by Heidi Alexander, Filippa Marullo Anzalone, Laurie Cappello
In 2017, multiple nationwide studies on the well-being of lawyers and law students culminated in the release of a report from the National Task Force on Lawyer Well-Being (Task Force Report). The Task Force Report highlighted distressing data indicating that lawyers suffer from depression, anxiety, and substance use at rates higher than the general population. It concluded that the legal profession was at a tipping point and presented recommendations and action plans for building a more positive future. Following the release of this landmark document, the Massachusetts Supreme Judicial Court formed an initial Steering Committee on Lawyer Well-Being to investigate, report on, and issue recommendations regarding the state of lawyer well-being here in Massachusetts. That work led to the release of the Steering Committee’s 2019 Report, available at https://www.mass.gov/doc/supreme-judicial-court-steering-committee-on-lawyer-well-being-report-to-the-justices/download. The Report included several recommended actions with respect to legal practice, legal education, and the administration of law in order to mitigate the serious physical, mental, and financial well-being challenges faced by present-day Massachusetts attorneys, judges, and law students. In January 2020, implementation of those recommendations began to move forward under the direction of the SJC Standing Committee on Lawyer Well-Being, an eighteen-member committee representing nearly every legal sector in the Commonwealth.
Now, fast forward to 2021, a year after the COVID-19 pandemic began, shaking up every industry and impacting individuals across the globe. It will come as no surprise that five years after the seminal 2017 studies, the data on well-being in the legal profession has not changed much. In fact, a recent peer-reviewed study as well as an ABA study found that women lawyers are considering an exodus from the legal profession due to the pandemic as well due to mental health problems, burnout, or stress. Other recent studies have found higher rates of suicide and suicide ideation among attorneys; higher stress among attorneys of color on account of their race and ethnicity; and that stigma continues to pervade the profession with large numbers of lawyers that say they cannot discuss well-being issues with their employer without worrying it will damage their career or livelihoods.
Despite this data, it is not all doom and gloom for the legal profession. The increased awareness of well-being in the legal profession has paved the way for rethinking how to make positive organizational and culture changes, and how to reduce stigma around seeking help and self-care. In June 2021, the Standing Committee published a statement on “Recommendations for Legal Workplaces Post-Pandemic,” calling on legal employers to seize this opportunity to rethink norms, structures, and policies that will benefit everyone in the workplace and create a culture of inclusion. Massachusetts is fortunate to have not only the strong support of the SJC to move this work forward, but also a cadre of well-being pioneers, innovators, and leaders throughout the profession advocating for change to improve the profession. To support the great efforts of so many across the Commonwealth, the Standing Committee created a Legal Well-Being Network to share resources, ideas, and best practices. The foregoing discussion captures the work of two members of the Legal Well-Being Network and leaders in this space, Filippa Marullo Anzalone, a Professor and Associate Dean at Boston College Law School and Laurie Cappello, Mintz’s first Director of Well-Being. Professor Anzalone’s work bears out some of the aforementioned concerns around well-being in the profession through real stories conducted via student interviews, thus creating awareness of well-being before those students enter the profession. Inaugural Well-Being Director Laurie Cappello shares the well-being work at Mintz as an example of the progress being made by some forward-thinking legal employers.
Connecting Legal Education to the Legal Profession
Four years ago, Professor Anzalone designed a course at Boston College Law School called Mindfulness & Contemplative Practices for Lawyers, as a direct response to the National Task Force Report. One significant course assignment has students interview a practicing attorney about work-life integration and attorney well-being programs that their respective law offices provide. The following stories are a sampling of some of the content gleaned from these one-on-one interviews.
Overall, many interviewees described being disenchanted with what they termed “big law culture” in large part because of the lack of work-life balance. Some interviewees indicated that firm culture enables or even encourages bragging, especially among partners and senior associates, about long hours, time away from family, and little or no sleep. A theme emerged that firms need more buy-in for well-being programs and practices, especially through modeling and acknowledgement by firm management, senior partners, and senior associates. Some newer associates commented that despite their firm’s well-being focus, it was challenging to take time off while having to answer to frustrated partners. Furthermore, interviewees suggested that firms need to be thoughtful about their well-being offerings. Oftentimes, associates do not take advantage of these programs because of the pressure to meet billable hour requirements. One interviewee noted that the benefits of a midday exercise break are negated by the stress of wondering about what could go wrong if she was needed during her exercise break. Moreover, interviewees commented on the timing of offerings, indicating that they should be scheduled at times that make sense in the rhythm of an attorney’s workday (i.e., not scheduled against standing meetings). Interviewees praised perks that the firm provided like gym discounts, food deliveries, childcare, and dry-cleaning services, which all helped to lower stress levels.
