Category Archives: diligence

Presenting Minnesota CLE live webcast, Thursday, July 2 at 12 pm: Finding Your Rhythm – When to Do What

On Thursday, July 2, join me on Zoom for a Minnesota CLE live webcast, Finding Your Rhythm: When to Do Focused Work, Process Emails, Brainstorm Ideas, and Make Decisions.

Attorneys routinely keep too many things on their to-do list, feel overwhelmed with busyness, and prioritize other people’s requests over their truly important tasks. They are often told to manage their time better, multitask more, work smarter, or put in longer hours to get more done. But attempting to keep up with rising demands while neglecting to consider energy peaks and valleys create an unsustainable path to productivity. 

In this presentation, you will learn how to:

  • Work with your natural rhythm or internal body clock instead of burning yourself out or staying stuck  
  • Use your preferred sleep-wake cycle (circadian rhythm) and rest-activity cycle (ultradian rhythm) to plan your day
  • Choose the best times to perform high cognitive tasks, communicate with clients, spark insights, solve problems, and rest and recharge
  • Boost your energy level and reduce overwhelm by practicing simple daily habits 

Finding your rhythm will help you fulfill your ethical duties of diligence (Rule 1.3), competence (Rule 1.1) and communication (Rule 1.4).

This is a reprise of a webcast CLE that I presented back in December 2019, when most lawyers were commuting to the office instead of working from home or working remotely. In the midst of the pandemic shutdowns and restrictions, it’s especially important to find your rhythm and stay focused on what really matters. 

To register, click HERE

See you there,

Dyan Williams

U.S. Immigration & Legal Ethics Attorney
Author of The Incrementalist: A Simple Productivity System to Create Big Results in Small Steps, an e-book at http://leanpub.com/incrementalist

Finding Your Rhythm: When to Do What – Step 2 (Match Your Chronotype with the Task and Time of Day)

Doing the right kind of task at the right time of day is key to peak performance. At any given hour, your circadian rhythm affects your concentration, energy and mood level. Is your focus sharp or scattered? Are you alert or tired? Do you feel up or down? Your internal body clock largely affects how much sleep you need, your ideal wake up time and bedtime, and your mental acuity and emotional state throughout the day.

In his book, The Power of When, Dr. Michael Breus notes that your sleep chronotype affects the secretion of hormones, which are crucial for specific activities. Cortisol makes you more alert while melatonin makes you sleepy.

Dr. Breus distinguishes the sleep chronotypes into four categories: Lion (morning type), Wolf (nighttime type), Bear (middle of the road type) and Dolphin (difficult sleeper with often erratic sleep schedules). Meanwhile, in his book, When: The Scientific Secrets of Perfect Timing, author Daniel Pink uses the more familiar-sounding chronotype categories: Early-riser Lark; late-night Owl, and in-between Third Bird.

You achieve peak performance when you know your chronotype and match it with the task at hand and the time of day. In the related article, Finding Your Rhythm: When to Do What – Step 1, you can read more information on the different chronotypes and how to discover yours.

Three Categories of Tasks

Once you have determined your chronotype, your next step is to organize your tasks into categories. As described in Pink’s book, there are three:

Analytic Tasks

Analytic tasks involve heads-down work that demands high focus, mental sharpness and vigilance. Examples include learning and processing new information, doing legal research, analyzing documents and records, writing a legal brief, solving a difficult problem, making an important decision, actively participating in a strategic meeting, and presenting at a trial or hearing.

Insight Tasks

Insight tasks involve creative work that requires a wider focus, curiosity, imagination, and a good mood. Examples include outlining an article, brainstorming solutions, tackling novel problems with new ideas, asking better questions, and holding meetings to build relationships and rapport.

Administrative Tasks

Administrative tasks involve busy work or routine work that is fairly easy to complete and do not need a lot of brain power or heavy lifting. Examples are processing emails, making and returning telephone calls, responding to inquiries, updating case notes and progress reports, entering expenses, scheduling meetings, tidying up, and organizing files. Generally, these tasks can be automated, delegated or deferred with minor consequences.

Three Stages of the Day

On any given day, there are three stages where our energy peaks, dips and recovers. They are Peak-Trough-Recovery. Larks and Third Birds (most of us) experience our Peak in the morning, our Trough in the early-to mid-afternoon, and our Recovery in the early evening. Night Owls, however, experience a reverse pattern, i.e. Recovery in the morning, Trough in the early-to-mid-afternoon, and Peak in the late afternoon and into the evening.

When to Do What

For peak performance, you need to align your chronotype, task and time of day. The table below summarizes the best times of the time day to perform certain tasks, based on your chronotype:

Use your peak period to focus on deep, important work and analytic, cognitively-demanding tasks. When you’re in your recovery period, switch to insight, creativity-driven tasks. Avoid administrative work, like processing emails, and time-wasters like reading online news, at peak hours or recovery stages of the day.

How to Protect Peak Hours

Each day, you need to leverage your peak hours by reserving them for analytic, focused work or insight, creative-thinking work. There are two main things you can do protect your peak hours.

