employment law - brilliantlegalmind.com

Spirited, Moral Injury, and Examining the Concept of Redemption

This post contains references to suicide. It is published with permission from and deep respect for the family of the affected attorney. It is written by my dear friend, Robyn Smith, who I met in law school. Though we have handled cases on the opposite sides of the “v” for much of our practices, we have remained friends and benefitted from sharing our different experiences. We recently shared a post from Bob Coursey, an employer-side employment lawyer. This post from Robyn offers a different perspective but I think you’ll find that both Robyn and Bob think humanity and decency are essential to law practice.

Just in time for Christmas, Ryan Reynolds, Will Ferrell, and Octavia Spencer star in Spirited, a musical comedy adaptation of A Christmas Carol. It’s a fantastic story of human struggle, self-loathing, and redemption. If you have not yet seen the movie, go watch it right now. We’ll wait.

[INTERMISSION]

Finished? You’re welcome. It was great, wasn’t it?

And there could not be a better cinematic explanation of people struggling with something called moral injury – a concept that describes the price paid by people like us, attorneys who work as we are taught, and who exist within a system that tests our personal senses of right and wrong … and who are hurt by it. Moral injury, according to Veterans Affairs, is a psychological injury that comes from perpetrating, failing to prevent, or witnessing events that go against a your deeply held moral beliefs and expectations.

These injuries have been studied in the instances of combat veterans who have had to inflict harm on others, as well as health care workers who have had to turn away people in need of care. Scientists have noted that it changes the brain, but not in the same ways as PTSD. Spirited depicts several folks struggling with their own pasts, presents, and futures, as their choices and career paths have consequences.

The Spirited character to have watched was Octavia Spencer’s. She does as she is told. She conducts the opposition research. She works up the facts. She discloses the truth. She knows how it will be used. She is hurt as the fruits of her efforts are used to destroy other people’s lives. She knows that’s how it will go. But she is just researching, like we do. She’s just portraying facts, like we do. She’s just doing her job … like we do.

And she hurts because of it. Like we do.

I believe that the law industry is designed to subject lawyers to moral injury. We are trained to work in our clients’ best interests and to keep their confidences. We are permitted to withdraw from representations most of the time – but not all. We may only raise an alert when a client is about to inflict certain types of injuries on other human beings. We have knowledge that can weigh on us. We have to argue things that we do not admire or respect. We are complicit in systems that oppress and injure. And whoever structured this industry decided that was okay, at our peril.

Not all of us, and not all of the time, of course. But our ethical rules do not allow us to prioritize our own morality – ever. I don’t think I’ve met a lawyer who has not had to take a position she abhors, or oppose a person she truly believed to be in the right. In those circumstances, we are told, we have to consider our clients’ best interests, the integrity of the tribunal, and a handful of other things that are not our own precious peace of mind.

I represent workers, including attorneys. Some of them know what is happening around them is wrong, and they feel gaslit by the failure of others to speak up or break free. It’s a lonely feeling. Some of the people I admire the most are people who, astonished, have asked me “Am I crazy?” after recognizing a severe and unbearable moral injury and declaring the pain of it. And suffering the fallout. Speaking out against the machine is taboo, isn’t it?

I had an attorney friend who undertook a very important job overseeing Kentucky’s unemployment insurance agency in early 2020. When the pandemic set in, he went to work, putting every ounce of his energy into connecting newly locked-down workers with the money they needed to buy food, medicine, diapers, and medicine. He would call it “the most important thing I’ve ever done.” He saw problems with the system, some ethical, others legal. He rationalized what he could. He opposed the rest. My friend was fired.

He spent the next several months watching in horror as the benefits system crumbled, with workers spending endless months without benefits, hitting metaphoric brick walls in the agency, and having nobody in the agency empowered to advocate for them. My friend gave an interview to a national media outlet, and when the reporter asked how it felt to watch all of the people in pain as they waited for help that was promised but never provided, he responded simply, “It kills me.” A few weeks later, my friend took his own life.

For well over a year, I did what many people affected by suicide do. I talked with people. I raged against the people who hurt my friend and his family. I blamed myself. I researched and read, looking for something to make it make sense. I looked at studies. Everything I learned about depression, anxiety, PTSD, secondary trauma, and how they affected lawyers was really insightful, but never really a complete picture.

Then one day, I was in my car, listening to a science podcast about the “invisible epidemic” of moral injury. I gripped my steering wheel and yelled, struck by the realization that this was the piece that fit. When a principled person leans into his moral fortitude at a time when very little else is available, and when that sense of morality is shattered … it’s a whole lot to come back from. And we are made of flesh and bone, not iron and steel.

