Well Being as Part of Competence in Public Defense

I have come to believe that showing up strong and energized is one of the most important things we can do for the people we represent.

I didn’t always see it this way. In the first few years, when I showed up every Friday with a pile of misdemeanor cases on for trial, and tried a boatload of them, I also had a not insignificant number of late nights in the bars with my colleagues and naps on the therma-rest under my desk.

My about-to-be-fifty-year-old body doesn’t tolerate that sort of schedule anymore, just like it doesn’t tolerate trials fueled by vending machine lunches of picante corn nuts combined with peanut M&Ms (even though that’s a completely delicious and satisfying lunch, at least in the moment).

I now see my well being as central to my duty of competence. It is harder for me to stand tall and refuse to back down from an important legal fight when I’m so exhausted I fear my own knees might give out. I’m not as able to be open and receptive to the stories and needs of the people I represent when I am so stressed out that I feel like I can’t handle one more thing. I’m not able to hear communications about ways that I can learn, grow and improve if I’m anxious and irritated.

The skill we need to develop and use the most in every aspect of our work as public defenders—listening—requires some reserve of energy and emotional balance.

We know our profession struggles with substance use, depression, anxiety and secondary traumatic stress. (I’ve written about this here and here.) The impacts of these struggles can include moral injury (the word I prefer to burnout, as explained here). The impacts also include diminished work performance and struggles with basic competence. 40 to 70 percent of disciplinary proceedings and malpractice claims against lawyers include substance use or depression, and often both. (D. B. Marlowe, Alcoholism, Symptoms, Causes & Treatments, in STRESS MANAGEMENT FOR LAWYERS 104-130 (Amiram Elwork ed., 2d ed., 1997).

While basic competence requires us to provide competent representation (ABA Model Rule 1.1) and requires diligence in client representation (ABA Model Rule 1.3), basic competence also requires more than just keeping up with training and casework. It requires well being.

The ABA includes well-being as an indispensable part of a lawyer’s ethical duty of competence. The 2017 ABA Well Being Report defines lawyer health not solely by absence of illness, but by a positive state of wellness. It includes lawyers’ ability to make healthy, positive work/life choices to assure not only a quality of life within their families and communities, but also to help them make responsible decisions for their clients. It includes a wonderfully broad definition of well being that encompasses emotional, occupational, intellectual, spiritual, physical and social thriving.

I love the ABA definition of well being as “a continuous process toward thriving across all life dimensions.” Time working often feels like it competes with time to do things like being with my family, exercising, or shopping for nutritious meals.

While there never seems to be enough time, it’s useful to me to stop seeing work and well being as in competition. And to remember that competence includes well being. The time I take to do yoga or go hiking isn’t just for me. It helps me show up strong, focused and ready for the challenging work of public defense.