1. Prioritize your most important task (even when it’s not urgent) through time blocking. This involves setting an appointment (with yourself) to do a single, high-cognitive demand task or a batch or stack of similar, low-cognitive demand tasks in a specific time block.

A priority doesn’t always have to be handled first thing in the morning or at at the start of the work day. Just make sure you set an appropriate time to take care of it. Be sure to match the task with your energy level, personal circumstances, and external environment.

For example, do your deep work when your mental clarity and attention span are at its peak, you have the fewest interruptions, and you have access to a quiet workspace (or can at least choose your background noise).  Do your administrative tasks when your energy is low (e.g. afternoon or after lunch), you are more distraction-prone, and your workspace is noisier and more chaotic. 

High-cognitive tasks

In a time block, focus on a single high-cognitive task, like writing a legal brief. Refrain from multitasking — such as handling questions from your paralegal or responding to emails from clients — during this time block. To encourage focus, you can theme your days or theme the hour.

Theming your day could look like this: Monday – client communications; Tuesday – client work and assignments; Wednesday – internal meetings; Thursday – client work and assignments; Friday – brainstorming or solo thinking session.

Theming your hour could include: 9 to 10 am: client communications; 10 to 12 pm: client work and assignments (e.g. writing a legal brief); 1 to 2 pm: internal meetings; 3 to 4 pm: client work and assignments (e.g. editing a legal brief); 4:30 to 5:30 pm: brainstorming or solo thinking session.

Focusing on just one task is important because the human brain is a sequential processor: It cannot pay attention to more than one thing at a time. Multitasking is not possible when (1) at least one of the tasks requires focus or effort to complete, and (2) the tasks involve similar types of brain processing. Performing two or more tasks at one time can only be done by “switch tasking” (switch back and forth between two or more tasks). This leaves a cognitive residue that takes about 15 to 25 minutes to clear up so you can refocus on the initial task.

Low-cognitive tasks

When it comes to similar, low-level tasks that do not require much mental focus, you can use batch processing. This means performing then sequentially and quickly after each other in one time block. For example, you can return all your telephone calls or respond to email inquiries in one time block.

For routine or habitual, low-level tasks, you can use stacking. This means performing one task while the other operates in the background. Examples include walking with a colleague while you discuss a work issue during your lunch break; listening to an educational podcast while you commute to work; or playing classical music or ambient sounds of a cafe (like on Coffitivity or Hipstersound) while you update your case notes. Stacking is a great way to boost your mood when you’re dealing with mundane work. (SIDE NOTE: Stacking can also work very well with insight work.)

2. Schedule and take real breaks that allow you to fully detach from your work. Breaks may be solo (e.g. meditation, reading a calming book) or social (e.g. chatting with a colleague about the upcoming weekend; having lunch with a good friend). Getting outside is better than staying inside. Movement (e.g. walking, stretching, going to the gym) is also preferred to being stationary, especially if you have been working at your desk for hours.

In chronobiology, our ultradian rhythm is the wake-rest-activity cycle that repeats throughout a 24-hour day. This involves alternating periods of high-frequency brain activity (roughly 90 minutes) followed by lower-frequency brain activity (approximately 20 minutes). Take a 20-minute break for every 90 minutes of work to take advantage of the daily ultradian rhythm cycle.

The Pomodoro Technique is one way to concentrate on a task for a set period and take necessary breaks. First, you identify the task to do. Second, you set a timer (typically 25 minutes).  Third, you work on the task only until the timer goes off.  After the timer rings, you check off your task. And if you give in to interruptions and distractions (e.g. checking emails, getting a snack), you reset the timer. 

If you have fewer than four check marks, take a short break (5 minutes), then go to step 2. If you have at least four check marks, take a longer break (20 to 30 minutes), reset your checkmark count to zero, and do the steps all over again. 

Another way to take a good break is to have a Nappuccino or Nap a Latte, when you’re in the Trough. The steps are (a) Close your door, turn off your phone, and wear eye mask and ear plugs to help block light and sound; (b) Drink a cup of coffee or tea (100 to 110 mg of caffeine); (c) Nap for 10 to 20 minutes (set timer for 25 minutes).

Caffeine takes about 25 minutes to kick into the receptor sites of your brain, so by the time you wake up from your nap, you will not only feel refreshed but also energized. Be sure to wake up within 25 minutes because you want to avoid getting into deeper stages of sleep – unless you go for a full 90-minute sleep cycle.

Naps, however, are not ideal for everyone or for all chronotypes. If you suffer from insomnia or have trouble sleeping at night, you could make the problem worse with daytime naps.

How to Maximize Peak Hours

Maximizing your peak hours involves practicing habits that will help raise and sustain your energy levels. They include:

1. Limit your to-do list. Set boundaries and clarify expectations to reduce the interruptions and distractions. For example, inform your clients at the outset as to when they may expect to hear back from you in response to an inquiry. Is it within an hour, within 24 hours, or by end of business day? Do not give them your cell phone number if you do not want to be contacted whenever and however they please. If your boss or manager assigns you more work while you’re focusing on a major project, remind them of timelines and deadlines and discuss what actually takes priority.

