Psychological Distress in the Legal Profession

Psychological distress in the legal profession Chrissie Taylor In 2004, one time commercial lawyer turned legal academic and therapist, Susan Daicoff wrote ‘Lawyer, Know Thyself’1, enquiring into the relationship between lawyer personality and lawyer distress in the USA. The published abstract for chapter 6 of this book reads: “Lawyer distress is used to refer collectively to mental distress and dysfunction, alcoholism and substance abuse, and career and job dissatisfaction. This chapter explores possible explanations of lawyer distress, such as the lawyer personality, the non‐lawyer personality, the difficult environment of modern law practice, or some combination therein. External, environmental pressures are compared with internal, psychological factors. Specific lawyer attributes that may contribute to lawyer distress are discussed. Finally, aspects of typical and atypical lawyers are briefly examined.”2 This chapter specifically invites research ideas because Daicoff’s overall exposition proves inconclusive on her own admission. So, as a specific enquiry into why lawyers are, maybe or will be distressed, when undertaking a legal career, I aim to follow Daicoff’s thinking very closely by way of answering the above question via reference to her published explanations3 while also exercising some criticisms that may prosper more useful, if not more meaningful, research criteria. As a previously practicing commercial lawyer4 in the USA, Daicoff’s perspectives may have been adversely affected by her own experiences in commercial law practice in the United States. So, I am concerned that an Daicoff wrote another book four years later entitled ‘Stalking the Walking Wounded’ (2008) . Online access 2.1.16 : PsycINFO Database Record (c) 2015 APA, all rights reserved 3 Presented as core reading material concluding this academic module. 4 Daicoff’s legal C.V. profile does seem to have been only in the commercial/corporate sector of law practice. Page 1 of 14 1 2 increasing contemporary dissatisfaction with the workplace in general, affecting everyone, may have been overlooked in the context of an overall American cultural tendency for materialistic values. I will not make further reference to Daicoff’s USA‐centric perspectives, as we are all in an increasingly global cultural context, informed by American values, and I will aim to focus on the law as a universally practiced profession of great importance to everyone. Daicoff opens chapter 6 by advising us that one in five lawyers [in the U.S.A.] are ‘impaired enough to require clinical intervention’. And that an ‘alarming degree of mental, psychological and emotional distress’ is ‘potentially devastating’ and not just its consequential failure to provide reliable advice and assistance to individual clients.5 Daicoff suggests that without looking into what ails lawyers that the legal profession as a whole is unsatisfactory, although her actual choice of word is ‘incomplete’6. Daicoff asks what causes ‘lawyer distress’ and as a subject that appears to have greatly occupied research in the USA from the 1960’s onwards, she posits ‘job dissatisfaction, marital dissatisfaction, personal career conflicts, lack of professional autonomy’ as factors. Daicoff also employs a Myers‐ Briggs characterization of the ‘feeling’ and ‘perceiving’ type of lawyer and suggests these qualities as ‘atypical’ in the law because they partake of the “moral decision making style known as ‘the ethic of care’”. This is as untrue a description of lawyers at large, as is it is that ‘feeling’ and ‘perceiving’ types never demonstrate extraordinary forms of selfishness and absolutely no ‘ethic of care’ for others. This type of category mistake is made so often by Daicoff, I suspect it can only be as a result of trying to fit her entirely sincere ‘lawyer distress’ enquiry into an entirely unsatisfactory Myers‐Briggs / Diasthetic model of research criteria and thinking. 