One of my favorite podcasts (other than Above the Law’s “Thinking Like A Lawyer,” of course) is “The Daily,” which is a production of the New York Times. Each weekday, “The Daily” covers a story that is relevant to the recent news, and on Sundays, “The Daily” includes an oral reading of an article from the New York Times Magazine. This week’s Sunday episode was about how some healthcare professionals suffer from moral injury, which is a negative feeling associated with working in a system that might not be promoting the morals that people hold dear. The episode mostly discussed how the commercialization of healthcare has forced physicians to forgo human-based decisions in favor of efficiency and making the most money possible. Listening to this episode got me thinking: do many lawyers also experience moral injury throughout the course of our careers, and can this explain the high rate of burnout experienced by many attorneys?
Numerous lawyers are forced to represent interests that might not necessarily sync with their moral background. For instance, criminal defense attorneys often need to represent people who may have committed serious crimes, and our entire system of justice depends upon everyone, including people who might have done heinous acts, receiving the best legal representation. Even though individuals in such positions may recognize that they promote one public good in representing someone who may have committed bad acts, this does not mean that lawyers do not suffer on a deeper level from these types of representations.
Even if lawyers do not practice criminal defense law, numerous other attorneys face representations which do not completely align with well-established moral principles. Numerous lawyers represent large companies, insureds, and other parties in the civil system of justice which are accused of doing bad things. Even though it is important that every party is represented, and the civil system of justice might ultimately lead to wronged people being fairly compensated, representing a client in such situations can inflict some amount of moral injury.
For instance, numerous times in my career, I have represented clients that were accused of pretty heinous claims, and in all likelihood, had at least some level of culpability in the acts complained of in the litigation. In certain instances, the faults of my clients possibly resulted in deaths or serious injuries to others. Throughout the course of the representations, I would routinely make legal arguments that would try to minimize the amount of exposure my clients had. In some instances, I would get cases dismissed on procedural grounds with the understanding that this would greatly reduce or completely eliminate a recovery for people who have suffered.
At other times in my career, I had very personal exposure to the problems that may have been caused by my clients. At an earlier role in my career, I worked in a given mass torts matter in which I took the depositions of numerous plaintiffs who claimed that my client and others had at least partially caused the illnesses from which the plaintiffs were suffering. Some of these depositions would go on for a long time, and I would really get to know the deponents, and sometimes, their families as well. In some instances, I would even take the depositions in the plaintiffs’ homes, or other times, in hospitals.
I am not going to say that these situations were particularly soul-crushing, and of course, some professionals and other lawyers need to deal with bigger issues throughout their careers. However, I definitely did not go home from work everyday feeling good, and this experience did make me think at times that I was an instrumentality for some bad outcomes like clients not paying restitution to people who were harmed by the client’s bad acts or negligence. This feeling definitely traveled with me throughout my days, since it was difficult to block out the unease I somewhat felt by certain work tasks when I was in my personal life.
Since starting my own practice, I have much more autonomy to choose which types of matters I handle, and I now generally work on matters that do not involve moral injury. However, people should definitely be more cognizant that even though lawyers serve a vital public function in ensuring that individuals and businesses receives representation, this does not mean that lawyers do not feel the impact of taking on certain types of cases. Many lawyers can feel the downsides of moral injury, which might explain some of the burnout that seems to be so ubiquitous in the legal profession.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.