2. Keep a consistent sleep schedule that aligns with your circadian rhythm. Dr. Breus notes that having the same wake up time and bedtime every day, including on weekends, is the single most important thing you can do for your circadian rhythm.

Here is his Bedtime Sleep Calculator to maximize sleep quality:

a. The average sleep cycle is 90 minutes long.

For Lions and Bears, a typical night of sleep includes 5 full sleep cycles, i.e. 90 x 5 = 450 minutes, or 7.5 hours. Dolphins and Wolves tend to get 4 full sleep cycles, i.e. 90 x 4 = 360 minutes, or 6 hours. Add an extra 20 minutes for Lions and Bears, and 40 minutes for Dolphins and Wolves to fall asleep.

b. Starting at your wake time, work back 7.5 hours to find your bedtime.

Ideal bedtime for Lions and Bears is calculated as follows:

90 minute sleep cycle x 5 cycles + 20 minutes to fall asleep = 470 minutes or 7.8 hours

Lions: up at 6:00 am – 470 minutes = 10:10 pm

Bears: up at 7:00 am – 470 minutes = 11:10 pm

Ideal bedtime for Wolves and Dolphins is calculated as follows:

90 minute sleep cycle x 4 cycles + 40 minutes to fall asleep = 400 minutes or 6.7 hours

Wolves: up at 7:00am – 400 minutes = 12:00 am

Dolphins: up at 6:30am – 400 minutes = 11:50 pm

3. Practice an energizing morning routine

Design a morning routine that works with your personal preferences and internal rhythm. Key ingredients you may incorporate into your morning rituals are:

Hydrate with water. When you wake up, drink 8 to 12 ounces of room temperature or lukewarm water.

Soak in bright light early in the morning, within first half hour of waking up. This lowers your melatonin level and provides vitamin D, which helps you sleep at night. Go outside and walk around the block or sit by a window to get direct sunlight in your face. Aim for at least 5 to 15 minutes and preferably 20 to 30 minute of sun exposure.

If you wake before sunrise or live in a place where there is little sunlight in certain seasons of the year, try using a bright light therapy lamp.

Have a high-protein rich and good-fats breakfast, such as a fruit smoothie, Greek yogurt, protein shake, or eggs/omelet with avocado.  Avoid carbohydrate-rich foods, which help produce serotonin and make you drowsy.

Get moving. Stretch, walk, run, dance, jump on the trampoline, or do a quick workout to wake up your body and boost your mental energy.

Take a cool shower. This stimulates blood flow, releases endorphins and triggers wakefulness. You could start with warm water and gradually turn down the water temperature. Still too much? Wash your face with cold water for similar effects.

4. Stick to a relaxing bedtime routine

Create a bedtime routine that allows you to wind down, relax and prime your mind and body for sleep. Key tips for nighttime rituals include:

Do not drink alcohol within 3 hours of bedtime. One alcohol beverage takes 1 hour to process, so give your body time to process it well before your bedtime. While alcohol might help you fall asleep more quickly, it prevents you from moving into deep sleep and reduces Rapid Eye Movement (REM) sleep, which are stages 3 and 4 of the sleep cycle.

Fast for at least 3 hours before bed, and preferably 4. Food tells your circadian rhythm to wake up and be alert. Have space between dinner and your bedtime for optimal functioning.

Practice relaxation methods, including meditation, gentle/restorative yoga, tai chi, stretching, or foam rolling (self massage).

Do light reading (few pages) or journaling (up to 2 to 5 minutes), but not on your computer or other electronic devices. Avoid blue light from screens at least 1 hour before bedtime because it hinders production of melatonin, the hormone needed for good sleep.

Get warm. Drink warm bedtime tea or water with lemon + honey. Take a lukewarm shower or bath, preferably 60 to 90 minutes before bedtime .

These self-care habits will help boost your energy levels, heighten alertness, and improve your mood. Peak performance results when you match your chronotype with the task and time of day and synch with your natural rhythm.

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For more information on the different chronotypes and how to determine yours, read the related article,  Finding Your Rhythm: When to Do What – Step 1 (Know Your Chronotype)

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This article provides general information only. Do not consider it as specific advice for any individual case or situation.  

Dyan Williams is a solo lawyer who practices U.S. Immigration Law and Legal Ethics. She is also a productivity coach for lawyers, consultants and other professionals who seek to reduce overwhelm and make time for what truly matters.  She is the author of The Incrementalist: A Simple Productivity System to Create Big Results in Small Steps, an e-book at http://leanpub.com/incrementalist.

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Finding your Rhythm: When to Do What – Step 1 (Know Your Chronotype)

To do focused work, generate ideas, respond to inquiries, and make decisions, you need to consider that not all times of the day are created equal. Biologically speaking, your concentration, energy and mood levels vary by the hour. Thus, the question of when you will work on a specific project is just as important as what steps you will take and how you will execute them to produce the desired results.