5 6 Para 1 (P.141) Described in chapter 4. Page 2 of 14 In defining what ‘lawyer distress’ actually means, Daicoff initially employs the three criteria of i) ‘mental distress and dysfunction’, ii) ‘alcoholism and substance abuse’, iii) ‘career and job [dis]satisfaction’. However, Daicoff remains preoccupied with ‘lawyer personality’ typology as central to the “inordinate levels of distress plaguing the legal profession”, while openly admitting that empirical data to date provides ‘inconclusive and conflicting’ results, and that, “… additional research is needed, and the reader [should be] left to form his or her own conclusions”.7 Daicoff’s looks at ‘Law School Pressures’8 and describes them as ‘inhospitable’ because the ‘process of learning’ obliges students to ‘think like a lawyer’. Apart from this being a strikingly banal thing to say, Daicoff suggests that being schooled in Socratic teaching methods and a ‘heavy work load’ emphasizes ‘professionalism rather than humanism or philosophy’9. The irony of suggesting Socratic method is devoid of philosophy, and that this method of teaching is ‘intimidating ’ and provides a ‘lack of feedback’ is also paradoxical. (As a philosophy graduate) I would like to point out that it is central to Socratic method to invite someone to ‘think’ and ‘for oneself’ in the cultivated absence of any didactic answers. This de facto aspect of educating a youthful mind (predisposed to ‘black and white’ or ‘right or wrong’) is nevertheless being suggested as a primary cause of anxiety in first year law students. And as Freud suggests that ‘anxiety’ is part and parcel of the human condition, whether we like it or not, I question the kind of psychological ‘nanny‐State’ tools probably being employed here. Daicoff quotes ‘general empirical psychology’ as associating uncertainty and ambiguity with increased levels of stress10 and that “therefore the resulting uncertainty and ambiguity [of law school] must create stress”.11 If this Para 4 (P.142‐3) Para 3, (P.143) 9 Phyllis W. Beck & David Burns (1979), Anxiety and Depression in Law Students: Cognitive Intervention ‐ see first footnote Daicoff, (2004) 10 Lawrence Silver (1968), ‘Anxiety and the first Semester of Law School’ (see second footnote Daicoff, (2004) 11 Para 3, (P.143) Page 3 of 14 7 8 circular argument wasn’t quite so trite, Daicoff’s reference to the ‘ambiguity of the law’ might well go entirely unnoticed. I would suggest that the essence of emotional maturity informing intellectual expertise (i.e., academic education of a reliable ‘professional’) is the very need to teach them to recognize uncertainty and ambiguity as an unavoidable feature of everyday life, when working through challenging problems to be resolved as best as possible. As such, to separate ‘typical’ or ‘atypical’ lawyers into the either/or type categories of ‘thinkers’ and ‘feelers’ is palpably ridiculous. Daicoff may be more concerned with an individual’s personal happiness than their intellectual maturity when faced with the onerous duties of responsibly practicing the law as a qualified lawyer. If the USA has been guilty of turning the legal ‘profession’ into a ‘materialistic trade‐craft’ for ambitious individuals focused only on achieving personal wealth (not societal wellbeing), as Daicoff describes, it’s not surprising, therefore, that American lawyers are in trouble both privately and publicly. Daicoff depicts the law school environment as cultivating a sense of “learned helplessness”. While it’s not semantically clear whether she means a ‘learn‐ ed’ sense of recognition of the monumental task of implementing the law well, or just as an acquired sense of feeling lost. But, she raises the lack of social support and collegiate camaraderie at law school12, due to the competitive nature of students (denoted by Daicoff as a ‘typical’ trait), as a likelihood for ‘social isolation’. This, I believe, is a critical point to perhaps research further in relation to the nature of ‘social responsibility’ inherent to practicing the law conscientiously. I imagine that social isolation can, and does, lead to self‐preoccupation(s). And that without reliable and regular social and recreational involvement(s) with others, it probably would be difficult to feel socially caring, as opposed to disdainful. Feeling socially and emotionally isolated as a lawyer can only lead to private resentments and 12 Para 4 (P.143) Page 4 of 14 these, not legal procedure, are far more likely to inform a lack of working empathy (in any professional or working context). Daicoff references “…the fact that higher achieving law students tend to exhibit a more pessimistic outlook on life” and “that success in law school is associated with personality traits that predispose one to develop depression”13 & 14. In this regard, Daicoff highlights how a law school environment “appears to intensify… tendencies to ignore emotions… interpersonal concerns… and warm interpersonal relations…”15. Again this appears as a diasthetically driven assumption. And contextualizes incorrectly, and prejudicially, by associating the ‘problem solving’ legal process as a causal feature to a lack of ‘feeling’. 