Practical & Ethical Considerations for Lawyers with Chronic Health Concerns
Never let the things you cannot do prevent you from doing the things you can. —John Wooden
Although many things have returned to “normal” since the start of the COVID-19 pandemic, some attorneys are now dealing with an entirely new normal: long COVID. Indeed, Cindy got COVID for the first time in October 2022 and experienced lingering brain fog and fatigue for several months. Thankfully, her symptoms finally resolved, but many attorneys are still battling the far-reaching effects of long COVID.
One Lawyer’s Journey with Long Covid
After first contracting COVID in January 2021, 49-year-old Florida lawyer Jenna Simpson-Oliver has been on sabbatical due to central nervous system dysfunction caused by long COVID. As an attorney in health law, Jenna continued to work through her initial symptoms; however, within a week, she felt as if she had been “hit by a truck” and was forced to take time off to recuperate.
Despite extensive time away from her job, Jenna wasn’t getting better. She was experiencing a host of lingering symptoms, including extreme fatigue and impaired cognitive functioning. “I’d been on the phone with a client, and as I was in the middle of a statement, my mind went completely blank. I knew something was really wrong at that point.”
This chronic illness has impacted every facet of Jenna’s life, including work, parenting, social activities, and her relationships. She shared she has very little energy and must be extremely diligent to stop, rest, and pace herself. “It’s a delicate balance, and many days I crash and end up house-bound or even bed-bound. I also rely on others around me to help watch my energy levels, and they help to remind me when it’s time to wrap up or rest.”
Long COVID is just one example of the myriad of often “invisible” chronic health conditions that ail countless attorneys, such as migraines, multiple sclerosis, and autoimmune diseases such as lupus. Given attorneys’ obligation to uphold our professional rules of ethics, the realities of practicing law (or not) while managing a chronic health condition can be fraught with challenges.
Here we examine the ethical implications of practicing law while experiencing ill health, as well as targeted coping strategies to help manage the symptoms of chronic illness such as long COVID. Ultimately, we hope this article will raise awareness about the realities of practicing law with a chronic health condition, as well as highlight some simple, targeted strategies to promote your mental and physical health and overall well-being. Remember, you are never alone!
Ethical Considerations of Chronic Illness and Legal Practice
Several attorneys attending our CLEs have asked about the ethical implications of practicing while their health is compromised. The fact that the question was asked shows a level of awareness (shared by most lawyers) that will help avoid ethical pitfalls. That being said, it is critical for all licensed practitioners to carefully reflect on their ability to remain compliant with applicable rules of professional conduct and to react appropriately. By way of illustration, a lawyer with intermittent brain fog from long COVID could ask a trusted colleague to lend a hand from time to time to ensure that cases are handled efficiently and competently.
Impairment Is Not a Defense
A number of lawyers suffer from mental health, addiction, or age-related issues; however, this condition is not taken into account in determining whether an ethics rule has been broken—even if it is found that the impairment is a substantial contributing factor to the misconduct. American Bar Association (ABA) Formal Opinion 03-429 (2003) makes it abundantly clear that a lawyer’s impairment is not a valid defense to an ethics complaint. This doctrine has been applied uniformly throughout the United States, as reflected in both ethics opinions and case law.
For example, a matter filed by the Supreme Court of Appeals of West Virginia in November 2022 involved an attorney who committed 53 ethics violations outlined in the seven-count complaint. The infractions included failure to appear at hearings, assert or respond to counterclaims, file pretrial motions, communicate a settlement offer to a client, and inform a client of a scheduled court hearing. Multiple rules, including ABA Model Rules of Professional Conduct 1.1 (competence), 1.3 (diligence), and 1.4 (communications), were found to have been violated. By the way, these are the most common rules at play where impairment is a stated underlying element.
The respondent introduced evidence that he suffered from “adjustment disorder” attributable to “grief, stress, and other emotional challenges.” Although the court predictably rejected the impairment defense, it did consider the following mitigating factors in determining the appropriate level of discipline: (1) the impairment was the main factor underlying the infractions, and (2) the attorney is under ongoing treatment for the condition and has made significant progress.
Despite the mitigating factors, the court suspended the attorney’s license for a two-year period. The dissenting judge (who advocated for a three-month suspension) expressed a compassionate point of view, stating that the attorney’s depression “caused him to ignore his duties to his clients and then stick his head in the sand as things fell apart.”
Seeking Early Intervention
In an ideal world, the attorney described above would have been able to self-assess early on and seek help for the condition before his life and practice spiraled out of control. Unfortunately, many with mental health conditions have distorted thinking and perception, making it even more difficult to recognize that they are committing ethical infractions.
Fortunately, bar associations and law firms have begun to understand the importance of attorney wellness for the profession at large and have developed an array of educational and confidential resources. We urge our colleagues to seek intervention at an early stage before issues escalate and result in negative consequences. (Those looking for resources should consult the ABA Commission on Lawyer Assistance Programs’ Directory of Lawyer Assistance Programs, which includes listings for every state.)