It is counter-productive to use your peak hours to deal with busy work instead of matters that require high-cognitive abilities or creative thinking. Yet like many other overwhelmed professionals, lawyers often fall into this trap. Despite putting in more time and neglecting to take restorative breaks, they often end their day with minor tasks done, but with no significant progress toward reaching their critical goals. While they might have replied to many emails and attended multiple meetings, the time-sensitive client matter is left untouched and the brilliant marketing idea is stuck on the some-day list.

Working out of synch with your natural rhythm often leads to emotional overwhelm, mental depletion, physical exhaustion and increased distractibility.  These factors impair your acquisition of knowledge and skills, fuel procrastination, and make it more difficult to convey bad news or timely communicate with clients. Ethical missteps are more likely to occur when you do not take your internal body clock into account.  

What is Your Circadian Rhythm?

Your circadian rhythm is an internal timing device that controls when you are most alert and when you are most tired. It is your brain’s sleep-wake cycle in a 24-hour period that determines your natural wake up time and bedtime. A group of about 20,000 nerve cells (neurons) – referred to as the suprachiasmatic nucleus (SCN) in the hypothalamus part of the brain (behind your eyes) – affects the secretion of hormones, like cortisol (which triggers your body to wake up) and melatonin (which tells your body to go to sleep), as well as your body temperature and blood pressure.  

What is Your Sleep Chronotype?

Your sleep chronotype is the behavioral manifestation of your circadian rhythm. It is genetically set and is linked to your Period 3 (PER3) or “clock” gene. In the field of chronobiology, Early Birds tend to have a longer version of the PER3 gene than Night Owls. They need more sleep and wake up and go to bed earlier.

4 Chronotype Classifications (Animals)

Dr. Michael J. Breus — a clinical psychologist with a  specialty in sleep disorders – notes there are four chronotype categories of sleep patterns and circadian rhythms. In his book, The Power of When, he distinguishes the chronotypes based on morning and evening preferences, and classifies them according to different animals whose sleep habits best reflect the characteristics.

Chronotypes are general guidelines for large populations; there are individual variations within each chronotype. Although you are genetically predisposed to a certain chronotype in adulthood (age 21 to 65),  this may change as you age, especially at 65 or older. In addition, workplace demands, social obligations, cultural norms and other external factors may require you to shift or reset your circadian rhythm.

The four chronotypes, as defined by Dr. Breus, are:

Lion (morning type, like the Early Bird)

  • 15% to 20% of population
  • Medium sleep drive (7 hours), naturally wake up before dawn
  • Wake up with lots of energy, with their peak energy in the early morning and morning, and little energy to spare in the evening
  • Adapt best to a 6 am wake up time & 10:10 pm bedtime for traditional office hours
  • Tend to be optimists, overactive achievers and go-getters,  and leaders, managers and CEOs
  • Have leadership qualities with introversion preference

Wolf (nighttime type, like the Night Owl)

  • 15% to 20% of population
  • Medium sleep drive (7 hours), naturally wake up late after mid-morning
  • Wake up with serious morning grogginess, with their peak energy in the middle of the day and evening
  • Adapt best to 7 am wake up time and 12 am bedtime for traditional office hours
  • Tend to be creative, pessimistic, risk-seeking and moody; often seen as lazy due to their being out of sych with society’s schedule
  • Are comfortable being alone or often socially introverted, but love a good party

Bear (middle of the road type)

  • 50% to 55% of population (often hybrids who lean toward being a Lion or a Wolf)
  • High sleep drive (8 hours), often hit the snooze button and wish they could stay in bed longer
  • Deep sleepers who like to rise with the sun and keep a solar schedule
  • Wake up in a haze, with their peak energy in the morning to mid-morning
  • Adapt best to a 7 am wake up time & 11:10 pm bedtime for traditional office hours
  • Tend to be fun, friendly and easy to talk to and have good people skills
  • Are team players and worker bees

Dolphin (difficult sleeper)

  • 10% of the population
  • Low sleep drive (6 hours), even though they often crave longer bouts of sleep
  • Light sleepers (often diagnosed or self-diagnosed as insomniacs who keep erratic sleep schedules and have trouble falling asleep and staying asleep)
  • Wake up feeling unrefreshed, with their peak energy in the mid-morning to early afternoon
  • Adapt best to a 6:30 am wake up time & 11:50 pm bedtime for traditional office hours
  • Tend to be anxious, irritable, and highly intelligent with Type A personality, including detail-oriented and perfectionistic
  • Prefer to work solo than in groups

Three Chronotype Classifications (Birds)

In his book, When: The Scientific Secrets of Perfect Timing, author Daniel Pink points out there is a strong biological underpinning for whether you are sharpest in the morning or in the evening. He describes the three chronotypes as:

Lark (morning person)

  • 15% to 20% of the population
  • Naturally wake up very early and go to bed very early
  • Wear out by the evening
  • Peak energy in the early morning

Owl (evening person)

  • 15% to 20% of the population
  • Naturally wake up late and go to bed late
  • Sluggish in the morning
  • Peak energy in the late afternoon and early evening

Third Bird (intermediate person)

  • 66% or 2/3 of population
  • Naturally wake up early and go to bed early
  • Peak in the early to mid-morning

Larks and owls are at two ends of the spectrum. Their melatonin and cortisol levels rise and fall at different times in the 24-hour cycle. For example, melatonin is still high for night owls if they wake at 6 to 7 am, while it dips for larks before that time.  