16 Do all ‘thinkers’ lack ‘feeling’? Do all ‘feeling’ types lack the ability to ‘think’ well? Perhaps the notoriously materialistic value system in the United States, along with an advertising ‘trade’ mentality, ambitiously focused on commercially competitive private wealth creation, are driving forces to internal personal distress factors, not a “Law school’s “exclusive emphasis on “objective thought, rational deduction, and empirical proof” “17 & 18. To blame rational thought in rigorous legal training as part of a causal chain informing widespread ‘lawyer distress’ is absurd, and as ‘unprofessional’ as asking a medical school to be less meticulously unforgiving of mistakes that should never be made with a scalpel ! The diasthetic nature of Daicoff’s research approach in suggesting that to “intensify a tendency to rely on analytical, rational thought to make decisions, rather than focusing on emotions or the humanistic consequences of the decision”19 is as potentially misleading as it would be to instruct a surgeon to be more emotional when Satterfield, Monahan & Seligman (1997) ‘Law School Performance Predicted by Explanatory Style’(see seventh footnote Daicoff, (2004) 14 Para 1 (P.144) 15 Para 2 (P.144) 16 Ibid. 17 Benjamin, Kazniak, Sales & Shanfield (1986), (see tenth footnote Daicoff, (2004) 18 Para 3 (P.144) 19 Richard (1994) ‘Psychological Type and Job Satisfaction Among Practising Lawyers in the United States’, (see eleventh footnote Daicoff, (2004) Page 5 of 14 13 cutting cleanly, hygienically and efficiently into someone’s flesh when aiming to save their life. The case made for a ‘exclusive reliance on thinking’ – while on the job ‐ as contraindicative or damaging to emotional capacity (as opposed to the ability to contain emotion wisely) is a particularly troubling category mistake. However, ‘over‐reliance on thinking as a lack of life balance’ leading to ‘further isolation and distress’ simply states the obvious ‐ for anyone, in any walk of life, not just lawyers.20 Daicoff claims that law encourages “extrinsic rewards”21 not ‘intrinsic values’ leading to a lack of intimacy, personal growth, job satisfaction and emotional wellbeing.22 And that pre‐law student values face pressure placed upon them by law school to develop a ‘lawyer persona’ is also to suggest that an ‘atypical’ law student or lawyer with an ethic of ‘care, altruism, public interest and strong intrinsic motivations’ cannot survive law school… without ‘inner conflict’23. In my personal experience, in the UK, Lord Denning24, Helena Kennedy QC25, Nicholas Bowen QC26 clearly prove otherwise and have not in any way “… become isolated, alienated… [or] ostracized…”27. When Daicoff adds that ‘women are more likely to be in this category’ while also stating that the “percentage of women in the law has steadily increased since 1970”, drops another glaring contradiction into a diasthetically‐confused mix. Why would women, supposedly doomed to isolation, alienation and ostracization, increasingly choose to study and practice law? Para 3 (P.144) Merriam Webster dictionary defines ‘extrinsic’ simply as “not part of something : coming from the outside of something” and more fully as “not forming part of or belonging to a thing : extraneous” and/or “originating from or on the outside; especially : originating outside a part and acting upon the part as a whole”. 22 Para 4 (P.144 – 145) 23 Para 2 (P.145) 24 http://www.theguardian.com/uk/1999/mar/06/claredyer1 25 http://www.doughtystreet.co.uk/barristers/profile/helena‐kennedy‐qc 26 http://www.doughtystreet.co.uk/barristers/profile/nicholas‐bowen‐qc (a family cousin of mine). 27 Para 2 (P.145) Page 6 of 14 20 21 Clearly, exerting pressure on law students is a necessary aspect of preparing them for the societally conscientious pressures of actual law practice, as a serious societal responsibility. And it is to state the obvious that this ‘may, at least in part, explain law student distress’ as it will no doubt challenge the purpose and goal of studying the law. In my understanding of this first of four ‘explanations’, I am led to ‘my own conclusions’ in that Daicoff actually believes that law school teaching methods are bad and actively make students pessimistic and isolated because law school promotes competitive and materialistic career ambitions (depressive of students’ pre‐law natural altruism), rather than a general psychosocial conditioning in childhood in the USA for materialistic/personal/competitive and self‐centered ambitions. I am concerned that a somewhat over‐protective attitude