About one-fifth of lawyers and staffers considered suicide at some point in their careers, new survey says.

Debra Cassens Weiss

American Bar Association Journal

Originally posted 10 MAY 22

A new survey of lawyers and staff members hailing mostly from BigLaw has found that anxiety, depression and isolation remain at concerning levels, despite a slight decrease in the percentages since the survey last year.

The Mental Health Survey by Law.com and ALM Intelligence found that 67% of the respondents reported anxiety, 35% reported depression and 44% reported isolation, according to an article by Law.com.

The survey, conducted in March and April, asked respondents from around the world about their mental health and law firm environments in 2021.

The percentage of respondents who contemplated suicide at some point in their professional careers was 19%, the article reports.

In addition, 2.4% of the respondents said they had a drug problem, and 9.4% said they had an issue with alcoholic drinking.

About 74% of the respondents thought that their work environment contributed to their mental health issues. When asked about the factors that had a negative impact on mental health, top concerns were always being on call (72%), billable hour pressure (59%), client demands (57%), lack of sleep (55%) and lean staffing (49.5%).

The survey asked about the impact of remote work for the first time. About 59% said remote work increased their quality of life; about 62% said it increased the quality of home-based relationships; about 54% said it led to an increase in their billable hours; and 50% said it improved personal finances. But 76% said remote work hurt the quality of interpersonal relationships with colleagues.

The info is here.

A well being toolkit for lawyer and legal employers is here.

The Lawyer Who Wants to Transform Legal Ethics with Behavioral Science

Brian Gallagher
www.ethicalsystems.org
Originally posted May 28, 2019

Here is an excerpt:

In a paper on the psychology of conflicts of interest, you wrote that, “Too often, the Supreme Court has made assumptions about the behavior of defense lawyers without empirical support.” How does behavioral science inform the way the Supreme Court should think about defense lawyers?

In the last 40 years, the Supreme Court has analyzed conflicts of interest in a manner that, I believe, makes unsupported assumptions about how criminal defense lawyers respond to allegations about their own misbehavior. My argument is that lawyers—like all people—are poorly equipped to recognize and address their own conflicts of interest. As a result, I propose that constitutional standards for conflicts of interest should be treated more like the ethical rules concerning conflicts, which focus on the risk that a conflict will influence a lawyer’s behavior rather than whether a conflict has, in fact, caused an adverse effect on the legal representation that a client received. I’m happy that my analysis has been cited by a few state courts that have looked at these and similar issues—and who knows, maybe someday the Supreme Court will cite behavioral research in forming its opinion on this topic.

You recently shared a paper on your blog, calling it a “fascinating discussion of the role of behavioral ethics in the context of judicial decision-making.” Which points or lessons stood out to you the most?

Interestingly, in a series of decisions about the constitutional standards for judicial conflicts of interest, the Supreme Court seems to be a bit more behaviorally realistic about conflicts of interest than it has been about attorney conflicts. For instance, in a case from a few terms ago, the Supreme Court—in deciding whether a justice on the Pennsylvania Supreme Court could properly adjudicate a death penalty case when he had previously been the prosecutor who authorized capital charges against the defendant—noted that “bias is easy to attribute to others and difficult to discern in oneself.” The Court went even further, noting that when a judge is asked to participate in a case in which he or she previously served as a prosecutor, there is “a risk that the judge would be so psychologically wedded to his or her previous position as a prosecutor that the judge would consciously or unconsciously avoid the appearance of having erred or changed position.”

The info is here.

An Empirical Evaluation of the Failure of the Strickland Standard to Ensure Adequate Counsel to Defendants with Mental Disabilities Facing the Death Penalty

Michael L. Perlin, Talia Roitberg Harmon, & Sarah Chatt
Social Science Research Network 
http://dx.doi.org/10.2139/ssrn.3332730

Abstract

Anyone who has been involved with death penalty litigation in the past four decades knows that one of the most scandalous aspects of that process—in many ways, the most scandalous—is the inadequacy of counsel so often provided to defendants facing execution. By now, virtually anyone with even a passing interest is well versed in the cases and stories about sleeping lawyers, missed deadlines, alcoholic and disoriented lawyers, and, more globally, lawyers who simply failed to vigorously defend their clients. This is not news.

