“Committing to the long-term process of improving lawyer well-being will help the profession and its institutions be stronger and more sustainable, and allow individual lawyers to feel not only supported and empowered, but also capable of becoming more dedicated to the legal profession.” – Hon. Todd W. Bjerke, chair of the Wisconsin Task Force on Lawyer Well-Being
What if I told you that one in five lawyers has contemplated suicide at some point in their career? This jarring statistic from a recent mental health survey by Law.com and ALM Intelligence is just the latest in a long line of statistics that paint a dismal picture of lawyer well-being.1
The bad news doesn’t end there. The same study showed that 67% of respondents had anxiety, 44% experienced isolation, 35% dealt with depression, 9% had issues with alcohol, and 2% had drug problems – all numbers that are cause for serious concern.
From actors to singers to athletes, mental health has increasingly been in the spotlight in recent years.2 While many organizations have started upping their efforts to address and enhance employee well-being, the legal industry has lagged. A 2017 report from the National Task Force on Lawyer Well-Being titled The Path to Lawyer Well-Being made clear that these issues “can no longer be ignored” and called on the legal community to get serious about lawyer mental health and substance abuse.3 As more and more studies continue to uncover concerns about attorney mental health, the calls for change in the industry are reaching a crescendo.
The fact that lawyers are unhappy, to put it mildly, is no secret. Law firms have long known that this is a major problem. Decades ago, for example, when lawyers were sworn in to practice law in New York, the admission ceremony routinely included a speaker who warned new lawyers that members of the legal profession had rates of addiction and alcoholism twice the rates of the general population.
Recently, there has been some progress, and the National Task Force report is a catalyst for change. To date, 208 law firms have signed the American Bar Association’s (ABA’s) well-being pledge.4 Further, 36 states have formed task forces or commissions to promote lawyer well-being initiatives, including Wisconsin.5 [An article about the work of the Wisconsin task force appears elsewhere in this issue of Wisconsin Lawyer.] Finally, many law firms have started hiring directors of lawyer well-being, whose role is to focus on the mental health issues affecting their employees.6
Nonetheless, these efforts’ ultimate effect on how law firms deal with mental health remains to be seen, and we know there’s more work to be done. Not all lawyers believe the efforts currently being made by firms, however well intentioned, will be sufficient. Criticisms include that they “lack the teeth to address the toughest of the issues,” are “little more than window dressing – a way for firms to check a box and show they are making a difference while avoiding the more complex process of a true reckoning,” or even that they’re “like putting a Band-Aid over a bullet wound,” as one associate bluntly put it.7
So, what now? Well, there is good news and bad news.
The bad news is that many lawyers are stressed out, their anxiety levels have only been exacerbated by the pandemic, and they think their law firms aren’t doing enough to heed the warnings about employee well-being and committing to long-lasting change.8 The good news, though, is that it’s not too late to start making real changes in the ways mental health is addressed in the legal industry. Better yet, these changes don’t have to be massive or all at once – small or incremental changes can be incredibly powerful over time.9
The catch, however, is that if lawyers want to see law firms start to prioritize lawyer well-being, they might need to try a new approach to talking about why it’s important.
Why Are Law Firms Still Ignoring Lawyer Well-Being?
Let’s be honest: Law firms are businesses, and the primary goal of businesses is to make money.
Many past arguments for lawyer well-being have been rooted in what some might call “sentimentality,” which often holds little sway when it comes to people focused on dollars and cents. Simply put, moral arguments have been dismissed when the targets of those arguments “have not had a financial incentive to address the problem.”10
Law was once portrayed as a noble calling for people who wanted to dedicate their lives to fighting for right over wrong. For the most part, those ideals are far in the rear-view mirror. Today’s law firms are businesses that are laser focused on profitability. In the course of maximizing that profitability, lawyers too often become collateral damage, their mental and physical health falling by the wayside. Rather than being treated as human beings with needs, lawyers are often viewed by their employers as fungible commodities that exist to generate billable hours and fees at any cost.