towards childish dreamers (as atypical ‘feelers’) dominates the narrative here. As opposed to a serious professional and pragmatic challenge to meet and master a reliable, rigorous and complex standard of knowledge, skill and aptitude in responsible and accountable service to others (pejoratively suggested as typical of the lawyer ‘thinker’ trait). A far more broad minded psychosocial review of the American culture of materialism itself preoccupied with personal (not collective) success, on both sides of the educational and professional divide is undoubtedly needed here. Daicoff’s second explanation of ‘lawyer distress’ focuses on law practice pressures. Apart from technological increases in speed of communication alongside more competing law practices, she confirms “… the profession’s metamorphosis into a trade”28 thus leading to ‘nasty unethical behaviour’ and the ‘abuse of fiduciary obligations’29. Why Daicoff defaults to legal education’s failure to ‘instill or even preserve moral sensibilities’ if the ‘mechanisms to discipline lawyers have failed’30 is strange in light of a widespread ‘free market’ commercial culture in the American psyche (not a Para 4 (P.146) Para 5 (P.146‐7) 30 Ibid. 28 29 Page 7 of 14 more conscientious professional/vocational sense of duty to others). A highly competitive trade culture such as the USA (in which anyone can make something of themselves) must be a major top‐down psychosocial issue that fully encapsulates any bottom‐up ‘personality trait’ concerns. And, of course, in this context how is it possible for it to be ‘fun’ to practice the law31? Even if we assume incorrectly practicing the law should be ‘fun’ as opposed to serious. Daicoff frequently refers to psychiatrist, Dr Amiram Elwork, in her explanatory thinking. The unsatisfactory nature of broad‐spectrum diasthetic dispositional theory32, however, is that it often produces inconclusive outcomes33. This is more than adequately summed up when Daicoof quotes Elwork (1995) as blandly saying, “… some lawyers are more vulnerable to… external stressors than others”34 & 35. And amplifies the overall tendency in this chapter to state the obvious, for everyone, not just lawyers. Daicoff’s fourth explanation for ‘lawyer distress’ is entitled ‘The Lawyer Attributes’ Contribution’. Sadly, however, she remains within a questionable diasthetic framework of thinking, while generally “accepting that lawyer distress is multiply caused” and “… a product of the environment… and certain internal attributes…”36. However, Daicoff does quote research that identifies more relevant considerations regarding the ‘metamorphosis of the legal profession into a trade’ as threatening the justice system via the lack of lawyer engagement in preserving judicial independence from the State: Para 1 (P.147) American Psychological Association abstract: “… rendering some individuals more malleable or susceptible than others to both negative and positive environmental influences… limits of the evidence, statistical criteria for distinguishing differential susceptibility from diathesis stress, potential mechanisms of influence, and unknowns in the differential‐susceptibility equation.” 33 Unless a fine‐grained/specifically relevant contextually known set of details is provided. 34 Elwork, A. (1995), ‘Stress Management for Lawyers’, see 26th footnote Daicoff, (2004) 35 Para 5 (P.148) 36 Para 3 (P.149) Page 8 of 14 31 32 “The authors interviewed over 150 judges, politicians, civil servants and practitioners to understand the day‐to‐day processes of negotiation and interaction between politicians and judges. They conclude that the greatest threat to judicial independence in future may lie not with politicians’ actively seeking to undermine the courts, but rather with their increasing disengagement from the justice system and the judiciary.” 37 While Daicoff still considers ‘drive and ambition’ can only lead to ‘continual disappointments’38, if not ‘pessimism and competitively fostered depressive thoughts’39 informing clinical depression, she continues to stress that a ‘must win’ and ‘fear of losing’ attitude propels the legal profession (in the USA), rather than not. This almost perfect description of a commercially (trade) driven industry ethos, rather than a professional culture, strikes me as significant and worthy of very serious international concern. Daicoff quotes Beck & Burns (1979) with regard to ‘cognitive distortions’ as influential in lawyer anxiety and depression as a ‘… bleak outlook’ depicting, in my opinion, the kind of commercial anxiety prevalent