The Law: A Profession in Trouble?

Originally published by Guest Blogger Mark W. Gifford.

I started law school at Stanford in September 1978. Dressed in blue jeans, a flannel shirt, and hiking boots, I stood out like a sore thumb among my classmates, a sea of Ivy Leaguers in khaki pants, Izod shirts, and Top-Siders (sans socks). One of the fast friends I made was Warren Malone, a kid from Long Island who was enrolled in the joint JD/MBA degree program. Warren was easy to be around—funny, engaging, unpretentious, and scary bright. I introduced him to the Dirt Band, cowboy boots, and jackalopes. He introduced me to Bruce Springsteen, the Talking Heads, and the Yankees.

After graduation, we went different directions: Warren went to a Wall Street firm and I went back to Wyoming. We kept in touch, visiting each other often over the years. Warren’s career path took him from Cravath, Swaine & Moore to Bear Stearns. After spending a few years as a senior financial executive with Progressive Corporation, Warren teamed up with two other Bear Stearns alums to form the Daystar Special Situations Fund, an investment fund that catered to the endowments of Ivy League schools, among others. Warren achieved spectacular financial success—a home on Manhattan’s Upper East Side, a wife and two beautiful children, involvement in his children’s exclusive private schools, and all the other trappings. He maintained his passion for running and could often be found putting in 10 miles around Central Park Reservoir.

As the years passed, Warren and I kept in touch but with less frequency as we started families and our lives got busier. We still managed to get together every few years. Whenever I made it to New York, we would take in a Yankees game. That had been our tradition going back to the early 1980s.

Several weeks ago, I called Warren and told him I was coming to New York for a conference in early August. The Red Sox were going to be in town; I told him I would get tickets. He was upbeat—recently divorced, his children graduated from Ivy League schools—and was looking forward to seeing me. I went on StubHub and purchased tickets for the August 12 afternoon game.

***

Saturday, August 12. I attended the final session of my conference, a panel devoted to a groundbreaking report that would be released by the American Bar Association the following Monday. “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change” offers a sobering glimpse of a profession in trouble:

To be a good lawyer, one has to be a healthy lawyer. Sadly, our profession is falling short when it comes to well-being. [Two recent studies] reveal that too many lawyers and law students experience chronic stress and high rates of depression and substance use. These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence. This research suggests that the current state of lawyers’ health cannot support a profession dedicated to client service and dependent on the public trust.

The Saturday morning session moderator—one of the members of the task force that created the new report—asked for a show of hands from those in the room who had lost close colleagues to suicide. A couple dozen hands went up. Thankfully, mine was not one of them.

My conference adjourned at noon. I walked several blocks to the hotel of a friend who would be attending the game with Warren and me. I had texted Warren two days before: “Hey buddy. Looking forward to seeing you. Give me a call when you can.” I had left a voicemail for him the previous day but had not heard from him. With the first pitch just hours away, I was concerned. “This isn’t like Warren,” I told my friend. “I hope he’s OK.”

At a loss, I Googled, “Warren J. Malone obituary.” Up popped a two-sentence death notice in the New York Times: “Warren J. Malone, 62, tragically died August 2, 2017. Service at All Souls Church, August 10, 2017, 10:30 a.m.” I immediately called a mutual friend from law school who told me Warren had killed himself. His funeral service had been held two days earlier at a church just two blocks from the hotel where my conference was taking place. I didn’t even get to say goodbye.

***

“The Path to Lawyer Well-Being: Practical Recommendations for Positive Change” is a must read for all lawyers. Quoting from the introductory letter by the National Task Force on Lawyer Well-Being:

The legal profession is already struggling. Our profession confronts a dwindling market share as the public turns to more accessible, affordable alternative legal service providers. We are at a crossroads. To maintain public confidence in the profession, to meet the need for innovation in how we deliver legal services, to increase access to justice, and to reduce the level of toxicity that has allowed mental health and substance use disorders to fester among our colleagues, we have to act now. Change will require a wide-eyed and candid assessment of our members’ state of being, accompanied by courageous commitment to re-envisioning what it means to live the life of a lawyer.

The report offers concrete suggestions to each “stakeholder” with a vested interest in lawyer well-being, including specific recommendations to judges, lawyer regulators, law firms, law schools, state bar associations, professional liability carriers, and lawyer assistance programs. The recommendations for regulators include modifying Rule 1.1 of the ABA Model Rules of Professional Conduct to endorse lawyer well-being as part of a lawyer’s duty of competence.

The report’s introduction contains recommendations to all stakeholders. I am happy to note that the Wyoming State Bar has already embraced several of them, including launching the Wyoming Lawyer Assistance Program in 2014, an emphasis on providing high-quality CLE programs and materials about lawyer well-being, publishing the Planning Ahead handbook (a helpful guide for succession planning for older lawyers) as a free download on the bar’s website, and de-emphasizing the use of alcohol at social events. But much remains to be done.

The new report opens with an audacious challenge to the legal profession:

Every sector of the legal profession must support lawyer well-being. Each of us can take a leadership role within our own spheres to change the profession’s mindset from passive denial of problems to proactive support for change. We have the capacity to make a difference.

Let’s all get to work.

This article, which was originally published in the October 2017 issue of the Wyoming Lawyer, has been edited and reprinted with permission.

Mark W. Gifford is bar counsel to the Wyoming State Bar.

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