The Lawsuit Whose Name We Dare Not Speak Part 1
One can’t review the data showing the magnitude of mental illness, substance abuse and other indices of distress in lawyers without thinking of the lawsuit that, with apologies to Lord Alfred Douglas, no one dares speak about but is certain to come.
There are all sorts of scenarios that could prompt it. An associate will commit suicide or a partner will kill his domestic partner or a staffer will be attacked. An in-house counsel will shoot one of her colleagues or friends or abuse a child or her boss will stalk a judge or threaten an outside lawyer.
There may be a criminal proceeding, but certainly a civil one will follow. It will point out that, according to expert opinion, management's policies and practices conspired to create a toxic environment that ignored particularly vulnerable lawyers, both as a group and individually, and that those policies and practices either neglected (possibly criminally) to stop the lawyer in question from committing his/her heinous acts or even pushed him/her into it.
Or, for a milder version, a malpractice suit will be mounted with an additional allegation that the lawyer primarily working on or overseeing a matter that was mishandled was and should have been known by firm or department management to be compromised by substance abuse, mental illness, etc.
We have regularly seen fact patterns that resemble these scenarios in the various media reports of lawyers acting badly, and any senior partner has stories s/he could tell. There's the drunken arson of a 9/11 memorial by a biglaw associate, or the lawyer facing criminal charges after shooting a hunter So far, the publicized cases rarely have involved firms of note or suits against the firms themselves.
Perhaps the most notorious case over the last few years was that of Robert Wone, who left Covington & Burling to be General Counsel at Radio Free Asia only a month before he was gruesomely sexually assaulted and killed in the townhome owned by his college friend Joseph Price, an attorney at Arent Fox, and his gay partner. The lengthy investigation that followed is not something any firm would want to be involved in, let alone as an accused or defendant. Price's law office was searched. The case dragged on for years. All three defendants living in the townhouse were eventually dismissed, if not completely cleared. Wone's widow proceeded to file a $20 million civil suit against attorney Price and his roommates.
It would be a fairly short distance to a similar suit against a firm if one of its lawyers had been identified as the killer.
The legal professionals in your firm have thoughts of suicide at a rate 4-20 times greater than the general public, depending on the source of data, and also have highly elevated levels of substance abuse and mental illness and other indices of distress. They are under extreme pressure to perform in a brutal market. and they have well-documented deficiencies in adaptability and stress management. Levels of anger and frustration are off the charts.
Most law firms would fail miserably the recognized assessment which determines workplace environments that literally make employees crazy.
What can your firm do to avoid being one of the headliners when these lawsuits do occur?
A number of precautions can be taken. Interviewing protocols can be toughened up so that you have a higher assurance that incoming lawyers are entering with relatively stable coping skills and mental health. Reporting protocols can be set up within the firm to make sure that struggling attorneys are identified and supported. Firms can offer coaching and psychological services (confidentially) to help their lawyers cope with both the professional and personal stresses that make them vulnerable to debilitation. Guidelines can be established as to what behaviors constitute grounds sufficient for requiring lawyers to take a break or leave the firm. And you might check your insurance policy.
This is admittedly moving into the touchy area of ADA concerns about discrimination, but starting to explore these issues before the lawsuit arrives will put your firm on the best footing.
Remember, in these lawsuits, plaintiffs will not try to convince a jury there was a workplace environment like in those movies with Tom Cruise, where evil, even satanic partners work their maleficent intent on their own lawyers. What they will show is the indifference of management to clear and convincing data on the vulnerabilities of its lawyer population, the thoughtless promulgation of requirements like unreasonable performance measures likely to destabilize such a vulnerable population and the failure of management to attend to clear signs that the lawyer in question is in distress—absences, family problems, mistreatment of staff or subordinates, irrationality, emotional imbalance, substance abuse. Just the sort of things most firms and law departments would rather not know about their lawyers--and studiously ignore when they happen to find out.
We offer expert assistance in selecting attorneys, improving their coping skills, providing individual and on-site coaching and psychological assistance, identifying and intervening in problematic situations and developing protocols to sustain a productive workforce and reduce potential liability.
Law People Management, Inc.
270 Greenwich Avenue
Greenwich, CT 06830