Whether the number of lawyers on staff goes up or down, the profit goals at firms remain the same or increase. This imbalance leads to burnout, mental distress, and more for the lawyers who remain to meet billing targets. These effects, in turn, result in less productivity, greater attrition, a decreased ability to attract top talent, and a number of other costs that ultimately end up decreasing firm profitability.11
While the core argument for improving lawyer well-being is rooted in effects on individuals, there’s also a clear connection to firms’ bottom lines. If law firms are ignoring the human driver for well-being, it’s time to start talking about how focusing on lawyer well-being isn’t just the right thing to do, but the right thing to do for business.
Why Law Firms Should Care About Lawyer Well-Being from a Business Perspective
To a large extent, increased law firm profits have come at the expense of lawyers’ mental health and general well-being. The same survey that found that nearly one-fifth of legal professionals had contemplated suicide in their careers showed that 74% of respondents tied their mental health issues directly to their work environment, with the top concerns including constantly being on call, pressures to amass billable hours, client demands, lack of sleep, and inadequate staffing.12
All of these factors decrease lawyers’ ability to work efficiently and deliver reliable work product, negatively affecting their firms’ bottom lines.
The Hidden Costs Related to Mental Health
Although lawyer well-being overall is undeniably concerning, how does it actually relate to firms’ profitability? The answer lies in the concrete costs associated with poor mental health that are too often overlooked.
1) The Costs of Absenteeism and Presenteeism. Burnout, lack of sleep, substance abuse, and many other issues decreasing lawyer well-being can lead lawyers to be absent from work at higher rates than they otherwise would be. It’s not hard to make the connection between increased absenteeism and decreased efficiency, work product, and billable hours – if lawyers aren’t there (wherever the workplace is), they can’t do their work, and that negatively affects profitability.
What’s harder for many to understand, however, is “presenteeism,” a term for the loss of productivity that occurs when employees are physically present at work but not functioning to their full capabilities.13 Poor well-being and mental health issues are a significant cause of presenteeism, leading to decreased efficiency and a higher chance of errors.
Presenteeism and absenteeism result in costs that can be quantified. A study published 20 years ago showed that presenteeism and absenteeism attributable to depression were costing U.S. employers $44 billion per year, and it’s reasonable to expect that those numbers have only gotten worse in the ensuing two decades, as the stigmas surrounding mental illness have slowly started to erode.14
Lack of sleep, cited by many lawyers, is another major contributor to presenteeism. Studies have shown that sleep deprivation causes a number of issues that are at odds with the efficiency that law firms and their clients demand, including decreases in cognitive functioning, memory, and logical reasoning ability.15 Because so much of current law firm profitability relies on the billable hour, placing demands on attorneys that result in excessive presenteeism and, in turn, decreased productivity and efficiency, comes with significant measurable costs.
2) The Costs of Attrition. Absenteeism and presenteeism are just the beginning of the story. Eventually, mental health issues left unaddressed can lead burned-out lawyers to quit entirely. While law firms might like to think of their attorneys, particularly associates, as interchangeable, replacing lawyers is a costly endeavor.
According to a 2017 NALP Update on Associate Attrition, replacing an associate can cost a firm from $200,000 to $500,000, depending on seniority.16 The most recent numbers from the National Association for Law Placement show that associate attrition rates are higher than ever – 26% in 2021, up from 16% in 2020.17 The longer well-being is ignored, the higher attrition rates will be. Multiplying that $200,000-$500,000 across several departing lawyers each year quickly adds up to astronomical costs that can significantly hurt a firm’s bottom line.
3)The Costs of Decreased Recruiting Power. Many law firms have a reputation for being old-school institutions, run by a pull-yourselves-up-by-your-bootstraps generation that’s more likely to stigmatize mental health issues and less likely to be sympathetic to idealistic or worthy arguments for well-being. Newer generations of lawyers – the future of today’s law firms – tend to not fit this stereotype.