Coping Strategies for Lawyers with Chronic Illness
You cannot control what happens to you, but you can control your attitude toward what happens to you, and in that, you will be mastering change rather than allowing it to master you. —Brian Tracy
Overall, those suffering from chronic health issues such as migraines or chronic fatigue would be especially well served by a commitment to extreme self-care and adherence to sound health practices. Below we examine some simple steps that attorneys (especially those suffering from chronic health conditions) can take to strengthen their overall health and well-being and ultimately cultivate self-defined success and fulfillment in their personal and professional lives.
Living in Acceptance
Change is the only constant in this life, and it’s critical to meet yourself where you’re at in this moment. Coming to a place of acceptance about the realities of your abilities and limitations is a critical starting point. All too often, attorneys feel guilty or “less than” when it is ill-advised or even impossible for them to work long hours. Developing a mindset of self-compassion can help. Instead of making comparisons with how you may have operated in the past, shift your perspective to what you have to offer in the here and now.
Consider that your experiences may actually help you develop empathy and understanding for clients or others experiencing similar situations. Indeed, the positive impact of consciously and compassionately connecting with others cannot be understated, as our interactions significantly impact our ability to be happy and productive.
Connecting with Others
Whether dealing with a chronic or even a temporary illness, our support networks can offer empathetic support and help us problem solve and maintain perspective. According to recent resilience research highlighted in the Harvard Business Review, deepening our relationships and connections with others can be a key means to help us persevere during difficult times. Interviews of successful leaders show that those with strong support systems—both personally and professionally—are better equipped to handle challenges and major life transitions when they rely on their family, friends, and colleagues for support.
If someone shares their struggles of long-term or chronic illness with you, hold space and actively listen. Be sure not to discount their symptoms or personal experience navigating their chronic condition. Meet them with compassion and ask what you can do to support them in any way. Make it a point to actively check in to see if their support needs have evolved over time.
By way of example, Jenna Simpson-Oliver shared that her former colleagues have been more than supportive and often reach out via phone calls, texts, or visits. Jenna says she cherishes these interactions, and they absolutely benefit her recovery journey.
Jenna’s best piece of advice for others who may be struggling with a chronic condition is to ask for help from colleagues, friends, and significant others. Indeed, as demonstrated in the aforementioned resiliency research, leaning on our support systems can further bolster our confidence to self-advocate and communicate our needs, whether in the workplace or at home. Jenna also emphasized the importance of engaging with medical providers who understand and validate your chronic condition: “You may have to try several before you get what you need, but it’s worth it.”
Working Ahead of Schedule
People living with chronic illness may go for days or even weeks during which the disease is asymptomatic and doesn’t interfere with productivity. Then, a sudden and unexpected onset of symptoms may render the person unable to get out of bed, let alone practice law. If a deadline is imminent at that point, they could ask for an extension, which is not an ideal option. Another choice is to labor intensely while not feeling up to par, which may negatively impact the quality of the work product and could lead to burnout.
Our suggestion for these attorneys is to prepare for the unexpected by planning ahead. Upon receiving a new case or assignment, immediately map out the trajectory of the work so that it is scheduled to be completed well in advance of the established external deadline. For example, if your client is served with interrogatories that require answers in 60 days, learn to manage your workload so that the project is scheduled to be completed at the 40-day mark. Building in “wiggle room” is a way to reduce stress while setting yourself up for success.
Practicing Mindfulness Meditation
Recently, while delivering a virtual CLE, we were struck when several attorneys shared their active struggles with long COVID and how mindfulness meditation has helped them cope with the realities of their diagnosis, as well as manage their symptoms. One lawyer candidly shared, “Mindfulness practice helps a great deal in cultivating both self-compassion and honesty with myself and others about what I can and am not able to do in each moment.” In addition, regularly practicing mindfulness had demonstrated physical health benefits for this lawyer, including improved metabolic functions and lung capacity, which had been seriously negatively affected by COVID.
In response, another lawyer shared about their long COVID diagnosis, which has resulted in serious cognitive and neurological effects. This attorney has also found mindfulness meditation to be an essential tool to help them advocate for themselves and their clients and, ultimately, “stay sane and able to work at the pace I can, each minute, even though, in many moments, it is different than what I could before.”
As these attorneys openly shared their stories and extended love and support on their respective recoveries, they showed genuine empathy and compassion for one another, which one declared the “best takeaway from CLE, ever!” We wholeheartedly agree.
If you are looking to incorporate sustainable stress resilience into your routine, email us email@example.com, and we’ll forward a copy of our Mindfulness Resource Guide, which includes practical tips to integrate mindfulness into your everyday life and law practice.
Attorneys suffering from chronic illness (or even a temporary medical issue) are urged to practice extreme self-care and remain on high alert regarding how their condition may affect their ability to ethically and effectively practice law.
In our next column, we will explore how establishing clear and effective boundaries can lead to improved well-being.
Rebecca Howlett, Esq., and Cynthia Sharp, Esq., are co-founders of The Legal Burnout Solution (legalburnout.com), a community dedicated to the well-being of lawyers.
Originally published in ABA GPSolo eReport, March 2023 Issue (Vol. 12, No. 7) by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.