, patent analyst or estate planner, legislative drafter or child rights advocate--arguably has at least one place in it for almost everyone of good character and reasonable intellectual heft. Rather, it is to say that much of the despair that practicing lawyers experience may be attributable to a mismatch between the individual attorney and the space within the profession into which he or she has wandered.
I think there is some good news on this front. When I began practicing in 1984, there was very little lawyer mobility. A lawyer who moved from one firm to another or one segment of the profession to another was viewed with suspicion. The stigma attached to such shifts is largely a thing of the past.
Also, clinical and practice simulation courses in law schools help give students a clearer idea of how they might want to spend their time as a professional. Over the years, I have spoken with numerous students who thought they'd like to practice in a particular area--until they had the chance to test-drive that practice through a clinic, simulation, or internship. This sent them looking for alternatives and, in most cases in my experience, the student was able to find at least one that proved to be a better fit.
This is all well and good, but clearly more should and can be done. Here is one modest proposal.
From time to time, I teach a seminar at the University of Michigan Law School called Law & Theology. In the course, we try to determine whether there are lessons that lawyers, judges, and legal scholars can learn from the way that theologians think about things that (for lack of a better term) bedevil us as well. For example, theologians--like members of the legal profession--have to think about the proper approach to textual interpretation, the appropriate balance between justice and mercy, how we decide which people and documents have authority, the place of the poor of a system that may otherwise favor the rich, and so on and so on. In that course, we try to figure out how the wranglings of theologians with these issues can help and inform our own.
In the last class session, the students and I think together about the concept of "vocational discernment." This idea, which has a significant presence in many religious traditions, relates to the process by which an individual determines his or her place in the life of faith. Is the person called to be clergy? What kind of clergy--a local pastor, or a hospital chaplain, or a teacher in a religious school, or a music director? A lay leader? A follower? How does someone go about making such a decision? How will someone know if they've reached the right conclusion? Or is "knowing" even a reasonable aspiration? In many religious traditions, vocational discernment is a critical--even revered and essential--step toward deciding on a professional direction.
The discussion in this last class always leads us in many different directions. Toward the end of the conversation, though, every group of students reaches this conclusion: they wish they had engaged in this analysis and discussion earlier in their legal education--perhaps even before they had entered law school. With virtual unanimity, they conclude that taking vocational discernment seriously--and talking about it out loud--shed some helpful light on their path.
In my own view, this is one of the great unmet challenges of our profession: devising a program of vocational discernment for those who feel called to practice law. If done correctly, it would yield a happier and more fulfilled legal profession--and therefore better lawyers and better representation for their clients. After all, these things, too, are interconnected.
What would vocational discernment for prospective lawyers look like? How would it be conducted? Who would do it? What are the relevant questions for an aspiring lawyer to ask her- or himself? What can we realistically demand of and expect from such an undertaking?
As we say at the beginning of our own vocational discernment exercise: let the conversation begin.