Agenique Smiley
Write to Win, PLLC
Lawyers are killing themselves. According to the Center for Disease Control (CDC), lawyers are rated within the top four professions with the highest instances of suicide. The number one cause of suicide in the U.S. is depression and lawyers are 3.6 times more likely to suffer from depression than non-lawyers.
A recent study conducted by the Hazelden Betty Ford Foundation and the American Bar Association Commission on Lawyer Assistance Programs revealed that 46 percent of licensed, employed attorneys report concerns with depression at some point in their legal careers. This is an alarming statistic considering that there is only a 10 percent depression rate for the general population. In addition to depression, the study revealed that 21 percent of lawyers qualify as “problem drinkers” and 28 percent struggle with some form of clinical (meaning, actually diagnosed) depression.
In a society where mental illness is still taboo, the affliction is worse when it comes to professionals. Lawyers are seen as, and are expected to be, “problem solvers” with no problems of their own. Colleagues, co-workers and even sometimes loved ones dismiss an attorney’s expression of sadness and/or dissatisfaction with life or profession by telling the ailing attorney that they are just “burnt out and need a vacation” when it is so much deeper than that and so much more than a sunny day in Miami can cure. As Dr. Richard O’Connor wrote in his best-selling book, “Undoing Depression,” depression is not sadness and its opposite is not happiness. Depression hinders a person’s ability to experience life and the full range of emotions that comes therewith, which includes both happiness and sadness. Many lawyers battling with depression suffer in silence; which leads to self-medication through the use of drugs, alcohol, or engaging in other activities for the purpose of numbing the pain. Depression is not an emotion, it is an illness characterized, actually, by the loss of feeling. Many people fighting depression describe it as feeling “numb” or “disconnected from reality.” However, it is inside that numbness and disconnection where the pain exists. A good way to think of how depression feels is to imagine waking up in the middle of surgery, feeling the physical pain but not being able to let the surgeon know that you are awake. So you lay there, suffering in silence. You are supposed to be numb but, somehow, you still feel the pain.
There is a higher rate of depression for attorneys who practice in certain areas of the law. Many of those lawyers, in addition to their depression, suffer from “compassion fatigue,” which, in most cases, worsens the condition. Compassion fatigue, also known as vicarious trauma, secondary traumatic stress, second-hand shock and secondary stress, is the cumulative physical and psychological effect of exposure to traumatic stories or events when working in a helping capacity, combined with the stress and strain of everyday life. Lawyers in certain practice areas, such as Criminal, Family and Juvenile Law may be especially susceptible to compassion fatigue as they are regularly exposed to human induced trauma and are called on to empathetically listen to victims stories, read reports and descriptions of traumatic events or viewing evidence or other explicit images involving violence and other trauma. Compassion fatigue worsens depression because it feeds the pessimistic view that accompanies depression that bad things will always happen, it will never get better and the sadness they feel will always prevail. Physical fatigue is a symptom of depression while compassion fatigue exacerbates the depression itself.
Trial attorneys are the highest group amongst practicing attorneys to suffer from depression. The very nature of the legal profession is adversarial. There are very few, if any, other professions where conflict and discord are highly likely, if not expected. It would be highly unorthodox, frowned upon and would likely result in termination if a teacher went into the classroom of another teacher and contradicted everything the other teacher said; however, that is the very thing that lawyers are hired to do. And what makes matters worse is that many lawyers do so while also hurling insults and personal attacks the other attorney. Most professions foster a feeling of community, encouragement, and support. The legal profession is the exact opposite. Lawyers working on opposing sides of a case are expected to act as sworn enemies. Further, the legal field, especially here in Michigan, is so competitive that the feeling of community amongst attorneys and professional support are virtually non-existent. Attorneys, especially litigators, are hired to be attack dogs; therefore, any sign of weakness, which is the stigma attached to depression and other mental illnesses, is certainly a career killer. And it is that same killer that leads to lawyers killing themselves.
