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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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Attorney Burnout: The High Cost of Overwork

Being truly productive is not about filling your time with more work and plugging away at your to-dos without breaks.  Still, managing a heavy caseload and working beyond office hours are expected and even glorified in the legal industry.

Overwork is considered a badge of honor when it is equated with dedication, responsiveness, and a can-do attitude. But when mounting stress pushes you into the downward spiral of burnout,  it is impossible to make meaningful contribution and perform at your peak. The fire in your belly fades out and the inner drive gets replaced with indifference and disillusionment.

Knowing the symptoms helps you spot burnout and take action to alleviate it. Understanding the effects of overwork and other contributory factors is key to preventing and stopping burnout. Recognizing the consequences of burnout makes you less likely to ignore the telltale signs.

What is Burnout?

There is no clear definition of burnout. More often, it is discussed in terms of its common symptoms. Although burnout is typically linked with chronic stress, they are not the same. Burnout is at the extreme end of the stress continuum.

In the 1970’s, psychologist Herbert J. Freudenberger coined the term and referred to it as “a state of mental and physical exhaustion caused by one’s professional life.”

Christina Maslach, psychologist and creator of the leading burnout measure, the Maslach Burnout Inventory™ (MBI), describes burnout as a syndrome emerging as a prolonged response to chronic, job-related stress. She notes that burnout is “a state of physical, emotional and mental exhaustion marked by physical depletion and chronic fatigue, feelings of helplessness and hopelessness, and by development of a negative self-concept and negative attitudes towards work, life and other people.”

In the 10th edition of the International Classification of Diseases (ICD-10), burnout is given its own code (Z73.0) and is referred to as a state of vital exhaustion. Burnout, however, is not recognized as a medical diagnosis in part because its symptoms overlap with those of more widely studied conditions, such as depression and anxiety disorder,  as well as physical illnesses.

While there are questionnaires to self-assess burnout, there are no official methods to diagnose burnout or whether the symptoms are caused by something else.

What are the Common Symptoms of Burnout? 

Warning signs of burnout include emotional symptoms, such as feeling overwhelmed, forgetfulness; inability to focus; feeling empty or depressed; chronic anxiety; increased irritability; intolerance of others; and withdrawal from friends and family. Physical symptoms include headaches; indigestion; nausea; sudden weight loss or gain; and getting sick more frequently. Among the behavioral symptoms are insomnia; alcohol dependence; and substance misuse.

Maslach’s 3 key dimensions of burnout

Maslach and her colleagues found that burnout has three key dimensions:

Emotional exhaustion is overwhelming exhaustion that includes low energy, depletion and fatigue. It is feeling emotionally drained by interpersonal contact and being overextended and exhausted by one’s work.

Depersonalization refers to cynicism and detachment, i.e. a negative and excessively impersonal response toward clients (recipients of one’s services or care)  and various aspects of the job. It is usually associated with irritability, loss of idealism, withdrawal and other negative shifts in attitude.

Reduced personal accomplishment is a sense of inefficacy and a feeling of ineffectiveness in producing the desired results. It refers to a negative self-evaluation of professional competence. It is linked to depression, low self-esteem, low morale, and an inability to cope.

The Maslach Burnout Inventory™ evaluates the three dimensions with a 22-item survey using a 7-point Likert scale for responses.  An answer reflects both the frequency and intensity of feelings and may range from “Never” to “Every day”.

The Emotional Exhaustion subscale includes nine items, such as  “I feel burned out from my work,” “I feel fatigued when I get up in the morning and have to face another day on the job,” and “I feel I’m working too hard on my job.” Higher scores on this subscale correspond to higher degrees of burnout.

The Depersonalization subscale includes five items, such as “I’ve become more callous towards people since I took this job,” “I worry that this job is hardening me emotionally,” and ” I don’t really care what happens to some recipients.”  Higher scores on this subscale correspond to higher degrees of burnout.

The Personal Accomplishment subscale includes eight items, such as “I feel I’m positively influencing other people’s lives through my work,” “I feel exhilarated after working closely with my recipients,” and “I have accomplished many worthwhile things in this job.” Lower scores on this subscale correspond to higher degrees of burnout.

