Suffering in Silence No More: Will Lawyers’ Stories Lead To Change?

By Brandon Vogel and David King

Suffering in Silence No More: Will Lawyers’ Stories Lead To Change?

1.3.2022

By Brandon Vogel and David King

JRNL_JanFeb22_SufferingInSilence_675

On paper, Daniel Lukasik had it all: he was the rainmaker and managing partner of his law firm, happily married with children and surrounded by friends.

The reality was that Lukasik was terribly lonely, could not sleep or meet his work deadlines and was extremely depressed. When he went to his partners for help two decades ago, they reacted in the way that was common in the profession at that time, blaming him for his own problems and giving advice Lukasik found to be callous and off base.

“My partners were great people, but they did not know better,” Lukasik says now.

Fast forward to today and Lukasik envisions that a conversation about major depression would lead to an entirely different outcome and that his request to take a sabbatical would be quickly granted.

In fact, he says, the legal profession is much more sensitive to the topic of lawyer well-being, and at least part of that increased awareness is due to the New York State Bar Association’s report on attorney well-being, “This Is Us: From Striving Alone to Thriving Together,” which was released in November. Lukasik, who was on the task force that created the report, hopes it will serve as a step toward a systemic remodeling of the legal profession.

Now, those who have advocated for the transformation of the legal profession to prioritize attorney well-being have a larger, sometimes more skeptical, audience to convince. The argument to put lawyer well-being first will have to change minds in the upper echelons of the legal profession, from the heads of major institutions to the leaders of Big Law.

“The national and state conversation is that you are not solely responsible. We all have a role to play in getting help and support for those who need it,” Lukasik said. “I was on an island and now I’m seeing the passion and concerns people have about this topic.”

Elizabeth “Libby” Coreno, co-chair of the NYSBA Task Force on Attorney Well-Being, knew full well that issuing the report would not be the end of the struggle, even though her journey had already been a long one.

There was Coreno’s initial realization many years ago that standards for conduct in the profession just were not normal. “I don’t talk about it very often,” says Coreno, “but I was 25 and I held up a closing to get something fixed and a partner wasn’t pleased and told me I was dumber than a trained monkey.”

That stuck out to Coreno because of how often she’d heard stories about how her colleagues coped with the intense demands of the profession with alcohol.

“It was apparent to me that these patterns of thinking, the system of reinforcement and the common methods lawyers employ to manage their lives are the very pathways that lead to clinical depression, anxiety and addiction,” wrote clinical psychologist Kerry O’Hara, who advised the NYSBA task force.

Burnout and a lack of time for basic self-care were cited as top concerns by respondents to NYSBA’s survey of over 3,000 attorneys. Finding a solution to burnout is a priority for many of the report’s authors, and they believe it should be key for anyone who wants a sustainable legal profession.

But if anything, the COVID-19 pandemic did more to exacerbate those concerns than put them to rest.

For 54 weeks, during the worst of the COVID-19 pandemic, Coreno and O’Hara held a virtual NYSBA support group for lawyers who needed help. It was raw, unflinching and enlightening for those who thought they were suffering alone. People lowered their guard, let others in and shared in ways that might have been previously unthinkable.

The pandemic also, of course, brought a dramatic change in working conditions, making remote work and flexible hours much more acceptable. If all that could happen in a year, then why couldn’t the profession adjust to prioritize attorney health, Coreno reasoned. When the NYSBA report was released in November, Coreno was happy to see a wide-ranging discussion of what changes were possible in the profession, although she did encounter skeptics.

Capping Billable Hours

“New York Wants Firms to Cap Attorneys’ Billable Hours. HAHAHAHAHAHA [Sad Face] ‘I’ll take things that will never happen for $100, Alex,’” reads the headline and deck of the “Above the Law” blog’s post about the task force’s report. The text of the article, however, was a bit more reflective, saying, “High on the list are capping billable hours, encouraging full vacations, and managing client expectation. Now, some of those are doable — hell, Orrick’s already doing its part to make sure everyone there is taking a vacation. But stopping attorneys from billing more than 1,800 hours, when that is the dominant way that Big Law makes its money? That seems like an awfully big ask.”