In-house counsel interviewed shared views different from lawyers at firms, describing environments as “supportive” and “understanding.” This response was similar to smaller firms, where interviewees acknowledged a lack of formal well-being programs but a feeling of intimacy, friendliness, and openness in the office. Finally, there were a host of interviewees, especially those with young children, at both large and smaller firms who would prefer to leave work and not engage in any non-work related event, even if part of well-being programming.
Generally, nearly all the interviewees noted that work-life balance and well-being had suffered during the pandemic and that they felt that they were on call 24/7 with no refuge from work. Finding balance, as indicated by these attorneys, is essential for enjoying the position and staying in the organization for the long term. One interviewee wished that “if only companies and firms would realize that offering more time off and setting more realistic expectations was a more common practice” in the corporate world, then employee productivity and satisfaction would be much higher. A refrain heard often was that valuing associates and other employees as “real people” with lives and responsibilities outside of work, and providing “flexibility, a good environment, and interesting work” are paramount. The take-away for most of the law student interviewers was that the time is right for law offices to reimagine the practice of law in a way that can accommodate both the clients’ needs and the well-being and health of the practitioners and employees.
An Amlaw 100 Law Firm Model
Mintz first implemented a formal well-being program called Mpower in 2006. The initial focus was to support and improve employee physical health. Over time, Mintz has expanded the program to cover additional aspects of employee well-being. The success of this program is credited to the individuals and committees responsible for creating and effectuating the programs, strong leadership support and well-being champions, leveraged opportunities with benefits providers, and relationships with related organizations such as the SJC Standing Committee on Lawyer Well-Being, Mindfulness in Law Society, Lawyers Concerned for Lawyers of Massachusetts, and the Institute for Well-Being in Law.
Mpower – with the tagline “Your Health, Your Well-Being, Your Life” – was introduced to the firm as a program offering discounted gym memberships and walking maps for each office (to encourage movement throughout the day), and periodic emails and presentations providing education on various well-being topics. Today the Mpower program consists of seven components: financial health, inclusion, mental health, mindfulness, physical fitness, physical health, and walking maps. The newest components include inclusion, mental health, and mindfulness.
Inclusion has an essential relationship to well-being. If a person does not feel included in his or her workplace culture, his or her well-being and ability to perform at his or her best will be impacted. Mintz is fortunate to have Narges Kakalia, a passionate and talented Director of Diversity, Equity & Inclusion, to help support the firm’s goal to foster a culture in which all individuals can bring their whole, unique selves to work, while feeling both valued and respected. DEI Director Kakalia works collaboratively with Well-Being Director Cappello to develop information and resources shared through Mpower. For example, in June the firm posted a message from the Managing Member (Partner) supporting Pride Month, and communicating the importance of using appropriate gender pronouns as a step toward respecting people’s gender identity and creating an inclusive environment for people of all genders.
Inspired by the National Task Force Report, in 2018, Mintz became an inaugural adopter of the ABA Well-Being Pledge & Campaign, and committed to the seven-point pledge identified in the Campaign to raise awareness to address the legal profession’s troubling rates of alcohol and other substance-use disorders, along with mental health issues. The pledge is listed on the Mpower intranet home page and Mental Health page, and includes a statement in the firm’s Core Value Policy packet reviewed with all new hires. The site contains links to confidential screening tools, videos (including the ABA Anti-Stigma Video) and recordings of past presentations. Mintz continues to strengthen its commitment to employee well-being and recently became a Founding Champion sponsor of the Institute for Well-Being in Law (IWIL) which was formed to carry on the movement launched by the National Task Force.
In December 2016, Mintz held its first Introduction to Mindfulness presentation, followed by an 8-week Mindfulness at Work Program beginning in January. The program was so well received that Mintz has offered it each subsequent year. Mintz also has dedicated meditation space in its Boston and D.C. offices, offers live virtual weekly meditation sessions, and provides additional resources for mindfulness including the Mindfulness In Law Society.