Freudenberger’s 12-stage model of burnout

Freudenberger described the development of burnout in 12 stages, which do not necessarily occur in order and might not all be experienced in every case:

1. Compulsion to prove oneself (excessive ambition; obsession with proving worth)

2. Working harder (inability to switch off; taking on more work)

3. Neglecting needs (lack of social interactions; unhealthy diet; irregular sleep)

4. Displacement of conflicts (roots of problems are dismissed; feel threatened by disagreements)

5. Revision of values (work becomes the only focus; life becomes one-dimensional as family, friends, hobbies, etc. are neglected)

6. Denial of emerging problems (intolerance; inflexibility in thoughts and behavior; cynicism; aggression)

7. Withdrawal (hopelessness; reduced sense of direction; use of alcohol and drugs for stress relief)

8.  Obvious behavioral changes (odd shifts in behavior and emotional outbursts, which concern friends and family)

9. Depersonalization (devaluing self and others)

10. Inner emptiness (feeling empty and anxious; addictions develop)

11. Depression (feeling lost and uncertain; pessimistic outlook on the future)

12. Burnout syndrome (mental and physical exhaustion that can be life-threatening; medical attention becomes critical)

As psychologist Cary Cherniss notes, burnout begins with a mismatch between your work demands and your resources to deal with these demands (stress). It progresses to the immediate, short-term response of anxiety, tension and fatigue (individual strain). Then it sparks changes in attitude and behavior, such as greater cynicism and detachment (defensive coping). Paying attention to the early warning signs is key to staving off the more severe symptoms and full-on burnout.

What are the Causes of Burnout? 

Both the workplace environment (external factors) and your individual traits and personal habits (internal factors) contribute to  burnout.

Workplace factors

In their book, The Truth About Burnout, Christina Maslach and Michael P. Leiter identify six factors in the workplace that fuel stress and trigger burnout. They are:

1. Work overload. Organizational restructuring, downsizing and budget cuts force individuals to work more with fewer resources.  Billable hour requirements and other financial demands push lawyers to work longer even when they ought to take a break and recharge.

2. Lack of control over your work. Having autonomy — such as the freedom to determine your own priorities, set limits, and solve problems creatively — is critical for workplace motivation and engagement. When you have little or no control over which tactics and strategies you use, and when you execute them,  it’s much harder to influence the outcome and derive satisfaction from the work you do.

3. Insufficient reward. Meaningful rewards come in a variety of forms.  They include high pay, good benefits, recognition from peers and supervisors, and the feeling that you make a difference for your organization and your clients. In the high stakes legal industry,  lawyers are harshly reprimanded and called out for mistakes and failures, while their diligence and successes are often taken for granted. If your work is not met with appropriate reward, burnout is more likely.

4. Lack of community. When there is minimal support from colleagues and supervisors, unresolved conflicts, extreme competitiveness, and intense isolation within your workplace, there is a higher propensity for cynicism and detachment.

5. Absence of fairness. Trust, openness and respect are necessary for a workplace to be perceived as fair. Inequities in the workload or pay structures, favoritism in promotions, biased evaluations, and failure to appropriately resolve disputes can lead to burnout.

6. Conflicting values. A mismatch between your organization’s values and your personal values makes it hard to align priorities and goals. Inconsistencies between the organization’s stated objectives and its daily actions also create frustration, discontentment and negativity.

Individual traits and habits

Common personality traits or tendencies among lawyers, which tend to cause burnout, are:

1.  Perfectionism. Deadline-driven work, complex laws and rules, and ongoing changes in procedures and policies are some of the factors that encourage perfectionism. This involves setting impossibly high standards and rejecting any work product short of perfection. Unrealistic expectations, aversion to mistakes and the overvaluing of flawless performance can steer you toward burnout.

2. Conscientiousness. Prioritizing work and clients’ needs over self-care and personal commitments is prevalent among lawyers. The ability to make a difference  can lead you to say yes to unreasonable requests and never-ending demands. Overtime, your conscientiousness and sense of service can begin to feel more like self-sacrifice, deprivation and martyrdom.

3.  Achievement orientation. High achievers tend to have lower resilience to stress and setbacks. They obsess about meeting goals no matter the costs, and find it difficult to discuss their weaknesses and accept constructive feedback. Due to their strong desire to excel, they are generally hypercritical of their failures and fall easily into comparison traps.

