2018 LABOR AND EMPLOYMENT COUNSEL EXCLUSIVE

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 34-1

CHANGING YOUR MIND

WHY THE ABA, ETHICS BOARDS, AND CORPORATE LAW DEPARTMENTS ARE SUPPORTING

MINDFULNESS TRAINING FOR LAWYERS?

Maria Greco Danaher – Ogletree Deakins (Pittsburgh)

Julie A. Donahue – Universal Health Services, Inc.

Leslie E. Wallis – Ogletree Deakins (Los Angeles)

2018 LABOR AND EMPLOYMENT COUNSEL EXCLUSIVE

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 34-2

RESOURCES

• https://hbr.org/2015/01/mindfulness-can-literally-change-your-brain

• https://www.lawpracticetoday.org/article/firm-mindfulness/

• https://www.lawpracticetoday.org/article/burning-candle-ends-backfires/

• https://www.lawpracticetoday.org/article/cost-unwell-layer/

1

Changing Your Mind: Why the ABA, Ethics Boards, and Corporate Law Departments Are Supporting Mindfulness Training for Lawyers

Presented by

Maria Greco Danaher (Pittsburgh), Julie A. Donahue (Universal

Health Services, Inc.), and Leslie E. Wallis (Los Angeles)

Overview

• Epidemic of substance abuse and mental health issues, including depression

• Recommendations from the National Task Force on Lawyer Well-Being

• Using mindfulness as a tool to ethical behavior and communication

2

Johns Hopkins Study

• Attorneys are three times more likely to suffer from depression than the general public

• Suicide is the third leading cause of death for attorneys (after cancer and heart disease)

• Suicide rate is six times the rate of the general population

Additional Relevant Statistics

• Attorneys are twice as likely to be chemically dependent as the general population

– One of every six attorneys (v. 1 of 13 in general public)

– 18 – 20% abuse drugs (v. 8 – 10% of general public)

• Alcoholism is a factor in about 30% of attorney suicides

• 50% of disciplinary cases involve chemical dependency

3

More (and More) Statistics

• 2016 study of 12,825 attorneys across U.S.

– Between 21 – 36% licensed, employed attorneys qualify as problem drinkers

– 28% have depression

– 19% have anxiety disorder

– 23% have stress disorder

– Attorneys in private firms experience highest rates of problem drinking and depression

Stressors and Paths Toward Addiction

• Work load

• Time constraints

• PTSD – experiences with opposing counsel, in court, even with colleagues

• Lawyers tend to deny they have a problem, and avoid treatment

• Identification and treatment is important and denial undercuts the ability to treat the disease early

4

WHAT CAN WE DO ABOUT THIS?

2017 Task Force consisted of entities and stakeholders within and outside the ABA

“The Path to Well-Being: Practical Recommendations for Positive Change”

Acknowledged problems and statistics, and made practical suggestions for change

2018 Tool Box

National Task Force on Lawyer Well-Being

5

• Work-Engagement v. Burnout

• Stressors as risk of harm

• Recovering from Stress

• Conflict Management

• Work-Life Conflict

Topics of Importance Raised in Report

Mechanisms for Change

• Work engagement

• Challenge (v. stress)

• Resilience

• Leadership development

• Mindfulness meditation as a key element of recovery

6

HOW CAN MINDFULNESS HELP US?

Mindfulness as a Tool

• Observe physical, emotional, and mental experiences with deliberate and open attention

• Use wise effort to recognize thoughts that are not beneficial

• Learn to choose where to place attention

• Substitute curiosity for judgment

7

Why We Should be Mindful

• Mindfulness has been shown to measurably increase productivity

• Mindfulness can increase your attention span and memory

• Mindfulness clarifies decision-making

• Mindfulness helps attorneys comply with ethical rules

Rules of Professional Conduct

• Rule 1.1 (Competence)

• Rule 1.2 (Scope of Representation)

• Rule 1.4 (Communication)

• Rule 2.1 (Professional Judgment)

• Rule 4.1 (Truthfulness)

8

Rule 1.1 (Competence)

• Lawyer must provide competent representation

• Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation

Rule 1.2 (Scope of Representation)

• Lawyer must abide by a client’s decisions concerning the objectives of representation

• Must consult with the client as to the means by which they are to be pursued

9

Rule 1.4 (Communication)

• Lawyers must (1) inform client; (2) consult with client; and (3) comply with requests for information from the client . . .

• . . . and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

Rule 2.1 (Professional Judgment)

Lawyer must exercise independent professional judgment and render candid advice

Client is entitled to straightforward advice expressing the lawyer’s honest assessment

Lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client

10

Rule 4.1 (Truthfulness)

• Lawyer cannot knowingly make a false statement of material fact or law to a third person or fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client

How To Be Mindful

• Actively observe one thing at a time

• Be curious about everything

• Avoid becoming judgmental

• Be kind to yourself

• Listen constructively

• Communicate consciously

11

How to Communicate Mindfully

• Concisely articulate issues/problems

• Understand the audience

• Be willing to deliver “difficult” messages in a constructive manner

• Consciously act in an ethical way

How to Enable Mindful Response

• Be aware of the speaker’s motivation

• Use silence as a tool

• Ask questions to clarify and assist

• Encourage factual (as opposed to emotional) discourse

• Be fully prepared to listen without argument

12

How Does Mindfulness Help?

• Keeps us in the present moment

• Puts things in perspective in a practical way

• Allows us to save the energy of our thoughts for the important things when they happen

Ethical/Mindful Communication

• Mindfulness allows us to navigate communication more effectively, and to manage our own behavior by being more aware of what we say and how we say it, allowing us to act effectively and ethically in the process.

13

How Can We Do This?

• Consider your communication style

• Now consider that style with the addition of mindfulness criteria

• How does mindful communication help us to be more ethical lawyers?

Here Are Some Resources

• ABA Report from the National Task Force on Lawyer Well-Being: https://www.americanbar.org/groups/lawyer_assistance/task_force_report.html

• Well-Being Toolkit for Lawyers and Legal Employers: https:www.americanbar.org/content/dam/aba/administrative/lawyer_assistance/ls_colap_well-being_toolkit_for_lawyers_legal_employers.authcheckdam.pdf

• Mindful/meditation apps:

• Headspace

• 10% Happier

• Calm

• www.legallymindful.com

• https://warriorone.com/

14

Changing Your Mind: Why the ABA, Ethics Boards, and Corporate Law Departments Are Supporting Mindfulness Training for Lawyers

Presented by

Maria Greco Danaher (Pittsburgh), Julie A. Donahue (Universal

Health Services, Inc.), and Leslie E. Wallis (Los Angeles)