How to Find Out Your Chronotype

Paying attention to your own natural rhythm is important to know when you are at your peak each day. The ideal time to wake up, go to bed, and perform certain activities depends on your chronotype, i.e. whether you are a morning person, an evening person, or in between.

Here are four ways to find out your chronotype:

Take Power of When Quiz, created by Dr. Breus. Currently available at powerofwhenquiz.com, this is a short questionnaire that takes about two minutes to complete and provides a personalized choronotype.  By answering questions on your sleep drive, sleep timing and preference, you will learn whether you are a Lion, Dolphin, Bear or Wolf and how your chronotype impacts your daily life.

Calculate Midpoint of Sleep, as outlined in Pink’s book. On a free day, when you have no appointments, meetings or time-sensitive obligations (and are not sleep-deprived), when do you naturally go to sleep and wake up? What is the midpoint of your sleep cycle? For example, if you go to bed at 12 am and wake at 8 am, your midpoint is 4 am. If your midpoint is 3:30 am or earlier, you are a Lark. If it is 5:30 am or later, you are an Owl. If you midpoint is somewhere in the middle, you are a Third Bird.

Track your energy level every hour and note how you feel on a scale of 1 to 10. Also note the task or activity and the time of day. A 10 is when you are at your sharpest, fully present, and can more easily get into a flow state. The lower the score, the more you feel drained, scattered, and open to distractions. Chart your scores over time for a week or two. Look for patterns related to when you are hitting 10s, 1s and in between.

Complete scientifically verified survey, such as the Horne Östberg questionnaire, and Munich Chronotype questionnaire, which contains Likert-scale questions to assess your preferences in sleep and waking times, and the degree to which you are active and alert at certain times of the day.

Match Your Chronotype with the Task and Time of Day

The rises and dips in your circadian rhythm trigger changes in your mental alertness, emotional states and behaviors throughout the day. In addition to knowing your chronotype, you also need to sort your work into three types of categories: (1) analytic work that requires heads-down focus, (2) insight work that is open to possibilities, and (3) administrative work that is more routine.

You will produce the best results with the most ease if you do cognitively demanding tasks when you are at your peak (mornings for most people) and creative tasks when your mood boosts back up (early evening for most people). Save your busy work for when you are least productive, which is usually after lunch in the early afternoon, for most people.

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For more information on how to match your chronotype with the task and time of day for peak performance, read the related article,  Finding Your Rhythm: When to Do What – Step 2 (Match Your Chronotype with the Task and Time of Day.

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This article provides general information only. Do not consider it as specific advice for any individual case or situation.  

Dyan Williams is a solo lawyer who practices U.S. Immigration Law and Legal Ethics. She is also a productivity coach for lawyers, consultants and other professionals who seek to reduce overwhelm and make time for what truly matters.  She is the author of The Incrementalist: A Simple Productivity System to Create Big Results in Small Steps, an e-book at http://leanpub.com/incrementalist.

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Sleep Debt: A Cause of (and a Potential Mitigating Factor for) Lawyer Misconduct – Part 2

Sleep debt – especially when coupled with extreme stress and mental disorders – can result in lawyer misconduct and ethics violations. Sleep deprivation impairs your cognitive abilities, energy level, mood and mental health. Thus, left unchecked, it is bound to have ripple effects on your work, life and overall performance. As such, in certain situations, it may be considered a mitigating factor in attorney disciplinary matters.

What is the Role of Sleep Debt in Lawyer Misconduct and Disciplinary Action?

The Minnesota Supreme Court has stated the purpose of attorney discipline is “not to punish the attorney but rather to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.”

The court reviews three factors when determining the appropriate sanction: 1) the nature of the misconduct; 2) the cumulative weight of the disciplinary violations; and 3) the harm to the public, the legal profession, and the administration of justice. The court considers the facts of each case, including aggravating and mitigating circumstances, and uses similar cases as guidance.

In March 2018, the Minnesota Supreme Court issued a decision, In Re: Petition for Disciplinary Action Against Adam William Klotz, in which sleep deprivation was considered a mitigating factor. The Director of the Office of Lawyers Professional sought disbarment due to misconduct involving lying to the Director, not cooperating with the Director’s investigation, creating a false and misleading document, misappropriating client funds, and neglecting and lying to clients. The court agreed with the referee’s recommendation to impose indefinite suspension with no right to petition for reinstatement for 18 months.