4. Workaholism.  Many lawyers work beyond the standard 40 hours per week,  e.g. 50 to 80 hours, because they are workaholics. They have an extreme internal drive, are excessively hard workers, and are addicted to work. They work compulsively and excessively, beyond what is required to meet organizational goals or their own financial needs.

What are the Consequences of Burnout?

Burnout has far-reaching consequences on lawyers, their organizations and the industry as a whole. They include:

Ethical Missteps

ABA Model Rule 1.1 (Competence), which is reflected in Rule 1.1 of the Minnesota Rules of Professional Conduct, instructs lawyers to provide competent representation, which “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Rule 1.3 of the MRPC (Diligence), which mirrors the Model Rule, states “A lawyer shall act with reasonable diligence and promptness in representing a client.”

Rule 1.4 (a), MRPC (Communication) and the Model Rule, requires lawyers to promptly inform the client of key decisions and circumstances and obtain informed consent; reasonably consult with the client about the means to accomplish objectives; keep the client reasonably informed about the status of the matter; and promptly comply with reasonable requests for information.

These and other ethics rules are more likely to be broken when you are experiencing fatigue, cynicism, detachment and hopelessness due to burnout.  Your capacity to meet the demands of your profession and needs of your client are depleted by burnout.

Intense fatigue, for example, makes it much harder to keep up with the workload, track and meet deadlines, analyze and apply complex laws, and respond promptly to client’s questions and concerns. Your cognitive abilities and creative problem solving skills are not as sharp as they could be when you are burned out.

Excessive depersonalization of clients strips your ability to show compassion and address highly sensitive issues.  Too much distancing from your work can lead you to overlook critical aspects of a client matter.

Feeling ineffective and helpless discourages you from exerting effort and exploring ways to solve problems. Your interest and focus wane when you think what you do makes little or no difference.

Health-Related Problems

Emotional depletion and mental fatigue often lead to serious health problems. Burnout has been linked with physical consequences, such as type 2 diabetes, heart disease, cardiovascular disorder, chronic pain, prolonged fatigue, headaches, gastrointestinal issues, respiratory problems, severe injuries and shorter life spans. Burnout is also associated with psychological effects, including depression and anxiety disorder.

Impaired Relationships

Burnout can lead to withdrawal from family and friends as well as more interpersonal disputes. Work-family conflict, for instance, arises when obligations at work take time and energy away from family-related responsibilities.  Negativity, lower energy, irritability and increased frustration affect your ability to maintain relationships with colleagues, team members, supervisors and partners.

Substance Abuse 

Stress is a known contributor to alcoholism and drug addiction. In a 2016 study titled, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, researchers found that more than 1 in 5 lawyers said they felt their use of alcohol or other drugs was problematic at some point in their lives.  The study found that attorneys in the first 10 years of their practice experience the highest rates of problematic use (28.9%), followed by attorneys practicing for 11 to 20 years (20.6%).

Alcohol or drugs is sometimes used to numb out, relax, or cope with work-related stressors. Some drugs, such as cocaine, also serve to increase mental alertness. Self-medicating to deal with burnout leads to drug addictions and substance abuse.

Dysfunctions and Reduced Productivity in the Workplace 

Burnout and its related symptoms prevent you from getting the most important things done efficiently, effectively and in a timely manner. Cynicism or negative attitudes toward the organization, clients and colleagues reduces commitment to the workplace, job satisfaction, and quality of service. It also contributes to communication breakdown and low workplace morale. Emotional exhaustion and physical fatigue lower productivity and increase absenteeism and tardiness.

In addition, the growing sense of ineffectiveness and lack of accomplishment often causes burned out lawyers to quit their jobs, close their practice, or shift to another profession or vocation altogether. Heavy workloads, inadequate rewards and job dissatisfaction, which are part of the burnout culture, are among the reasons for high turnover rates. The organization incurs significant expenses when recruiting and training lawyers to replace those who leave.

Overwork Comes At a High Cost that Does Not, in the Long Run, Outweigh Any Possible Benefit

Prolonged exposure to stress (e.g. excessive workload), combined with the workplace environment and personal characteristics and tendencies, make lawyers vulnerable to burnout.