And, in the same vein, anyone who has been so involved with this area of law and policy for the past 35 years knows that it is impossible to make sense of any of these developments without a deep understanding of the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), the case that established a pallid, virtually-impossible-to fail test for adequacy of counsel in such litigation. Again, this is not news.

We also know that some of the most troubling results in Strickland interpretations have come in cases in which the defendant was mentally disabled—either by serious mental illness or by intellectual disability. Some of the decisions in these cases—rejecting Strickland-based appeals—have been shocking, making a mockery out of a constitutionally based standard.

To the best of our knowledge, no one has—prior to this article—undertaken an extensive empirical analysis of how one discrete US federal circuit court of appeals has dealt with a wide array of Strickland-claim cases in cases involving defendants with mental disabilities. We do this here. In this article, we reexamine these issues from the perspective of the 198 state cases decided in the Fifth Circuit from 1984 to 2017 involving death penalty verdicts in which, at some stage of the appellate process, a Strickland claim was made (in which there were only 13 cases in which any relief was even preliminarily granted under Strickland). As we demonstrate subsequently, Strickland is indeed a pallid standard, fostering “tolerance of abysmal lawyering,” and is one that makes a mockery of the most vital of constitutional law protections: the right to adequate counsel.

This article will proceed in this way. First, we discuss the background of the development of counsel adequacy in death penalty cases. Next, we look carefully at Strickland, and the subsequent Supreme Court cases that appear—on the surface—to bolster it in this context. We then consider multiple jurisprudential filters that we believe must be taken seriously if this area of the law is to be given any authentic meaning. Next, we will examine and interpret the data that we have developed, looking carefully at what happened after the Strickland-ordered remand in the 13 Strickland “victories.” Finally, we will look at this entire area of law through the filter of therapeutic jurisprudence, and then explain why and how the charade of adequacy of counsel law fails miserably to meet the standards of this important school of thought.

Trump lawyers may have given false info about Cohen payments

Tal Axelrod
thehill.com
Originally posted February 15, 2019

Rep. Elijah Cummings (D-Md.), the chairman of the House Oversight and Reform Committee, said Friday the panel believes two attorneys for President Trump may have given false information to government ethics officials.

Cummings said the panel has reviewed newly uncovered documents from the Office of Government Ethics (OGE) suggesting Trump's personal lawyer Sheri Dillon and former White House lawyer Stefan Passantino gave false info about hush-money payments to adult-film actress Stormy Daniels and former Playboy model Karen McDougal.

“It now appears that President Trump’s other attorneys — at the White House and in private practice — may have provided false information about these payments to federal officials,” Cummings wrote in a letter to White House Counsel Pat Cipollone.

Cummings said Dillon “repeatedly stated to federal officials at OGE that President Trump never owed any money to Mr. Cohen in 2016 and 2017” and Passantino falsely told officials that Trump and his former lawyer Michael Cohen had a “retainer agreement.”

The info is here.

Must Bill Barr Abide Ethics Advice on Recusal? A Debate

Barbara McQuade and Chuck Rosenberg 
LawFareBlog.com
Originally posted January 22, 2019

Here is an excerpt:

But we respectfully disagree on an important point that surfaced during Attorney General-nominee Bill Barr’s confirmation hearing before the Senate Judiciary Committee on January 15 and 16: whether, if confirmed, he should agree to abide ethics advice from Justice Department officials, before he receives that advice, regarding whether to recuse himself from supervision of the Mueller investigation.

Barr previously criticized the Mueller probe, including in an unsolicited legal memo he circulated to the Justice Department and President Trump’s legal team in the spring of 2018, and he commented favorably on the merits of investigating Hillary Clinton for what seems to us to be a bogus accusation. During his hearing, Barr was asked whether he would seek ethics advice regarding recusal. He said he would. When asked whether he would follow that advice, he said that as “head of the agency,” he would make the decision as to his own recusal. He would not follow that ethics advice, he said, if he “disagreed” with it. Is that appropriate? McQuade says no; Rosenberg says yes.

The Justice Department has a strict set of rules and norms that govern recusals. In some cases—for instance, where a prosecutor has a political, financial, or familial interest in a matter—a recusal is mandatory. Other situations can give rise to an appearance of a conflict – a set of conditions that call into question a prosecutor’s impartiality. In those cases, a prosecutor might be advised to recuse, but it is not mandatory. We both believe it is crucial that the work of the Justice Department be impartial and that it appear to be impartial. Thus, we believe that these recusal rules should be scrupulously followed. So far, so good.