The Director disputed the referee’s finding that the multiple stressors in Klotz’s life were a mitigating factor. The court noted, “We have recognized that extreme or extraordinary stress can be a mitigating factor.” Even if there is no proof that turmoil in the attorney’s life caused the misconduct, it may still be considered a mitigating factor.

The Director argued that the stress Klotz faced was not sufficiently extreme or extraordinary to mitigate misconduct. The court responded as follows:

But we have never examined whether particular stressors in an attorney’s life were objectively so extreme or extraordinary as to warrant mitigation. In prior cases, we have examined the particular facts and circumstances facing each attorney and whether the record showed that those stressors constituted extraordinary stress for that attorney. To create the legal threshold the Director requests would impose an objective standard onto what is an inherently subjective matter. Accordingly, we decline the Director’s invitation to set a legal threshold for the types of stress eligible for mitigation. We instead look to the record for factual support of any claims of mitigation due to extreme stress.

The court found:

Here, the record establishes that, after his child was born, the stress that Klotz experienced increased by a significant amount. The referee found that Klotz suffered stress related to his son’s sleep problems, suffered substantial sleep deprivation, and experienced stress related to caring for his son while his wife worked long hours. The referee found that the stress Klotz experienced was “among the causes of his inability to manage his own practice and the ethical violations that resulted,” and “compound[ed] and exacerbate[d] respondent’s mismanagement of his practice.” Because evidence in the record supports this finding, the referee’s conclusion that extreme stress was a mitigating factor was not clear error.

Sleep problems have been rejected as a mitigating factor in other cases. For example, in an earlier 2003 case, In Re Petition for Disciplinary Action against Alan J. Albrecht, the Minnesota Supreme Court discussed sleep apnea in determining appropriate attorney discipline. The court stated:

We have held that when a mental or physical disability is put forward as a mitigating factor the attorney must show by clear and convincing evidence that he or she has the disability, the disability caused the misconduct, the attorney is undergoing treatment for the disability and making progress in recovery, the recovery has halted the misconduct, and the misconduct is not likely to reoccur.  In re Merlin, 572 N.W.2d 737, 741 (Minn. 1998).

The court agreed that sleep apnea could lead to attorney misconduct:

Here, the referee relied on the testimony of Dr. Theodore M. Berman to conclude that Albrecht’s sleep apnea mitigated his misconduct.  Dr. Berman testified that Albrecht had severe sleep apnea, symptoms of which include daytime hypersomnia, impairment of memory and attention to detail, and lack of concentration.  Dr. Berman further testified that the allegations of misconduct by Albrecht, such as failing to follow through and failing to return phone calls, are consistent with the effects of sleep apnea.  There was also evidence presented at the hearing that, at the time of the hearing, Albrecht was being treated for sleep apnea.  Thus, there was evidence before the referee that would permit the finding that Albrecht suffers from sleep apnea, that the symptoms of sleep apnea could result in Albrecht missing dates, failing to return calls, and sleepiness during the day, and that Albrecht was undergoing treatment for the sleep apnea at the time of the hearing

Nevertheless, the court concluded:

Other than Albrecht’s own testimony, however, there is no evidence in the record to support a finding that Albrecht was making progress in his recovery from sleep apnea.  Further, there is no evidence that the recovery has halted the misconduct or that the misconduct is unlikely to recur.  Because there is no evidence that would support such findings, we conclude that the referee’s findings and conclusions that Albrecht’s sleep apnea is a mitigating circumstance are clearly erroneous.

Sleep apnea has been discussed in attorney disciplinary matters in other jurisdictions. For example, in March 2019, the New Hampshire Supreme Court issued a decision in which the Professional Conduct Committee recommended a three-year suspension, with 18 months stayed, for attorney Joshua Mesmer, who claimed sleep apnea caused his inaction on client matters and contributed to his misrepresentations.

The Committee pointed out that Mesmer lied to his clients about the work he was not doing, falsely attributed unfavorable outcomes to court corruption, overbilled his clients, and then aggressively pursued payment. The Committee noted, “Though Mr. Mesmer was inattentive to many matters in this litigation, he remembered to bill his clients, and he remembered to make efforts to collect money from them that he had not earned.”

In another case, Canadian lawyer Vassilios Apostolopoulos — who was disbarred in 2002 and reinstated by the Law Society of Upper Canada 10 years later — blamed obstructive sleep apnea as the cause of his mood disorder, which affected his cognitive abilities. He was misdiagnosed and treated wrongly for clinical depression.

When the treatment for depression and undiagnosed sleep apnea took its toll, he committed two violations: neglecting to file proper documents in a mortgage case and misappropriating a large sum of client funds. Following his disbarment, he was eventually diagnosed with sleep apnea and began proper treatment. This allowed him to get reinstated as a licensed lawyer.

Avoid Sleep Debt or Take Protective Measures While You Pay it Down

When you are sleep deprived, you are more likely to make mistakes, overlook key details, and fail to recall information. Lack of sleep also prevents you from learning new things, making sound judgments, prioritizing what needs to be done, and engaging in thoughtful decision-making.