Professor Anzalone’s class, in its 5th year, and Mpower, celebrating its 15th year, are among the efforts underway to help lawyers thrive in the profession. By continuing to expand awareness of the challenges of law practice and resources available as early as law school and throughout legal careers, we will make positive steps toward a better future for the legal profession. For more information about the efforts of the SJC Standing Committee on Lawyer Well-Being or to get involved, visit lawyerwellbeingma.org or contact Director Heidi Alexander, firstname.lastname@example.org.
Heidi Alexander is the Director of the Massachusetts Supreme Judicial Court Standing Committee on Lawyer Well-Being and formerly served as the Deputy Director of Lawyers Concerned for Lawyers. Heidi attends to her own well-being by coaching CrossFit and youth sports, competing in powerlifting, and most importantly spending time with her three young kids.
Filippa Marullo Anzalone has served as Professor of Law and Associate Dean for Library and Technology Services at Boston College Law School since August 2002. She teaches a course called Mindfulness & Contemplative Practices for Lawyers at BC Law. Before BC, Filippa worked at Northeastern University School of Law, law firms, and public libraries.
Laurie Cappello is the Director of Well-Being for Mintz, and leads the strategic development, direction, communication, and management of the Mintz well-being programs. Laurie is active in the local and national well-being community and is the Vice President of the Mindfulness in Law Society (MILS) and the Co-Chair of the MILS New England Chapter
There is a glut of new law school graduates. One former law school dean has estimated that there is a need for approximately 25,000 new lawyers each year. Tamanaha, Failing Law Schools p.139 (2012). On average, law schools have been graduating almost twice as many lawyers each year. Id. This situation has persisted since 2009. One result of this glut is that many well-educated men and women pay (or borrow and pay) up to $200,000 for a law school degree, but then are unable to find employment as lawyers. There is a market disconnect, an inefficiency of staggering proportions. Id.
Some believe that the problem is just a temporary dislocation in the market which will, in due course, right itself. I disagree. Yes, there has been some improvement since 2009. It is true that the entering classes at law schools today are 20-25% smaller in the aggregate than they were at the peak, in Fall 2010. Although that shrinkage is good, it is still not enough and it took too long for this contraction to occur. In the meantime, thousands upon thousands of law school graduates – perhaps one hundred thousand graduates in round numbers – found themselves up to $200,000 poorer, often with long-lasting non-dischargeable debt, with no real prospect for legal employment. I believe that it does not have to be so. A non-market solution should be found.
An Historical Perspective
In the nineteenth century, most lawyers were trained not in law schools but rather in clerkships with practicing lawyers. Harne, Legal Education in the United States, p.27 (1953). As of 1900, the majority of American lawyers had not attended law school or, for that matter, college. Moline, “Early America Legal Education,” 42 Washburne L.J. 775, 801 (2003). Law was a profession that one joined by apprenticeship.
Although I am not recommending we return to this approach, it did have several advantages. First, young soon-to-be lawyers learned by doing; they got practical experience. Second, there was an effective cap on the number of lawyers who could come into the profession at any one time because taking on an apprentice was a time-consuming task usually involving intensive one-to-one teaching. By contrast, law schools permitted one professor to instruct scores or hundreds of students at a time.
By the start of the twentieth century, law schools had supplanted clerking and apprenticeship as the dominant means of legal training. Harne, p.82. And, because of the potential high student-to-faculty ratio, law schools became substantial revenue centers for universities. E.g. Harper, “Law School as Profit Centers,” The American Lawyer Daily (Sept. 7, 2012). It was in the institution’s short-term financial interest to admit as many “qualified” individuals as its classrooms could hold, irrespective of whether they ever obtained work as a lawyer. Indeed, it was in the institution’s financial interest to build more classrooms.
In the mid-20th century, more than a few students went to law school with no interest in becoming lawyers, but because they saw a J.D. degree as a credential for advancement in business, politics, or government. However, as business schools (which were only two years in length) refined their curricula and became more widely respected, the M.B.A. degree began to fulfill this role. Additionally, specialized schools of politics, policy and government sprang up. In the last several decades, my impression is that law schools were operated to turn out lawyers-to-be, and they can no longer expect to have many graduates find comparable employment in business and politics.
2009 Recession and the Shift
Law schools, however, continued to grow as long as large private law firms (“Big Law”) looked to law schools to fill their growing cadres of first year associates, typically hiring law students for the summer between their second and third years of study, and then making offers of post-law school employment to those who performed well, while taking into account the projected hiring needs of the firm a year hence.