The blog post debate is here.

Bringing back professionalism in the practice of law is key

Samuel C. Stretton
The Legal Intelligencer
Originally published October 4, 2018

Here is an excerpt:

All lawyers ought to review the Pennsylvania Rules of Civility. Although these rules do not have disciplinary consequences, they set forth the aspirations all lawyers should achieve in the legal profession. Perhaps lawyers have to understand what it means to be a professional. To have the privilege of being admitted to practice law in a state is a wonderful opportunity. The lawyer being admitted becomes part of the legal profession which has a long and historic presence. The legal profession can take great credit for the evolving law and for the democratic institutions which populate this country. Lawyers through vigorous advocacy and through much involvement in the community and in the political offices have help to create a society by law where fairness and justice are the ideals. Once admitted to practice, each and every lawyer becomes part of this wonderful profession and has a duty to uphold the ideals not only in terms of representing clients as vigorously and as honestly as they can, but also in terms of insuring involvement in the community and in society. Each generation of lawyers help to reinterpret the constitution and make it a living document to adjust to the modern problems of every generation. It is a wonderful and great honor to be part of this profession and perhaps one of the greatest privileges any lawyer can have. This privilege allows a lawyer to participate fully in the third branch of public. This privilege allows a lawyer to become part of the public life of their community and of the country in terms of representation and in terms of legal and judicial changes.

The information is here.

What swamp? Lobbyists get ethics waivers to work for Trump

Associated Press
Originally posted March 9, 2017

President Donald Trump and his appointees have stocked federal agencies with ex-lobbyists and corporate lawyers who now help regulate the very industries from which they previously collected paychecks, despite promising as a candidate to drain the swamp in Washington.

A week after his January 2017 inauguration, Trump signed an executive order that bars former lobbyists, lawyers and others from participating in any matter they lobbied or otherwise worked on for private clients within two years before going to work for the government.

But records reviewed by The Associated Press show Trump's top lawyer, White House counsel Don McGahn, has issued at least 24 ethics waivers to key administration officials at the White House and executive branch agencies.

Though the waivers were typically signed by McGahn months ago, the Office of Government Ethics disclosed several more on Wednesday.

One allows FBI Director Chris Wray "to participate in matters involving a confidential former client." The three-sentence waiver gives no indication about what Wray's conflict of interest might be or how it may violate Trump's ethics order.

Asked about the waivers, Lindsay Walters, a White House spokeswoman, said, "In the interests of full transparency and good governance, the posted waivers set forth the policy reasons for granting an exception to the pledge."

The article is here.

The Data Scientist Putting Ethics In AI

By Poornima Apte
The Daily Dose
Originally published SEPT 25 2017

Here is an excerpt:

Chowdhury’s other personal goal — to make AI accessible to everyone — is noble, but if the technology’s ramifications are not yet fully known, might it not also be dangerous? Doomsday scenarios — AI as the rapacious monster devouring all our jobs — put forward in the media may not be in our immediate futures, but Alexandra Whittington does worry that implicit human biases could make their way into the AI of the future — a problem that might be exacerbated if not accounted for early on, before any democratization of the tools occurs. Whittington is a futurist and foresight director at Fast Future. She points to a recent example of AI in law where the “robot-lawyer” was named Ross, and the legal assistant had a woman’s name, Cara. “You look at Siri and Cortana, they’re women, right?” Whittington says. “But they’re assistants, not the attorney or the accountant.” It’s the whole garbage-in, garbage-out theory, she says, cautioning against an overly idealistic approach toward the technology.

The article is here.

Social media can cause problems for lawyers when it comes to ethics, professional responsibility

Bodies are trying to come up with guidelines for the legal profession when it comes to the use of social media

By Ed Silverstein
Inside Counsel
Originally published April 29, 2014

It is becoming increasingly confusing what lawyers, judges and courthouse employees can post on social media sites. For instance, can a judge “friend” someone who is an attorney on Facebook and then have the attorney appear before them in court?