Instead of relying on sleep debt as a justification for ethics violations or a mitigating factor for disciplinary action, you need to avoid it in the first place. Tips for getting good sleep include: soak in sunlight during the day; avoid screen time on computers, smartphones, and television at least 90 minutes before you go to bed; reduce your caffeine intake; have a consistent bedtime, preferably between 9 pm and 11 pm; create a nightly routine such as sitting quietly, meditating, doing restorative yoga, or reading light fiction before you go to bed.

While you are paying down your sleep debt, you need to take protective measures against its effects, such as fatigue, impaired stress response, and slower executive functioning.

First, get the professional support you need, whether it’s seeing a therapist or consulting a sleep disorder specialist. You may also contact Lawyers Concerned for Lawyers (LCL), which provides a free, confidential Lawyers Assistance Program for Minnesota lawyers, judges, law students and their immediate family members. This program offers help to those affected by alcohol, drugs and other addictions; depression, anxiety and other mental illnesses; stress and other life-related problems.

Second, develop work-related habits and practices that will help steer you away from ethics traps. When you have sleep debt, it’s especially critical to take detailed meeting notes; document communications in writing; maintain and refer to up-to-date filing checklists; double check or triple check your work; have an accountability partner to point out your blind spots; refuse cases with strict and aggressive timelines for which you lack the bandwidth; and focus on areas where you are highly proficient and knowledgeable, rather than venture into new areas with steep learning curves.

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For more information on what creates Sleep Debt and its effects, read the related article, Sleep Debt: A Cause of (and a Potential Mitigating Factor) for Lawyer Misconduct – Part 1.

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This article provides general information only. Do not consider it as legal advice for any individual case or situation.  

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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Sleep Debt: A Cause of (and a Potential Mitigating Factor for) Lawyer Misconduct – Part 1

On the list of essential habits to practice self-care, cultivate well-being and sustain peak performance, good sleep is at the top. But sleep deprivation is common among lawyers facing heavy caseloads, long work hours, pressing deadlines, and high rates of alcohol use, drug addiction and mental disorders. Lack of sleep impairs your focus, memory, decision-making, and judgment, which are necessary to practice law effectively and ethically.

While there are many factors contributing to lawyer misconduct, there is no doubt that sleep debt makes you tired and less capable of meeting the demands of the profession. When you are sleep deprived, it is much harder to think creatively, solve problems, make steady progress on client matters, and communicate effectively as the rules of professional responsibility require.

What is Good Sleep?

In a 2017 study titled Short- and long-term health consequences of sleep disruption and published in the Nature and Science of Sleep journal, sleep is defined as a biologic process necessary for brain health and the functioning of immune, hormonal and cardiovascular systems in the body.

The American Academy of Sleep Medicine and Sleep Research Society jointly recommend at least 7 hours of sleep per night for adults. Besides adequate duration, sleep also has to be of good quality. This means you sleep for most of the time while in bed (at least 85% of the total time), fall asleep in 30 minutes or less, wake up no more than once per night, and drift back to sleep within 20 minutes if you do wake up, according to a report in Sleep Health.

What is Sleep Debt?

The American Sleep Association defines sleep debt as the cumulative effect of a person not having sufficient sleep, either through total sleep deprivation (when you are kept awake for a minimum of 24 hours) or partial sleep deprivation (when you have limited sleep for several days or weeks).

Long-term sleep debt is difficult to repay and the negative effects are persistent. One 2013 study in the American Journal of Physiology found that extended recovery sleep over the weekend reverses the impact of one work week of mild sleep restriction on daytime sleepiness and fatigue, but does not correct performance deficits. 

What Creates Sleep Debt?

Sleep deprivation and disturbances stem from multiple factors, including:

Lifestyle, e.g. consuming too much caffeine, alcohol use, drug abuse, jet lag

Environmental, e.g. excessive noise, excessive light

Psychosocial, e.g. anxiety, worry and rumination; parents of young children; caregivers to a family member with a serious illness

Sleep disorder, e.g. insomnia (difficulty falling or staying asleep), obstructive sleep apnea (disordered breathing that causes multiple awakenings), restless legs syndrome and other movement syndromes (unpleasant sensations that prompt night fidgeting), narcolepsy (extreme sleepiness or falling asleep suddenly during the day)

Medical conditions, e.g. pain, kidney disease, diabetes, neurodegenerative diseases, psychiatric disorders, use of certain medications

There is also a widespread fallacy that lawyers must work long hours for greater achievement, better results, and higher productivity. Getting good sleep is viewed as a luxury, instead of a necessity.

What are the Effects of Sleep Debt?

A 2016 study titled The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys and published in the Journal of Addiction Medicine, reported that among the 12,825 lawyers surveyed, 28%, 19%, and 23% experienced symptoms of depression, anxiety, and stress, respectively.

Sleep Debt Affects Your Well-Being

Funded by the American Bar Association Commission on Lawyer Assistance Programs and Hazelden Betty Ford Foundation, the study helped to trigger a Call to Action for Lawyer Well-Being from the Minnesota Supreme Court and create a National Task Force on Lawyer Well-Being comprised of a consortium of organizations such as the American Bar Association (ABA).