The junior ranks of law firms are now made up of Millennials and members of Gen Z, who, generally speaking, are both more attuned to mental health issues and more likely to admit to experiencing them. It should come as no surprise, then, that these generations of lawyers are prioritizing flexibility and work-life balance when choosing their employers.18 In fact, the top factor in considering law firm employment offers cited by respondents in American Lawyer’s 2019 Summer Associates Survey was work-life balance.19
If today’s law firms want to be able to recruit the best new lawyers and the top students graduating from law school, they need to be able to show that they can meet these priorities and offer a workplace that cares about lawyer well-being; if they don’t, recruitment efforts will suffer. Failing to hire good lawyers will make law firms less competitive in a tight legal market, and these firms soon will see clients taking their dollars elsewhere.
How Focusing on Well-Being Offsets These Costs
Acknowledging that lawyer well-being is a legitimate concern, whether for principled or financial reasons, is vital to improving or eliminating the conditions that are negatively affecting mental health and morale.
Some data indicate that employees who are engaged in their work generate more revenues for their employers.20 Given that absenteeism, presenteeism, and attrition are all counter to being engaged with one’s work, it’s not hard to understand how eliminating these problems – namely, by addressing the poor well-being that is their root cause – is good for firm profitability.
Prioritizing lawyer well-being is also a key way to curb attrition and the costs that come with it. The National Law Review recently summed up the issue well, saying, “[t]he remedy to the talent issue that companies are facing seems straightforward: reduce employee attrition by making your firm a more attractive place to stay.”21 Among the ways listed to make a firm more attractive are the following: invest in employees and show them that the firm truly cares about their well-being by offering flexible work environments, providing mental health resources, and acknowledging personal sacrifices, to name a few. Reducing attrition not only will decrease the significant monetary costs of replacing attorneys but also comes with the benefit of allowing firms to build and retain institutional knowledge that directly helps clients, opening the door to more revenue and stronger client relationships.
Finally, demonstrating a concrete commitment to employee mental health and creating a work environment that fosters well-being will go a long way toward increasing a law firm’s ability to recruit talented individuals. Millennial and Gen Z lawyers and members of generations to come are the future of the legal industry, and failing to create the kind of workplace they want to be a part of will mean law firms will miss out on a significant portion of the diverse and talented lawyer pool that’s looking for jobs today.
The legal profession has long had serious problems with mental health and well-being, whether or not we want to admit it. It’s past time for things to change.
If the moral arguments for improving well-being aren’t resonating with enough people to make that change a reality, perhaps the financial realities of failing to take action will.
Meet Our Contributors
What is your best advice for new lawyers?
My best advice for new lawyers is to be direct in your communications, set appropriate expectations, and teach people how you want to be treated.
For instance, a lot of lawyers struggle with work-life balance. Yes, we are in demanding organizations serving clients who have pressing needs. However, there are times where certain projects can wait. If you are in fact too busy to take on a priority project, let your requesting attorney know that up front rather than just saying yes or, even worse, “ghosting” them. Often, we feel pressured to say yes for fear of not receiving additional work or potentially ticking off the senior partner but then we’re too busy to get to it. Or we just disappear and don’t respond to emails when the partner is seeking help.
Here’s a real-life example of managing expectations. Recently, I was working with a client who is a junior associate. At the outset, he set expectations with his supervising partner that generally he does not work weekends, unless it’s an urgent project. While many attorneys in my generation (Gen X) would not have done this as a new attorney themselves, they tell me that they greatly respect younger attorneys who are able to set boundaries, keep those with whom they are working informed, and still meet the clients’ needs. It’s a tricky balance but it can be done.
Julie Bonasso, RYP Global LLC, Junction City
Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email klester@wisbar.org. Check out our writing and submission guidelines.
Endnotes
1 Debra Cassens Weiss, About One-Fifth of Lawyers and Staffers Considered Suicide at Some Point in Their Careers, New Survey Says, ABA J. (May 10, 2022), www.abajournal.com/news/article/19-of-surveyed-lawyers-and-staffers-said-they-considered-suicide-at-some-point-in-careers.