Many lawyers with depression seem to simply “disappear.” They have the appearance of being present and alert but, in reality, they are miles away. Attorneys with depression tend to “hide.” They avoid human interaction and social situations by pretending to bury themselves in their work when, really, they are not getting any work done at all. They stare at computer screens while their mind has retreated to the dark place that depression has taken them. The two main reasons why lawyers at war with depression pull a disappearing act are fear and shame. The fear of being exposed as not as “together” as everyone thinks they are is a major motivating factor for an attorney to hide their depression. Fear that their eyes will reveal their deep pain is one of the main reasons why attorneys at war with depression avoid social interaction, especially with other lawyers. There is also the very valid fear of professional consequences. If an attorney is accused, or even suspected, of misconduct, regardless of the cause, it is usually reported to the Attorney Grievance Commission (AGC). The AGC then conducts an investigation of the allegations and facts and makes a determination if a formal charge should be filed with the Attorney Discipline Board. While sensitive to the plight of attorneys suffering with depression or other mental illnesses, at the end of the day, prejudice or harm to the client is the deciding factor. Per MCR 9.114, the AGC has the authority to place an attorney on Contract Probation.
Contract Probation is usually imposed when the attorney’s alleged misconduct was not so egregious that it warrants a formal complaint with the Attorney Discipline Board. Contract Probation is not a matter of public record and, so long as the accused attorney adheres to the contract terms, no action will be taken against the attorney’s license nor will any restrictions be placed on their ability to practice. In situations where the attorney asserts mental illness as a defense, their contract probation usually involves a requirement to either seek or continue treatment for their asserted illness. And, in asserting this defense, the attorney forfeits their doctor patient confidentiality as they must report their treatment according to the terms of the contract. The decision to use mental illness as a defense for alleged misconduct must not be taken lightly because the AGC draws a very close correlation between the attorney’s alleged conduct and the claimed mental illness which, naturally, raises the issue of that attorney’s overall fitness to practice. And, of course, the more serious the allegations, the less likely the assertion of mental illness as its cause will be successful and it may even backfire. The mere reporting to the AGC that an attorney suffers from depression or other mental illness without misconduct is not enough to trigger an AGC investigation; however, the “Catch 22” here is that the disclosure of mental illness makes the attorney more susceptible to allegations of misconduct, especially from disgruntled clients who happen to be privy to that information. Fear of even meritless allegations of misconduct and the possible resultant disclosure of mental illness is enough to make any attorney hide their condition. Further, the fear of loss of reputation, and even employment, are also motivating factors to go into hiding.
Usually, with fear also comes shame. Many lawyers disappear for shame in feeling that they are the cause of their own depression or, for the feeling that, if they were stronger, they would not be depressed. There is also the shame caused by fear of professional, or even private, exposure. Shame and guilt are not the same. Guilt is driven by regret of or for an act while shame is driven by a general feeling of negativity towards one’s self. Depression is rage turned inward and there is no absolution or forgiveness for shame. Shame is something that an attorney battling depression must learn to cope with and overcome. Which, in many cases, is a losing battle. Being a lawyer carries with it the assumption and expectation that we are all superheroes, walking around with capes and magic wands in our briefcases. Depression is the “kryptonite” that, in the eyes of many attorneys and the general public, strips an attorney of their super powers. Suicide, as seen by those suffering from depression, is the only escape from the perceived public humiliation of being stripped of their “super powers” and cast out of the “Justice League.”
Lawyers are killing themselves because so many suffer from depression and never seek help. If you or a lawyer you know is suffering from, or exhibiting signs of, depression, please know that you are not alone. Know that you should not be afraid and there is no shame in asking for help. Know that, despite your feels of shame, fear and self-loathing, you are still a superhero. The State Bar of Michigan Lawyers and Judges Assistance Program has a confidential helpline which can be reached at (800) 996-5522. There is also a link on the State Bar of Michigan website under “Member Services” where you can get further information on the program and it also has links to services available in your area. No attorney should have to suffer in silence.
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Agenique Smiley is a native Michigander and a graduate of Cooley Law School. She is a solo practitioner and her firm, Write to Win, PLLC, provides legal research and writing services to attorneys. She also is an adjunct professor at Henry Ford College, where she teaches Legal Research and Writing.