Attorneys who post on sites like Facebook also have to worry about violating attorney-client confidentiality, disciplinary action, losing jobs, or engaging in the unauthorized or inadvertent practice of law, according to an article in the Touro Law Review. In addition, attorneys could “face sanctions for revealing misconduct or disparaging judges on social media sites,” the article adds.

The entire article is here.

Psychologist withdraws SJC appeal on license

BY: Colman M Herman and Bruce Mohl
CommonWealth

August 24, 2011

A female psychologist who had sex with a former patient is withdrawing her court appeal seeking the return of her license.

Brookline psychologist Mary O’Neill acknowledged having a sexual relationship with her patient, Eric MacLeish, just weeks after his therapy sessions ended. The standard punishment in such cases is permanent license revocation, but O’Neill filed an appeal with the state Supreme Judicial Court arguing that her license should be only temporarily suspended because her lapse in judgment was caused by the collapse of her own marriage.

The case was scheduled to be heard next month, but SJC Clerk Susan Mellen said O’Neill’s attorney told her he is withdrawing the appeal. Mellen said some paperwork must be completed before the withdrawal is official, but she says she has already told the SJC justices not to bother studying the case files. The Associated Press reported that O’Neill’s attorney  confirmed he was withdrawing the appeal, but gave no reason for the decision. The attorney could not be reached by CommonWealth.

The case was the focus of a lengthy article on CommonWealth’s website that dealt with the legal issues involved as well as O’Neill’s high-profile patient, MacLeish. MacLeish is an attorney who represented many of the clients who sued the Catholic Archdiocese of Boston alleging priests had sexually abused them. The case brought MacLeish national attention, but court records indicate it also scarred him emotionally and made him realize that he had been sexually abused as a child at the hands of a teacher at a boarding school in England and by a scoutmaster associated with the school.

In 2004, MacLeish turned to O’Neill for help. She diagnosed him with post-traumatic stress disorder and treated him for 10 sessions between August and September 2004. Shortly after those sessions ended, the two were sleeping together.

Linda Jorgenson, a Massachusetts attorney who has represented hundreds of people who have claimed their therapists abused them sexually, said she couldn’t understand why O'Neill would withdraw her appeal. "Her briefs have been filed. All that is left is for the oral argument to take place in September,” she said. “I don't see anything that she had to lose by waiting for the court to issue its ruling."

Thanks to Gary Schoener for the information.

The reader can find the earlier blog post here.

Ethics Opinion Tackles 'Friend' Requests

This article is about the ethics for lawyers.  Simultaneously, it is an interesting read about how professionals are trying to use social networking sites to their advantage.

          *          *          *          * 
by Cynthia Foster

The Recorder

Enterprising lawyers beware: using Facebook as an investigative tool may get you into trouble with the bar, says an ethics opinion from the San Diego County Bar Association.

The opinion concludes that sending a Facebook "friend request" to a represented party violates California Rule of Professional Conduct 2-100 and could be cause for discipline. The opinion's author, Daniel Eaton, said it's the first to confront ex parte communication through social media.

Eaton, an employment defense partner at Seltzer Caplan McMahon Vitek in San Diego, said the bar association's ethics committee considered whether lawyers could approach Facebook the way they approach the wider, public Internet — checking a company's website for information related to a matter, for instance.

"Lawyers are making very wide use of social media, and we wanted to test the proposition that lawyers could use social media to reach out to parties that are represented. Is that a legitimate form of the kind of broad investigation that lawyers engage in using the Internet?" Eaton said.

He didn't think so. But other members of the ethics committee, including its co-chair, San Diego County Deputy District Attorney Wendy Patrick, were dubious.

"When you just hear the proposition it kind of takes you aback, because how could a friend request concern the subject matter of representation? It doesn't appear on its face to violate the rule," she said.

Patrick, who is also vice chair of the State Bar's Committee on Professional Responsibility and Conduct, said she was won over to Eaton's position after reading his research. The rest of the committee was, too. The opinion, which Eaton said was the lengthiest he could remember the committee ever voting on, passed unanimously in May and was approved by the association's board last week.

The opinion is not binding in state court, but according to CRPC Rule 1-100 should be used by attorneys as a behavioral guide. Eaton said the committee was surprised to find that no other associations had directly addressed the link between social media communication and ex parte communication.

According to the opinion, lawyers who try to friend opposing parties as an investigative tool are attempting to deceive them.

"And who needs friends like that?" said Patrick.