It does seem like a big ask, especially given that Big Law firms have seen increased demand and profitability during the pandemic.

Recent studies of law firms during the pandemic found that larger law firms were able to better adapt to utilize new technology, take on more clients and make more profits than smaller firms. A Wells Fargo Legal Specialty Group survey of the highest grossing U.S. firms found that billing rates, productivity and demand had increased 6% in the first part of 2021.

On top of that, industry surveys have found increased retention rates at Big Law firms across the country. And yet stories persist of lawyers swamped with work as their colleagues either leave the profession or abscond to greener pastures.

Lisa Smith of Fairfax Associates told Reuters the “proposed cap on lawyer hours is a tough sell in the legal business boom.”

She noted in an interview with the Bar Journal that Big Law continues to enlist young recruits who appear to be fully aware that their large salaries and bonuses are tied to working more hours. “We see a movement in that direction where people are aware of the consequences. The question here is about sustainability. Firms continue to recruit people to do this for a while. They can recruit people out of law school, but can they do it for five years, 10? Before their well-being is impacted and they look for something else? Law firms need to answer that.”

In some cases, those larger salaries and bonuses are designed to combat “The Great Resignation.” The idea that young lawyers, exhausted and aggrieved by their pandemic workloads, are looking for other options has some senior partners and industry analysts concerned. There’s growing fear that the pandemic has given lawyers the chutzpah to demand the working conditions they want.

Patrick Krill, head of Krill Associates, which advises law firms on well-being, addiction and mental health, says he sees the 1,800 cap as unlikely to happen anytime soon. However, he does believe law firms will have to take action to prevent burnout sooner than later. “In addition to resignations and turnover, a lot of employers have lawyers taking leave for mental health or general medical leave. That trend began during the pandemic. There are just more people on leave.” He notes that the tools firms typically deploy to counteract burnout, such as raises and bonuses, aren’t working as well as they once did.

Robert Kamins of Vertex Advisors Group is also skeptical about a cap on billable hours, but he too describes an inflection point – especially in Big Law – where overwhelmed attorneys are beginning to question their investment in the profession. “The pressure under which some of these people are operating is causing them to rethink what they want to do in life. COVID was an existential event that has some veteran attorneys thinking, ‘Hey, I had a nice run, things are changing and it’s time to pack it in.’”

Under normal circumstances, Kamins imagines these veteran attorneys would continue practicing for another decade or more. But COVID has them reevaluating based on the state of their mental health and well-being.

Asked whether he subscribed to prevailing thinking that The Great Resignation is fueled by a new generation that has drastically different values, Kamins noted that every generation finds some way to be frightened of the next. “What is key here is shaped by experienced veteran attorneys peeling off because they aren’t familiar with this landscape.” He says that millennials and Gen Xers grew up relying on technology and not feeling wedded to one space. “Their experience is what matters and that comes into play when it comes to what attracts them to the job as well.”

He says he is increasingly hearing three questions from prospective hires: Can I work remotely? What is the culture of the firm? And what is the compensation?

“They are not leading with compensation,” marveled Kamins. “The almighty dollar seems to be less relevant than ever. Remote access and culture mean everything. Money is not the most important factor and I’ve never seen that before.”

According to Smith and Kamins, there may be a disconnect between NYSBA’s well-being survey respondents and those who work in Big Law. They point out that the majority of NYSBA’s respondents identified as working in mid- to small-size firms. The expectations for those entering Big Law practices might differ drastically from those who seek work at smaller firms or enter solo practice.

Where To Start?

If a cap on billable hours isn’t the obvious place to start, what does make sense? Krill says that it’s implementing a curriculum on well-being in law schools. “We start by getting to law students, by providing them with counseling, all the things the report talks about. If you want to foster long-term cultural change in a profession start with newest generation of lawyers and plant those seeds. Alter their world view in a good way. Change the lens through which they view the practice of law and view their career.”

