Judges Have a Crucial Role in Promoting Lawyer Wellness

The practice of law can be a bruising, competitive profession, especially for litigators. Competition for clients, competition for advancement within the law firm, competition in the courtroom, and the overarching stress of attempting to wring positive outcomes out of stressful problems all take their toll on a lawyer’s physical and mental well-being — a fact that the legal profession has only lately begun to address.

We’ve previously written on the disparate and harmful impact wellness issues have on women in the law and on the ethical pitfalls that await attorneys who compromise their physical and mental health in order to meet what they believe are their professional obligations to employers and clients. It’s little surprise that 29% of attorneys disciplined by the Illinois Supreme Court Attorney Registration & Disciplinary Commission in 2020 identified mental impairment or substance abuse as a contributor to their alleged ethical lapses.

And, of course, responding to the ongoing COVID-19 pandemic has exacerbated the stress that normally attends the practice of law.

So far, state attorney regulators and bar groups have addressed the lawyer wellness problem with a somewhat uniform set of policy prescriptions: raising awareness, providing educational resources, and giving legal employers the tools to identify and ameliorate lawyer wellness problems within the firm.

In its groundbreaking 2017 report, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change (PDF), the American Bar Association’s National Task Force on Lawyer Well-Being recognized that judges also have a role to play in promoting the well-being of the attorneys and litigants who appear in their courtrooms. Their recommendations for the judiciary, however, were limited to maintaining courtroom decorum and de-escalating litigation-related hostilities.

To the extent that judges have been enlisted in the lawyer wellness battle, so far their recommended roles have been to take steps to promote civility in their courtrooms and to consider making referrals to mental health professionals when they observe impaired lawyers in court.

In New York, however, judges were recently asked to do more. According to a recent survey by the New York State Bar Association, 84% of New York attorneys believe that judges have a role to play in promoting mental health and relieving stress among the attorneys who practice in their courtrooms.

In survey results released this fall, the NYSBA Task Force on Attorney Wellness reported lawyer recommendations on a host of steps that judges could take to improve the well-being of lawyers in their courts. Among them:

• Continue certain virtual appearances after the pandemic ceases (67.4%)
• Harmonize differing rules and requirements of judges within the same court (58.1%)
• Adjust judicial temperament (53.4%)
• Liberalize adjournment requests where appropriate and not prejudicial (51.7%)
• Reduce emphasis on standards and goals (34.4%)
• Allow letter briefs in certain cases (29.2%)
• Add training for judges to spot stress issues among the bar (27.5%)
• Increase access to court attorneys (22.0%)
• Ensure that judges have ready access to mental health referrals (16.5%)

It’s not often that increased virtual appearances are linked to lawyer wellness in task force reports. And few lawyer wellness task forces have asked judges to adopt any changes at all in their approach to scheduling, sought to harmonization of procedures among judges, or advocated modifying behaviors that fall under the umbrella of “judicial temperament.” According to this survey at least, the most common lawyer wellness task force recommendation — e.g., judicial training on spotting stressed lawyers and access to mental health referrals — were among the least-suggested measures by attorneys themselves.

Lawyers responding to the NYSBA survey were also allowed to elaborate on their views. A summary of lawyers’ remarks published by the NYSBA included the following:

• Judges should be respectful of attorneys’ time.
• Big law firms often bully small law firms — judges should be aware of this and stop giving such deference to large firms.
• Most judges are courteous and accommodating. It is only a few who make life difficult.
• Judges should ask attorneys when they want a case adjourned instead of picking it based on their schedule alone.
• Judges should apply rules equally to plaintiffs’ and defendants’ counsel.
• Solos and small firm attorneys believe judges favor lawyers from larger firms.
• Virtual appearances make law practice more efficient.
• Steps should be taken to improve transparency in the selection/election of judges to foster true diversity and equity across race, ethnicity, gender, and class.

The NYSBA task force made several recommendations, many of which aligned with the survey results. Judges should be trained to treat lawyers with greater dignity and respect, the task force recommended. Judges should also make greater efforts to solicit attorney input on scheduling matters and should be “more flexible” when lawyers request virtual appearances or raise concerns about the feasibility of the court’s scheduling order. The NYSBA task force also called on the judiciary to standardize rules of court wherever possible.

Another jurisdiction that recognized in 2021 the role the judiciary can play in promoting lawyer wellness was Hawaii, where that state’s wellness task force explicitly linked judges’ scheduling decisions to lawyer wellness. In Report Of The Hawaii Task Force On Lawyer Well-Being (PDF), the task force recommended that judicial education programs include information on how judges’ scheduling affect lawyer well-being and that judges be encouraged to accommodate lawyer vacation periods when scheduling trials.

One final recognition of the role judges can play in lawyer well-being appeared in a California Lawyers Association publication, where the authors urged judges to “go beyond mere civility guidelines” and to take affirmative steps to respect attorneys’ time. They recommended that judges avoid setting important matters for Mondays, “which encourage[s] working all weekend to perfect a brief or oral argument.” Another recommendation: Judges should “[d]irectly ask about and consider the needs of parents in dual-job households by offering novel trial timing strategies.”
Perhaps the answer to the lawyer wellness issue is that everyone in the legal community has a role to play in promoting the well-being of everyone involved. Law schools, law firm leaders, judicial officials, lawyers, and even the vendors who serve the legal profession should all ask themselves what they can do to make the practice of law less stressful, more rewarding, and ultimately more productive of efficient and just outcomes for all stakeholders in the American justice system.