2 Julie Bonasso, Naomi Osaka and the Power of No, 94 Wis. Law. 53 (Dec. 2021), www.wisbar.org/NewsPublications/WisconsinLawyer/Pages/Article.aspx?Volume=94&Issue=11&ArticleID=28789.
3 National Task Force on Lawyer Well-Being, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change (Aug. 14, 2017), https://perma.cc/MB95-V6HE.
4 ABA, Working Group to Advance Well-Being in the Legal Profession, https://perma.cc/Y4MH-CT4K (last visited June 13, 2022).
5 Institute for Well-Being in Law, https://lawyerwellbeing.net/ (last visited June 13, 2022). The Wisconsin Task Force on Lawyer Well-Being Report & Recommendations, as presented to the State Bar Board of Governors in December 2021, is here: tinyurl.com/2kyvvvad.
6 Link Christin, Meet Your Law Firm’s New Director of Lawyer Well-Being, www.attorneyatwork.com/new-director-of-lawyer-well-being/ (last visited June 13, 2022).
7 Jarrod F. Reich, Ctr. on the Legal Prof., Capitalizing on Healthy Lawyers, The Practice, https://thepractice.law.harvard.edu/article/capitalizing-on-healthy-lawyers/ (last visited June 13, 2022).
8 Nicole Black, ABA Survey: Lawyers Are Stressed Out, Above the Law (Aug. 5, 2021), https://abovethelaw.com/2021/08/aba-survey-lawyers-are-stressed-out/.
9 James Clear, Continuous Improvement: How It Works and How to Master It, https://jamesclear.com/continuous-improvement (last visited June 13, 2022).
10 Reich, supra note 7.
11 Id.
12 Weiss, supra note 1.
13 Paul Hemp, Presenteeism: At Work – But Out of It, Harvard Bus. Rev. (Oct. 2004), https://hbr.org/2004/10/presenteeism-at-work-but-out-of-it.
14 Walter F. Stewart et al., Cost of Productive Work Time Among US Workers With Depression, JAMA Network (June 18, 2003), https://perma.cc/YD9Y-8Z4D.
15 Debra S. Austin, Killing Them Softly: Neuroscience Reveals How Brain Cells Die from Law School Stress and How Neural Self-Hacking Can Optimize Cognitive Performance (March 8, 2014), 59 Loy. L. Rev. 791 (2013), U. Denver Legal Studies Research Paper No. 13-12, https://ssrn.com/abstract=2227155.
16 Steven Rushing, The Cost of Law Firm Associate Turnover, Above the Law (May 13, 2022), https://abovethelaw.com/2022/05/the-cost-of-law-firm-associate-turnover/.
17 Kathryn Rubino, Associates Left Law Firms in Droves Last Year. Why’d They Go?, Above the Law (May 2, 2022), https://abovethelaw.com/2022/05/associates-left-law-firms-in-droves-last-year-whyd-they-go/.
18 Hillary Hoffower, Gen Z and Millennials Actually Want the Same Things at Work. But Gen Z Has the Upper Hand, Bus. Insider (Nov. 6, 2021), www.businessinsider.com/millennials-versus-gen-z-workplace-trends-flexibility-work-life-balance-2021-11.
19 Dylan Jackson, The 2019 Summer Associates Survey: Wined, Dined and Worried, Law.com (Sept. 23, 2019), www.law.com/2019/09/23/the-2019-summer-associates-survey-wined-dined-and-worried/?slreturn=20220513110032.
20 James K. Harter et al., Business-Unit-Level Relationship Between Employee Satisfaction, Employee Engagement, and Business Outcomes: A Meta-Analysis, J. of Applied Psych. (2002), https://www.factorhappiness.at/downloads/quellen/s17_harter.pdf.
21 Stefanie M. Marrone, What Can Law Firms Do to Recruit and Retain Their People During the Great Resignation and Beyond?, Nat’l L. J. (Feb. 15, 2022), www.natlawreview.com/article/what-can-law-firms-do-to-recruit-and-retain-their-people-during-great-resignation.
» Cite this article: 95 Wis. Law. 47-50 (July/August 2022).