Burnout not only impairs your personal health and productivity, but also affects the outcomes of your organization in the form of subpar work product, decreased client satisfaction, and a higher propensity for legal errors and ethical missteps.

The high cost of overwork, which is a requisite for burnout, means you must take purposeful breaks daily, weekly, and yearly – no matter how busy you are. The heavier your caseload, the more recharging and refueling you need to avoid running on empty.

For more information, read the related article, Attorney Burnout: The Benefits of Purposeful Breaks (and how to take them).

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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. 

SUBSCRIBE           CONTACT

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Deadlines & Daily Habits: Why Time Blocking Works

Time blocking (or time boxing) is an essential productivity technique that involves setting an appointment (with yourself) to do a single, high-cognitive demand task or a batch of similar, low-cognitive demand tasks in a specific time block.

It allows you to prioritize important, deadline-driven or time-sensitive matters, make progress on growth-based projects, and communicate with clients and prospects without giving them 24/7 access to you. Ultimately, time blocking leads to strategic deadlines and productive habits that help you get important tasks done well and on time.

Here are three reasons why time blocking works:

1. Develop laser-like focus

Because a time block is a pre-planned, distraction-free period for tackling your most important tasks (MITs) or one big thing, it gives you the opportunity to practice the skill of concentrating on cognitively demanding, high-value work without giving up easily.

Instead of jumping from task to task or giving in to urges to check social media or surf the web, you learn to sit with discomfort and stay committed to the task at hand.

Focus, however, requires willpower – the mental energy to resist short-term temptations to make long-term gains. And willpower is a limited resource. With time blocking, you  build daily habits that move you forward and get you unstuck, without relying too much on self-control.

Time blocks allow you to hone in your efforts on a single big task that must be done, or a batch of low-value tasks that will accumulate if you ignore them too long. Decision fatigue is reduced when you know exactly what task you need to tackle, how long you should spend on it, and when to break from it.

By routinizing and batching low-level tasks, you reserve your energy, attention span and concentration for complicated tasks that require laser-like focus.

2. Produce higher-quality work

Time blocking gets you in the zone and increases flow – the mental state in which you are absorbed in and fully involved in the task at hand – by reducing distractions and minimizing interruptions.

When you invest your cognitive abilities on a complex task ( instead of scatter your attention on busy work), you make fewer mistakes, notice significant details, and produce more creative, higher-level work. Time blocking encourages you to postpone mindless activities and time wasters so you can attend to your more important and/or urgent work.

3. Speed up progress on priorities

Time blocking encourages conscious choices in which you say yes to essentials (do list) and no to non-essentials (don’t list)

Rather than overcommitting or succumbing to endless obligations, you set clear boundaries and realistic expectations with others.

If you habitually reply to emails and text messages within 5 minutes of when you get them, the sender will come to expect the same or similar response time for all correspondence. If you answer every telephone call regardless of what time they come in and what you are doing, you teach the caller that their problem always matters more than your own. If you keep an open office so anyone can walk into your office at any time, observers will conclude it’s fine to interrupt you regardless of what’s on your own agenda.

Being highly responsive makes you procrastinate on taking action on your own, highest priorities. By having time blocks for when you meet with clients and colleagues, take telephone calls, and respond to emails, you set appropriate boundaries that allow reasonable access to you without compromising your most important work.

Time blocking minimizes multitasking (time suck) and maximizes single tasking (time saver)

The ability to multitask is generally viewed as a valuable skill in our pseudo-productive world. Performing two or more tasks at one time seems to be the way to go when time is short and you have many things to do. But as Dave Crenshaw points out in the The Myth of Multitasking, the most you can do is “switch tasking” (switch back and forth between two or more tasks) and “background tasking” (do two or more mundane tasks like listen to the radio while you drive or watch TV while you exercise.)

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.

Constantly shifting your attention makes you feel busy, but actually makes you less productive. When you stop what you’re doing to attend to an interruption, distraction or another completely different task, you are left with a  cognitive residue that takes about 15 to 25 minutes to clear up so you can refocus on the initial task. Multitasking (or switch tasking) is very different from taking deliberate breaks for necessary rest or taking time to let ideas percolate and incubate.