Such law firms regularly rode the boom and bust cycle of other parts of our economy. Woe be the law student who graduated during a brief one or two year recession. There was always going to be a new crop of fresh law school graduates to choose from. Thus, when a recession was over, law firms rarely went back to look at applicants who happened to graduate during that recession unless an applicant had done something in the interim (like clerking for a judge or working for a highly touted government agency) that burnished his or her credentials and kept her “fresh” for her re-entry into the private job market. This was the nominally self-correcting market cycle that only left behind portions of a year or two of law school graduates who had the misfortune to finish their studies in a brief recession.
In contrast with the small cycles of the past, the collapse of the legal employment market in 2009 was deep, long-lasting, and truly dramatic. See Tamanaha. In addition, the 2009 recession occurred at a time of technological change that is in the process of shrinking the domestic legal employment market. Just as one example, documents at one time reviewed by law firm associates for relevance and privilege are now likely to be stored electronically and capable of being sent by a mouse click halfway around the world to be reviewed for relevance and privilege by persons trained to do so in a foreign land at a fraction of the domestic cost.
One can debate the pluses and minuses of this shift, but the shrinking job market for law school graduates is hard to miss. Tamanaha, p.139 (45,000 graduates annually chasing an estimated 25,000 openings). We can also debate whether law schools were slow in coming to the realization that the marketplace for their graduates had fundamentally contracted, but at this time there is little doubt that it has. Chances are that, this summer, an embarrassing number of newly-graduated law students simply did not find jobs.
A Simple Proposal
Law schools are not to blame, neither individually nor in the aggregate. No one law school can solve the problem. But law schools are an essential place to focus on the solution.
So, how could this have been prevented? Better, how can it be prevented from happening again and again in the future? Simple. Make real employment rates a key component of law school accreditation and, in addition, cap incoming classes for any law school where some percentage (say 85%) of its graduates have not procured real legal employment within six months of graduation.
Law school accreditation is generally run by the American Bar Association. This has not been without controversy. In fact, the ABA’s accreditation process was at one point the target of an antitrust suit filed by the Department of Justice. E.g., Tamanaha, pp.11-19. Nevertheless, currently the accreditation process requires law schools to report on some metric the percentage of their graduates who are employed in legal jobs. See Tamanaha pp. 71-74 (law schools use various questionable methods to inflate reported employment statistics). But it does not appear that the ABA actually uses those numbers for the purpose of accreditation.
Imagine, for a moment, that, in the accreditation process, a law school were told that it should not matriculate more students than 120% of the number of its students who got real, paid legal (i.e., J.D.-required) employment from the last class it graduated. (I suggest 120% because there will always be some folks who don’t want a legal career, don’t seek employment as a lawyer, or don’t pass the bar exam.) If this were the standard, what might happen?
First, I suppose, each law school would spend still more money on its legal placement efforts than it does today. Probably not a bad thing.
Second, I predict, law schools would restructure their programs to include still more clerkships, internships, and other practical experiences, which often lead to jobs, rather than treat those experiences as a palliative for third-year blues. Probably, a good thing.
Third, law schools would downsize, even when their university’s revenue center motive would counsel expansion, not to run afoul of an accreditation standard. Law schools might try to match the size of their classes to the actual demand for their graduates. Definitely, a great thing.
This potential accreditation standard does not mean that law schools would suddenly become less diverse. A reduction in size of the class does not mean a reduction in the percentage of women, students of color, LGBT students, or students from any socio-economic background. This potential accreditation standard also does not mean that there is no role for private and public employers in addressing the issue, but it may give the law schools themselves the incentive to bring together those disparate employers to explore changes to how law students and recent graduates learn practical skills and find employment.
Something has to change. My suggestion is that the accreditation process is where that change should begin. And if the ABA is unwilling or unable to address the situation, then state Supreme Courts, which set the standards for admission to the bar, should be the catalysts for such change.
Richard J. Yurko is the founding shareholder of the business litigation boutique, Yurko, Salvesen & Remz, P.C.
by Lisa Goodheart
I recently attended a conference on diversity and inclusion and the future of Boston law firms in a global economy. The event, which was ably organized by Macey Russell, Co-Chair of the BBA’s Diversity & Inclusion Section, was well-attended, and the discussion was lively and constructive, with a panel of impressive and thoughtful speakers and active participation by an engaged audience. But the issue of diversity and inclusion within the Boston legal community remains a problematic one, and progress has been painfully slow.