in any increasingly competitive and over‐heated marketplace. The law is not, and needs must not be treated as a ‘marketplace’. It is the most important societal instrument for the ‘civilization’ of humanity, in defense of anarchy. With this in mind, Daicoff translates law student ambition(s) as devoid of ethos of ‘service to others’ and this concern is strikingly clear throughout Daicoff’s disposition of the troubling problem at hand. Namely, that altruism, care and empathic service to others is not thriving in the legal system (in the USA). Employing Elwork (1995), Daicoff provides a very long list of ‘personality traits that intensify lawyer distress’, and the extent of which ‘equals the 37 Gee, g, Hazell, R, Malleson, K & O’Brien, P (2015), Useful summary of their very recent publication on judicial independence: http://www.cambridge.org/gb/academic/subjects/law/constitutional‐and‐administrative‐ law/politics‐judicial‐independence‐uks‐changing‐constitution 38 Para 2 (P.150) 39 Para 3 (P.150) Page 9 of 14 degree of disappointment in practicing law’. Such as lack of flexibility, intolerance for change, lack of life balance, belief that destiny cannot be controlled, hostility, cynicism, aggression, fear, low self‐esteem in contrast to ‘altruistic social concerns’.40 Pinpointing lawyers with these traits as “likely to experience trouble” echoes the findings of the Terman study41 that “found a higher level of general neuroses among less successful attorneys” and Retch (1990) views on their “awkwardness, paranoia and insecurity”42 These presumptions of ‘personality traits’ are clearly ‘symptoms’ of distress rather than personality traits. Daicoff’s description of lawyer’s “overweening need for achievement, their preference for dominance, and their competitiveness [causing] workaholism and perfectionism”43 certainly clarifies, to me, the symptomatic result of the traumatic experience of entering a profession (that is vocationally essential to the wellbeing of society) only to find oneself expected to develop one’s intellectual skills and working persona as if they are only a set of financial investments to be ruthlessly traded on a highly aggressive and competitive stock market ! As Daicoff describes, this can only lead to a “need for external rewards” by way of emotive compensation to a ‘devastating [loss of] self worth’ in the ‘maladaptive’ practice of the law. 44 Quite rightly, Daicoff suggests that “additional research is clearly necessary to conclude why research [to date] is inconclusive….”45. My heartfelt recommendation is that any kind of Myers Briggs46 format or diasthetic Para 5 (P.151‐2) Schnedman, E.S. (1984), ‘Personality & “Success” Among a Selected Group of Lawyers’, see 38th footnote Daicoff, (2004) 42 Para 2 (P.152) 43 Para 4 (P.152) 44 Para 4 & 5 (P.152) 45 Para 2 (p.157) 46 Krznaric, R. (2013): “The interesting — and somewhat alarming — fact about the MBTI is that, despite its popularity, it has been subject to sustained criticism by professional psychologists for over three decades. One problem is that it displays what statisticians call low “test‐retest reliability.” So if you retake the test after only a five‐week gap, there’s around a 50% chance that you will fall into a different personality category compared to the Page 10 of 14 40 41 model can only lead to circular arguments and unsatisfactory research outcomes. For example, when Daicoff says that ‘distress’ could be an “outcome of a ‘preference for a particular trait”47 she demonstrates the kind of research problem here. Even the dictionary can and does define ‘trait’ as characteristic of ‘abnormality’. So, anyone suggesting someone can actually have a ‘preference’ for abnormality (a trait) is trying to explain abnormality as the cause of abnormality. When Daicoff addresses this, finally, in her fourth scenario entitled ‘Lawyer is Unrelated to Personality Traits (And Is Instead Related to Shifting Values)’, we begin to see some valuable clarity. Namely, “distress is related to a shift in intrinsic values… ”. However, rather than scapegoat law schools, as “… the researchers of the missing link study”48 said, “… law schools should support intrinsic motivation… and promote optimum human values”49. Therefore, I agree with Daicoff that teaching the law as a societal vocation (profession) not as a competitive commercial career (trade) is essential. And as Daicoff proposes, “… we must encourage law students and lawyers to find and maintain a value system that depends on internal rewards… instead of… fame, success, money… and… adherence to