Background tasking is fine when you couple a primary task with a low-concentration or mindless activity. You can take a walk with a colleague while you discuss a work issue during your lunch break. You can listen to classical music while you organize your receipts for tax filing. You can catch up on the latest episode of your favorite podcast while you do the dishes.

But when it comes to your high-concentration, most important tasks, the best way to complete them in less time and with greater ease is to single-task. Focusing on one task at a time typically leads to better results.  

Time blocking reduces procrastination (time suck) and encourages deliberate action (time saver)

Classically defined, procrastination is the act of delaying or postponing action to a future time.  Neil Fiore, author of The Now Habit, defines procrastination as “a mechanism for coping with the anxiety associated with starting or completing any task or decision.”

In certain situations, delaying a task purposefully and strategically can work to your benefit. Sometimes you do need to reflect on things, allow ideas to percolate, gather and synthesize information, clarify your intentions, and determine your ultimate goal before you take action. This is known as strategic procrastination.

In other cases, delaying action on an important task while you work on other tasks to build momentum.  This is called structured procrastination.

Dr. John Perry, a philosopher at Stanford University and author of The Art of Procrastination, notes that despite being a habitual procrastinator, he is very productive most of the time. He notes:

The key to productivity is to make more commitments – but to be methodical about it. At the top of your to-do list put a couple of daunting, if not impossible tasks that are vaguely important sounding (but really aren’t) and seem to have deadlines (but really don’t). Then further down the list, include some doable tasks that really matter. With this appropriate task structure, the procrastinator becomes a useful citizen. Indeed, the procrastinator can even acquire, as I have, a reputation for getting a lot done.

Perry suggest that instead of working on your most important task first, you start a different task on your list that needs attention. By making other tasks just as important, you can make it easier to tackle the most significant.  Structural procrastination is supposed to motivate you to do difficult, important and time-sensitive tasks, as long as they are a way of not doing something more important.

But there are side effects. Strategic procrastination works only if you start the project early and give yourself time to develop and test ideas. It should not be used to complicate simple things that can be done quickly and doesn’t require a lot of thought. Preparation, which includes building expertise on the topic and mindfully reflecting on ideas, is key.

Structural procrastination works only if you eventually get around to doing your most important task. It should not be used to permanently avoid your main priority by un(consciously) engaging in low-leverage, shallow work instead of high-value, deep work.

They are ineffective as overall productivity strategies. Relying on strategic procrastination or structural procrastination benefits you in only some situations. You are not always creative under pressure, especially when all or or most of your work occurs when the deadline looms. You are likely to end up with mediocre results, high stress, and undeveloped solutions if you start the work too late and don’t have an adequate incubation period to develop ideas and insights.

Time blocking prevents you from delaying or postponing tasks that should not be put off to a later time.

Time blocking takes advantage of Parkinson’s Law (i.e. work expands to fill the time allotted)

Simply put, you will use up all the time to complete a task when given a certain amount of time to do it.

Think about a lawyer billing by the hour with no deadlines. Compared to a lawyer who charges a fixed fee for a specific matter, a lawyer who bills by the hour will likely do more work than is necessary to fill or exceed the minimum billable quota, as long as the client is willing to pay for it and remain a client.

By setting specific time blocks to tackle and complete a task, you learn to reduce perfectionism, ignore trivial details, simplify the steps involved, and work more productively toward a desired outcome.

* * *

In terms of improving diligence (Rule 1.3), developing competence (Rule 1.1) and communicating effectively (Rule 1.4), time blocking works on multiple levels. It takes practice to use it consistently, but once you do, you will benefit from increased focus, higher-quality work, and more deliberate progress on your most important tasks.

To learn more, read the related article, Deadlines & Daily Habits: How Time Blocking Works.

# # #

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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Deadlines & Daily Habits: How Time Blocking Works

Exercising reasonable diligence, providing competent representation, and clearly and timely communicating with clients are critical professional responsibilities. When these ethical duties are neglected, lawyers are vulnerable to missing deadlines, producing sub-par work product, getting angry telephone calls from frustrated clients, and being reported to the bar disciplinary agency.