Smith suggests that a one-size-fits-all option on an hour cap isn’t practical. Instead, she suggests law firms create different tracts so that the attorneys who want the long, involved big cases that demand long hours do that work. But also provide a tract for those who want to apply their skills in a different way and would be more comfortable with a 35-hour week that allows them time for self-care and family.

Kamins says that firms should embrace the report’s recommendations on encouraging attorneys to take all the time off and parental leave for which they are entitled. “Too often people try to be tough lawyers and don’t take the time they need to care for themselves,” he said, noting that firms will need to work harder to implement human resources and career development support structures that make well-being part of the conversation. He also wants to see the New York state court system standardize rules across courtrooms so that attorneys don’t have to jump through hoops depending on which judge they have. “Prepared, unstressed and relaxed attorneys are in the interest of the entire justice system,” he added.

Finally, all three of the consultants we spoke to support the idea of creating a roundtable where all stakeholders can come to the table to discuss well-being best practices and strategize implementation.

Coreno says she’s not surprised that she’s been labeled a “radical” because the changes that she’s advocating for will require drastic recalibration and a commitment to continued vigilance. “I see us on the same arc as the discussion about river pollution. We are at the point where we’re no longer questioning whether there is pollution. It’s been established the river is polluted. The question now is whether we are going to dredge. There is no longer a deafening silence on the topic,” she says.

Lukasik has a similar take, cautioning that change takes time. “This might be something that takes another 10 years. Is it going to happen in six months or a year? That is not realistic, but we will start seeing some changes.”

Coreno and other members of the task force welcome a dialogue with the critics who say that drastically reducing billable hours is not realistic.

“If the solutions proposed in the report are objectionable, then we invite critics to propose something better,” wrote Coreno for the New York Law Journal. “If 1,800 billable hours is too aspirational or law school curricula too entrenched, then we must agree to fund the woefully underfunded Lawyer Assistance Programs tasked with handling the counseling, diversion and rehabilitation of the lawyers impacted by such entrenchment. But we can’t both identify a wrong that needs righting and then simply do nothing.”

Lukasik suggests a good start would be having law firms adopt well-being task forces to ensure that lawyers are getting the help they need.

“Without the infrastructure at a firm or any organization, unless you have that, things do not get done. A one-time Continuing Legal Education speaker is not enough. A good solution is the creation of a lawyer well-being committee that meets regularly or monthly to discuss monthly challenges. What are the unique challenges? What plans and policies make sense to support lawyer health and well-being?”

While Lukasik and Coreno are the public face of the task force, it also has many members in a position to influence policies on lawyer well-being.

Judge Shirley Troutman, who was recently nominated to the Court of Appeals by Gov. Kathy Hochul, chaired the task force’s working group on the judiciary and the court system. Rosemary Queenan, associate dean for student affairs at Albany Law School, chaired the working group on law education, just to name a few of the task force’s members who are able to influence major change.

Troutman said in an interview with the Bar Journal that she decided to chair the task force on the judiciary and the court system because she has witnessed the effects of burnout firsthand. She noted that she regularly sees solo practitioners and those from small firms struggling to balance their workload while maintaining a healthy emotional state. A fix, she says, will have to be discussed, and there won’t be just one solution.

“We need to bring stakeholders to the table, managing partners to the table, [and] solo practitioners, because our best and brightest enter the profession and suffer burnout in a nanosecond to the point that they are not even able to enjoy the fruits of their labor,” Troutman said. “These folks don’t even have time in the day to shop online, so they leave the profession for public service or elsewhere where they can put their degree to use. Losing them hurts the justice system. But we can’t mandate people prioritize these things; they need to have a voice because it affects them and how they do business. It’s not one size fits all.”

Six diverse people sitting holding signs
gradient circle (purple) gradient circle (green)

Join NYSBA

My NYSBA Account

My NYSBA Account