Recent statistics reflect a disappointing reality. For example, NALP recently reported that among all firms and offices listed in its nationwide 2011-2012 NALP Directory of Legal Employers, just 6.56% of partners were racial or ethnic minorities, and just 2.04% of partners were minority women. About 29% of the firms or offices reported no minority partners at all, and 57% reported no minority women partners. The reported numbers for associates were not much better – over 17% of the firms or offices reported no minority associates, and over 27% of offices reported no minority women associates. NALP’s numbers for openly gay, lesbian, bisexual and transgender lawyers also remain relatively low, with 1.44% of partners and 2.43% of associates at the reporting firms and offices being openly LGBT lawyers, as of 2011.
Looking to Boston-specific numbers does not provide a more comforting perspective. As reported by NALP, the percentages of diverse partners and associates remain lower in Boston than in many other major cities. For the 2011-2012 reporting cycle, just 3.21% of partners were minorities, and just 1.01% were minority women. Over 48% of the reporting Boston firms and offices had no minority partners, and over 74% had no minority women partners. Over 11% had no minority associates and nearly 23% had no minority women associates. (City-specific statistics for LGBT lawyers are not included in the available NALP reports.)
How should we respond to this state of affairs? One refrain that is frequently heard is the need for better education about the “business case” for diversity and inclusion. In a nutshell, the business case for diversity rests on the premise that as our economy becomes more global in nature, significant corporate clients are themselves becoming more diverse and inclusive, as they serve an increasingly diverse customer base and answer to an increasingly diverse shareholder base. It follows that the law firms best positioned to serve these increasingly diverse corporate clients will be those that are able to offer correspondingly diverse teams of legal talent. Law firms should therefore pursue diversity within their ranks to gain a competitive edge.
Certainly, it’s logical to think that appealing to the self‑interest of law firms and other law offices might be the most persuasive way to get them to make a more serious, intense and sustained commitment to the recruitment, development, support and retention of more diverse lawyers. But does the business case for diversity really provide the most productive way for us to think about this issue? It is by now a familiar argument, and it has not succeeded to date in producing a true sea change in law firm demographics. The status quo has proven to be a remarkably stubborn thing.
At the BBA’s Law Day dinner in May, Harvard professor Michael Sandel spoke to us about what he calls the moral limits of markets, and what money can’t buy. Professor Sandel highlighted the degree to which economic analysis has permeated virtually all spheres of modern life, with sometimes pernicious and counter intuitive effects. Sometimes, he suggested, things have a non-monetizable value, and the relentless drive to convert our values into marketplace terms can have a corrupting effect that paradoxically undermines that value. In terms of diversity within our profession, perhaps we need to acknowledge that a robustly diverse and inclusive Boston legal community is one of the inherently valuable things that are worth pursuing for reasons that are not rooted in concerns about market share or enhancing profitability.
At the BBA, the investment in fostering a more diverse and inclusive legal profession is manifested in many ways. It is embodied in our partnerships with various affinity bar associations, in the annual BBA Beacon Award for Diversity and Inclusion, and in the establishment of the Diversity and Inclusion Section for our members. It is reflected in initiatives such as the Mentoring Program, the BMC Internship Program, other pipeline and recruitment work with area law schools and the Boston public schools, and events like the above-mentioned conference. What lies behind this investment of effort? No doubt, these programs and initiatives are pursued in part because they are attractive to the BBA’s members, potential members and sponsor organizations. In that respect, they are part of the BBA’s own “business case.” But the driving impulse behind theBBA’s commitment to diversity and inclusion is something much more fundamental.
The true motivation for the BBA’s emphasis on diversity and inclusion, in my view, is – and should be – that we are inspired to build the kind of legal community that we want to be a part of and are proud to claim as our own. The BBA is an organization of members who choose to come together, not only for reasons of professional self-interest, but also to advance the causes and promote the values we collectively care about, and to find the professional fulfillment and personal satisfaction that comes from doing so. Those values include justice, equality and opportunity. A profession with a homogeneous and exclusionary demographic profile is simply not consistent with those values.
Achieving a substantially greater degree of diversity and inclusion is hard, subtle, time‑consuming work. Of course, if it were easy, it would have already been accomplished by now. But lawyers relish hard problems and are relentless in pursuing solutions. And I am confident that we will collectively muster the resourcefulness and creativity to do much better. Ultimately, the reward for doing so will be the greater strength, energy and richness of a legal community that all of us fully claim as our own.