How do lawyers combine the essential skills of diligence, competence and communication to get important tasks done well and on time? How do they resist distractions, minimize interruptions, clarify their focus areas, and make purposeful progress on their highest priorities?

One essential productivity technique is time blocking. Also known as time boxing, this involves setting an appointment (with yourself) to do a single, high-cognitive demand task or a batch of similar, low-cognitive demand tasks in a specific time block.

Here are the 5 steps to implement time blocking to get essential tasks and projects done, while weeding out the non-essentials:

1. Do a brain dump 

The feeling of overwhelm comes with having too many goals to reach and carrying around too many ideas in your head.  By recording your to-dos, intentions, and plans in a notebook, on a sheet of paper, or in an electronic app like Evernote, you can capture all the things that occupy your thoughts.

Pick a certain day of the week (e.g. Sunday morning or Friday afternoon) to list out the stuff  – small tasks, big projects, short-term goals, and long-term projects – that take up mental space. Strive to get everything out in one session, although you may add items to the list sporadically, as they pop into your mind.

The brain dump is the first step to figuring out what to prioritize and get done within a certain time frame, as well as what to delegate, defer or drop altogether.

The process will also help you organize your projects and break them down into small, manageable steps (next actions) toward the desired outcome. If your list includes “write legal brief for X matter,” jot down the individual tasks involved in completing it. These include reviewing the file, narrowing down the legal issues, creating an outline, doing a first draft, and revising and editing to produce a final draft.

By capturing the steps it will take for you to reach an objective effectively, you can start to organize your projects, create a concrete action plan, and begin to make progress through time blocking.

2. Prioritize

The brain dump leaves you with random priorities. You then need to decide which are your must-dos and, on a daily basis, focus on the three most important tasks (MITs) or the one big thing that will make the most noticeable difference. Narrowing down your top priorities gives you room to deal with emergencies, delays, interruptions, and distractions outside your control. 

The Priority Matrix – also known as Eisenhower’s Urgent-Important Principle – is a useful tool for prioritizing significant, time-sensitive projects, building necessary knowledge and skills, and letting go of the distractions. It distinguishes between importance and urgency. Important tasks contribute to long-term accomplishment. Urgent tasks require immediate attention.

The system includes four different quadrants that enable you to prioritize tasks based on their importance and urgency. It reminds you that not every task is created equal and you may decide whether to tackle it now or defer it.

The Priority Matrix involves putting your tasks in one of four quadrants:

QUADRANT 1: Important + Urgent.

 

Examples: filing a legal brief by the deadline; appearing for a court hearing; attending a scheduled appointment with an important client

Significant, time-sensitive projects

 

 

 

 

QUADRANT 2: Important, But Not Urgent (at least not yet)

Examples: writing and publishing an article; preparing for a presentation; taking a course in your field; evaluating your work

Knowledge learning and skills development; planning and strategizing; mindful reflection and purposeful breaks

 

QUADRANT 3: Urgent (usually to someone else), But Not (always) Important

 

Examples: dealing with your boss’ last-minute request, attending an impromptu meeting, handling a colleague’s need to “pick your brain”

 

Time-pressured distractions and interruptions and random communications (like telephone calls, emails, text messages)

QUADRANT 4: Not Urgent, and Not Important

 

Examples: checking social media, surfing the web for news and videos, online shopping

 

Mindless activities and time wasters

 

3. Schedule priorities like appointments

After deciding on your top priorities (big rocks), your growth-based projects (pebbles) and recurring tasks that may become emergencies if you neglect them too long (sand), you next set a focused block of time to deal with them. Schedule the time blocks on your calendar at the start of your day or at the end of your day.

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).  Shallow work can be done when your energy is low (e.g. afternoon or end of day), you are more distraction-prone, and your workspace is noisier and more chaotic. 

Estimate how long a task will take and strive to carve out the ideal amount of time to spend on a particular activity. For complicated tasks that require deep thinking and high concentration, you could start with an hour and work your way up to two or three hours as you build your focus muscle. For shallow tasks, limit the time you spend on them to 25 minutes.

The Pomodoro Technique is one way to develop the skill to concentrate on one task at a time. 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 (15–30 minutes), reset your checkmark count to zero, and do the steps all over again.