one’s own personal standards of integrity and excellence…”50 Daicoff then stresses, quite rightly, that this ‘points to a monumental and difficult task’ in ‘changing the legal profession’s collective values’.51 The good news, however, that Daicoff leaves us with is that “… as implausible as it might seem, the value system of the world has been changing over the past decade or so.”52 first time you took the test.” Online access: http://fortune.com/2013/05/15/have‐we‐all‐been‐duped‐by‐the‐ myers‐briggs‐test/ 47 Para 1 (p.158) 48 Chusmir, L.H. (1984), ‘Law & Jurisprudence Occupations : A Look at Motivational Need Patterns’, see 35th footnote Daicoff (2004) 49 Para 5 (P.158‐9) 50 Para 1 (P.159) 51 Para 3 (P.159) 52 Para 4 (P.159) Page 11 of 14 From this ‘practical standpoint’, Daicoff reassures us that a ‘number of non‐ traditional approaches to lawyering and justice’ are ‘consistent with moral lawyering or caring lawyering’. And while I would still be highly critical of Daicoff’s ongoing use of ‘typical’ (thinking) or ‘atypical’ (feeling) personality traits (as meaningful or relevant to ‘lawyer distress’), she does clearly recognize the importance of lawyers preserving their own emotional integrity (under the historic and current onslaught of commercial competitiveness) and for this to be viewed as a valued ‘asset’ informing the essential need for ‘moral lawyering and caring lawyering’ in the future.53 In essence, the use, application or manipulation of the law for personal gain cannot be acceptable in any context, or any country. And Professor Henrietta Moore sums up the over‐arching global issues here, for us all, not just lawyers. She endorses a new ‘moral imperative’ of anthropology and psychoanalysis addressing together the relationship between the ‘social bond’ and the ‘inner life’ in furthering greater understanding of what it is to ‘be human’. And the way the historical relationship between the ‘social’ super‐ego and egoic ‘self’, alongside the Freudian ideas of Eros and Thanatos, undermine a sustainable way of life, and how ‘well‐founded’ these psychoanalytic insights were in relation to anthropology. Since the global financial crisis of 2008, Professor Moore described a ‘world living well beyond its means’ now faced with the ethics of how to ‘limit satisfactions’. And as a ‘nodal point’ in the historical determinations of subjectivity, how this was impacting upon social change, ‘subject’ formation, politics and cohabitation. Professor Moore pointed out how contemporary politics was not only ‘stuck but inverted’ in a ‘contortion of desire and ethics’ and was now entirely ‘unhinged’. And that much needed societal change was undermined by an overall passive ‘desire to conform’ informing a complete ‘blindness to cruelty’ that was not only informing impending [if 53 Para 2 (P.162) Page 12 of 14 not current] social collapse but also eco collapse with a ‘massive eco movement going nowhere’. Social collapse was explored in the language of the Super‐ego’s ‘violent’ and ‘abusive’ father figure psychically unleashed by the ‘malaise of a contemporary society’ with no ‘Big Other’. The post‐modern neo‐liberal drive for freedom and personal pleasure – only – starved of ‘ethical desire’ or ‘ethical imagination’ ‐ was now absurdly focused on continuity and economic growth rather than ‘lifestyle reorganization’. The moral imperative, therefore, in Professor Moore’s opinion was to discover, or rediscover, a ‘shared notion of the good’ and a new form of ‘radical politics’ that ‘shared critical narratives’ in active ‘dissent’.54 54 Abstracts from my own 300 Word mandatory Term Log, Submitted 10 December 2015. Page 13 of 14 Bibliography Fink, B. ‘Clinical Introduction to Lacanian Psychoanalysis’, Harvard University Press. 1997, P.113 to P.201. Braunstein, N.A., ‘Desire and jouissance in the teachings of Lacan, P.102 to P. 115, from ‘The Cambridge Companion to Lacan’, ed., Rabate, J‐M. , Cambridge University Press, 2003. Online access: http://www.english.upenn.edu/~cavitch/pdf‐ library/Braunstein_Desire.pdf Daicoff, S.S., ‘Lawyer, know thyself: A psychological analysis of personality strengths and weaknesses. Law and public policy’, (pp. 141‐168). 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Gee, g, Hazell, R, Malleson, K & O’Brien, P (2015), ‘The Politics of Judicial Independence in the UK’s Changing Constitution’, Cambridge Books Online. http://www.cambridge.org/gb/academic/subjects/law/constitutional‐and‐ administrative‐law/politics‐judicial‐independence‐uks‐changing‐ constitution#contentsTabAnchor Page 14 of 14