Being a Happy, Healthy, Ethical Lawyer

Orin Kerr posted a question on the Volokh Conspiracy from a not yet employed 3L looking for career advice. There are good suggestions in the comments, but the best one is from "Anonobvious," who linked to Patrick J. Schiltz's law review article, "On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession."*

It was written in the late 90s, so the numbers are a little off (though that amplifies the points made), but the reasoning is simple: Big law firms are driven by money. Money does not make one happy. People driven by pressure to make money are more likely to behave unethically. If you want to be happy and ethical, stay away from big law firms.

On why big firm lawyers don't give up a little extra money for a lot more happiness:

More importantly, though, the flaw in my analysis is that it assumes that the reason lawyers push themselves to make so much money is the money itself. In other words, my analysis assumes that the reason lawyers want to earn more money is that they want to spend more money and enjoy the things that money will buy. When put in those terms, giving up 600 hours of life for another $40,000 on top of a $160,000 salary makes no sense for most lawyers. What you need to understand, though, is that very few lawyers are working extraordinarily long hours because they need the money. They are doing it for a different reason.
Big firm lawyers are, on the whole, a remarkably insecure and competitive group of people. Many of them have spent almost their entire lives competing to win games that other people have set up for them. First they competed to get into a prestigious college. Then they competed for college grades. Then they competed for LSAT scores. Then they competed to get into a prestigious law school. Then they competed for law school grades. Then they competed to make the law review. Then they competed for clerkships.229 Then they competed to get hired by a big law firm.230 Now that they’re in a big law firm, what’s going to happen?
Are they going to stop competing? Are they going to stop comparing themselves to others? Of course not. They’re going to keep competing — competing to bill more hours, to attract more clients, to win more cases, to do more deals. They’re playing a game. And money is how the score is kept in that game.

On the difference between "legal ethics" and what people generally think of as ethical:
As a law student, and then as a young lawyer, you will often be encouraged to distinguish ethical from unethical conduct solely by reference to the formal rules. Most likely, you will devote the majority of the time in your professional responsibility class to studying the rules, and you will, of course, learn the rules cold so that you can pass the Multi-State Professional Responsibility Exam (“MPRE”). In many other ways, subtle and blatant, you will be encouraged
to think that conduct that does not violate the rules is “ethical,” while conduct that does violate the rules is “unethical.”
It is in the interests of your professors, the organized bar, and other lawyers to get you to think about ethics in this way. It is a lot easier for a professor to teach students what rules say than it is to explore with students what it means to behave ethically.

On how the Stoics have it right about how to truly find happiness:
This is the best advice I can give you: Right now, while you are
still in law school, make the commitment—not just in your head, but in your heart—that, although you are willing to work hard and you would like to make a comfortable living, you are not going to let money dominate your life to the exclusion of all else. And don’t just structure your life around this negative; embrace a positive. Believe in something—care about something—so that when the culture of greed presses in on you from all sides, there will be something inside of you pushing back. Make the decision now that you will be the one who defines success for you—not your classmates, not big law firms, not clients of big law firms, not the National Law Journal. You will be a happier, healthier, and more ethical attorney as a result. ... (“[T]here may be no way to permanently increase the total of one’s pleasure except by getting off the hedonic treadmill entirely. This is of course the historic teaching of the Stoic and Epicurean philosophers, Buddha, Jesus, Thoreau, and other men of wisdom from all ages.”) (quoting Philip Brickman & Donald T. Campbell, Hedonic Relativism and Planning the Good Society, in ADAPTATION-LEVEL THEORY: A SYMPOSIUM 287, 300 (M.H. Appley ed., 1971).

Please, if you are a law student or a lawyer, read this article. It may be some of the most valuable time spent in your career.

* - 52 Vanderbilt Law Review 871.


Myke said...

I hate to quote Frank Herbert, but fear really is the mind killer.

I think the reality is that most unethical decisions arise not from a lack of moral compass, or a misunderstanding of ethical rules, but rather from simple, naked fear. If I don't win this case by any means necessary, I fear I will not advance in the firm and not make as much money. I fear the corresponding loss of social status. I fear that my wife may not find me as attractive. I fear I may lose social status.

To behave ethically and risk losing the case is terrifying. I am not a bad person, I am a scared person.

There is a difference, but not much, because the outcome is the same. Morally repugnant behavior and cowardly behavior are sometimes so close they are hard to distinguish from one another.

Piglet said it best. It's hard to be brave when you are only a very small animal.

Mr. X said...

If you read the whole article, you'll see that a lot of it isn't even that defensible. It's not fear, but a desire to fit in and a knowledge that it's easy not to get caught.

Bruce Godfrey said...

This article is exceptionally wise.

While I have worked in a variety of practice environments from economically-marginal solo practice to contract-based big-firm work for very solid pay, I have not regretted once in the 4,700-odd days since I was sworn in in Maryland that I did not personally go the big-firm route. I am someone occasionally given to brooding and regret, but never once have I regretted avoiding full-time permanent employment with a large law firm.

I suspect that the "fitting in" part is a very big part of it, Mr. X - additionally, the sense that "real lawyers break the rules and I am a REAL lawyer." The insecurity factor is a big deal, a very big one.

Online LSAT Prep Course Instructor said...

I have worked in both environments: the big law firm and a much smaller setting in a smaller market. I wholeheartedly agree with the notion that big firm lawyers are insecure, competitive creatures. I spent 3 1/2 years in that environment, and it sucked the life out of me. I almost saw myself becoming that type of lawyer, and I had to get out. It just isn't normal, it's unhealthy, and it breeds a certain contempt for the rest of society. Wow, what an awful place to be.