Studies show our ultradian rhythm allows our brain to focus for 90 to 120 minutes before it needs a break. So take purposeful, necessary breaks that involve stretching, hydrating, and calming your mind. Engage in rest and reflection that truly allow you to decompress and reset. Go outside for a walk, meditate, read a funny story or listen to instrumental music. 

4. Eat the frog before the candy

In Eat That Frog, author Brian Tracy writes, “Your ‘frog’ is your biggest, most important task, the one you are most likely to procrastinate on if you don’t do something about it.”  He writes:

The first rule of frog eating is this:

If you have to eat two frogs, eat the ugliest one first.

The second rule of frog eating is this:

If you have to eat a live frog at all, it doesn’t pay to sit and look at it very long.

If you have two important tasks, start with the more difficult one. And take immediate or prompt action rather than mull over it for too long. Tackle your major task – the one that’s high-value but you’ve been postponing – first thing, when your willpower is at its peak.

Be intentional about when you check your emails, watch online videos, scroll through web pages, and engage with social media. Make it as hard as possible to reach for your digital devices at any time of the day. Avoid them first thing after you wake up (when you ought to be gearing  for your most significant projects), and right before bedtime (when you ought to be winding down and clearing your mind).

You don’t have to respond to emails, telephone calls and text messages as soon as they come in or within second or minutes. By end of day or next day is usually more than enough in most cases.  Go online during chunks of predetermined time blocks on your own schedule. That way, you stay responsive and connected without being bombarded by digital distractions throughout the day.

Before you start high-focus tasks, close your web browsers and keep your smartphone out of sight – preferably in another room – with the Do Not Disturb mode on. (If you’re expecting a truly important call, you can set your phone to have it go through.)

While you’re engaged in deep work, stay away from social media, online news feeds and other digital distractions that clutter your mind. If you feel the urge to go online, remind yourself that your time block is for real work or purposeful breaks. 

To reduce digital temptations altogether, remove automatic alerts, like the pop-up messages and sound alerts you get each time a text, or email comes in. Disable push notifications from social media.  Try online filters and website blockers like FocusMe (paid service), Freedom (paid service) or StayFocused (free service for Google Chrome users).

Another way to tackle your MITs or one big thing is to theme your days. Set aside a day to concentrate on a high-cognitive demand task, such as writing an article, studying and analyzing a complex issue, following up and communicating with important clients, and making progress on a particular matter.

Block out time for your miscellaneous, low-cognitive demand tasks that require attention. Batch similar activities like replying to random inquiries from prospects and responding to requests for information or updates from clients.

5. Review whether actions reflect priorities

Do an honest assessment of your daily actions to determine whether you’re addressing your real priorities or just getting distracted with busy work.

Keep an activities log and record when you did each task and how much time you spent on it.  Are you investing more time than necessary on low-cognitive, shallow work that contributes little to your success? Does the task appropriately align with your energy and focus levels?  Have you been doing your MITs or one big task first thing or do you procrastinate on what you really need to be doing? Are you overscheduling and failing to build margins or leave white space in your calendar?

Tracking your time raises awareness of how much is spent on the meaningful versus the meaningless. It gives you a visual cue of important areas that need your attention. It motivates you to drop time wasters and energy drainers that steer you away from your preferred path. You learn to rework your plan and modify your scheduling to keep yourself accountable, stay on task, and make progress on the most important matters.

* * *

By taking the 5 steps to time blocking, you get to work on your important, high-value tasks, free of distractions and interruptions, without neglecting the routine, low-value tasks. In effect, you set strategic deadlines and cultivate productive habits that enable you to get the right things done effectively and efficiently.

Time blocking helps you develop long bouts of focus on complex problems and increases your flow state. It encourages you to batch small activities into restricted time blocks, instead of having them eat up your precious day.

Use time blocking to make steady progress and avoid procrastination  on significant, time-sensitive matters (Rule 1.3, diligence); build knowledge and skills and prepare adequately for representation (Rule 1.1., competence); and communicate clearly and deliberately with your clients (Rule 1.4, communication).

To learn more, read the related article, Deadlines & Daily Habits: Why Time Blocking Works.

# # #

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. 

SUBSCRIBE           CONTACT