Sleep deprivation is cited as one of the major problems lawyers face. Lack of sleep reduces your overall health and wellness, lowers your energy level, and interferes with coordination, agility, and endurance. As Robin M. Wolpert, Chair of the Lawyers Professional Responsibility Board, notes in her March 2019 Minnesota Lawyer article, “The National Task Force Report’s recommendations could be strengthened by prescribing sleep.”

Sleep Debt Affects Your Cognitive Abilities

The normal sleep cycle is comprised of four different stages: 1, 2, 3 of Non-REM (non-rapid-eye-movement) sleep, followed by REM (rapid-eye-movement) sleep. A complete cycle takes about 90 to 120 minutes. Non-REM sleep (which includes deep sleep) is critical for memory formation, and REM sleep (dream state) boosts creativity and problem solving skills.

Sleep deprivation makes you susceptible to lawyer misconduct because it compromises your cognitive skills and disrupts your brain function at a cellular level. In a 2017 study, researchers at the University of California – Los Angeles Health Sciences found that sleep deprivation disrupts brain cells’ ability to communicate with each other, leading to mental lapses that affect memory and visual perception.

A 2007 study, published in the Neuropsychiatric Disease and Treatment journal, states that total sleep deprivation impairs attention and working memory, as well as long-term memory and decision-making. It adds that partial sleep deprivation affects attention, especially vigilance. This makes it more challenging to focus and concentrate on tasks for steady progress and successful completion.

When you lack sleep, your brain does not get to fully remove dead cells, flush out toxins and complete other housekeeping actions through the glymphatic system (functional waste clearance pathway for the vertebrate central nervous system). Sleep enables you to remove waste and make room for new learning, growth and development.

Acquiring and recalling memories take place when you’re awake. But memory consolidation – which allows you to store new memories for future retrieval – occurs when you’re asleep. Memory consolidation frees up space in the brain to acquire new memories and learn new things the next day.

Sleep debt is often associated with dementia, Alzheimer’s disease, and general cognitive decline. It not only makes it harder to acquire and store memories, but also more challenging to recall memories you already made, such as the password for an account.

The prefrontal cortex, which is the cerebral cortex covering the front part of the frontal lobe of the brain, is especially vulnerable to sleep loss. This region of the brain is responsible for executive functions, such as analyzing complex thoughts, processing information, determining right from wrong, making decisions, predicting outcomes, evaluating risks, understanding consequences, prioritizing and sequences actions, exerting control, and moderating social behavior.

In addition, when sleep is disrupted, you miss out on REM sleep, which is important for creative thinking, staying motivated, and generating ideas. During this stage of sleep, your brain makes important neural connections that are needed for mental health and overall well-being.

Sleep Debt Affects Your Mood

Sleep loss is also associated with changes in levels of hormones, such as serotonin, dopamine, and cortisol.

Serotonin is linked with well-being and happiness. It helps regulate the body’s sleep-wake cycles, increases wakefulness in the morning, and keeps moods stable. Low serotonin levels is associated with depression.

Dopamine is also associated with well-being and happiness. But instead of regulating mood, it makes you feel good. Dopamine drives behavior towards things (e.g. drugs) that will activate the pleasure and reward centers of the brain.

Cortisol regulates a wide range of processes in the body, such as blood sugar levels, metabolism and the immune system. It influences memory formation and is critical in helping the body respond to stress. Excessive cortisol levels contribute to mood swings, anxiety and depression.

Sleep Debt Affects Your Mental Health

Sleep, mood and mental states are closely interrelated and often overlap. Anxiety and extreme stress, for example, make it hard to fall asleep or stay asleep. In turn, sleep problems impair your mental health.

A Harvard Health Publishing article, titled Sleep and mental health, notes that studies reveal 65% to 90% of adult patients with major depression experience some kind of sleep problem, such as insomnia and obstructive sleep apnea. It states that sleep problems increase the risk of developing depression and make it less likely to respond to treatment.

Studies further report that 69% to 99% of patients experience insomnia or report less need for sleep during a manic episode of bipolar disorder. Meanwhile, in bipolar depression, 23% to 78% of patients sleep excessively (hypersomnia), while others may experience insomnia or restless sleep. Lack of sleep can trigger mania, destabilize mood and contribute to relapse.

In addition, sleep problems affect more than 50% of adult patients with generalized anxiety disorder, are prevalent in those with post-traumatic stress disorder (PTSD), and may occur in panic disorder, obsessive-compulsive disorder, and phobias. Insomnia can interfere with recovery or exacerbate the symptoms of anxiety disorders.

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For more information on the Role of Sleep Debt in Lawyer Misconduct and Disciplinary Action, read the related article, Sleep Debt: A Cause of (and a Potential Mitigating Factor for) Lawyer Misconduct – Part 2.

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This article provides general information only. Do not consider it as legal advice for any individual case or situation.  

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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