I had been staring into the same abyss as my friend. Because the fact is that I truly believed that I had let him down. And I carried with me every cut from every point in my career when I had helped people advance their own interests against my own sense of morality. In recent years, I opened my own firm. I represent only people I want to and do a lot of pro bono.

While I don’t represent people I don’t want to represent, I am still at risk for moral injury every time I see the justice system (that I prop up) hurt people who don’t deserve it. I’ve watched my opposing counsel wince as they open old wounds in my clients in depositions because it is their job. I’ve heard a government lawyer lament, “Robyn, I have no discretion here” when a person’s ability to feed a family was at stake. I’ve seen it, I’ve felt it, and I know that it’s real.

You are reading this piece on a blogsite where my dear friend Claire gives you tools to process, understand, and heal. You are here to learn about the tools to help you work within the sphere of your own control. But in case nobody has told you this lately, it’s okay to conclude that the things outside your control might be wrong. Real wrong. And you are not a freak for wanting to break free from it. It’s incredibly okay to leave. To adapt. To grow.

My favorite scene from Spirited is a deleted scene showcased in the credits. Will Ferrell’s character wants to know what the everlasting effect of a single act can be – a “ripple.” He wonders, “I have to believe, inside the worst of us there is some decency there … we can achieve something miraculous if we only dare.” That’s true. It is. It’s true of our clients, and it is always true of us.

Because it’s not about winning. Or raking in money. Or having other people be afraid of you. That’s the old way of evaluating success in our industry. The new way, and the way Spirited has considerately reminded us of, is that you can take account of your own worth. And you can decide when someone has asked of you the unaskable. And you can say “no.” You can heal, and you can help others heal. And you can determine your fate from there.

Robyn Smith is an employee-side lawyer at The Law Office of Robyn Smith in Louisville, Kentucky. She chose the area of employment law to protect workers, who she believes are Kentucky’s greatest resource. Robyn has represented workers in litigation against massive institutions, both public and private. She is also a mother of two and committed to improving her community and the profession. Robyn has been honored for her pro bono work, is a coach for law school client counseling competitions, and teaches Law Practice Management at the Louis D. Brandeis School of Law at the University of Louisville.

Want to learn more about mindfulness and compassion? Check out the new book from our founder, Claire E. Parsons, called How to Be a Badass Lawyer which is now available.

Like this post? Subscribe to the blog here or follow us on social media:

Compliance with Care? How Intentional Lawyering Can Save the World

Editor’s Note: This is a guest post by experienced employment attorney and friend of the blog, Bob Coursey. You’ll learn about Bob’s character and values just by reading this piece but for more detail check out his bio below.

I was talking with a fellow management-side employment lawyer (who is also a friend) recently and I made an offhand comment encouraging her to go out and continue doing the good work of protecting our nation’s employers.

She corrected me: “Actually, I feel like most of what I do when it comes to counseling employers is protecting employees . . .”

She was 100% right.

I told her I was glad she “corrected” my comment about our job being all about protecting employers. I further told her I felt a little silly that we were even having this exchange, because this is one of my pet issues: I believe there is a common misconception among many (including some of my close friends and family) that, as an employment lawyer who counsels and represents management, my job is somehow anti-employee.

That is so far from the truth. But convincing anyone of that is not the point of this article. Instead, my point is that by lawyering with intentionality we can make the world a better place. My life experience is as a management-side employment lawyer, so the specifics I discuss here relate to employment law.

I’ve been a lawyer for a long time now, and it’s clear to me that management-side employment lawyers are in a position to be a great force for good for employees. But being in that position and acting on it are two different things. I can look to my own 24-year career as a management-side employment lawyer and see that.

Early in my career (before many humbling life experiences, and before discovering meditation, mindfulness, and intentionality), I didn’t consider, at least not with any intentionality, the bigger picture of my counsel to and representation of my clients. Being a zealous advocate meant the client’s interest was my singular focus. There’s nothing inherently wrong with that philosophy. I was very effective and abided by all of my professional ethical duties.

Fast forward a couple decades. I’m a work in progress, like all of us, but I feel confident saying the years have made me wiser when it comes to how I advise my clients.

If you’re not interested in making the world a better place, this article isn’t for you, and that’s fine. But for those of you lawyers who want to be a force for good but aren’t sure how, let me remind you that our jobs likely provide us many opportunities to be a force for good–if we’re intentional about how we lawyer. By lawyering with intentionality, we can help our clients do well by helping them do good.

There’s a lot of suck in the world. To counter the suck, we need good people to act. For most people, the ability to do good is often limited to their own direct actions. But if you’re a lawyer, doing your job often means advising other people on how to act. There’s power there.

We wield that power whether we are intentional about it or not.

Let me be clear: Nothing I’m saying here should be interpreted as suggesting we lawyers violate, or even flirt with violating, our ethical duties to our clients. Our counsel to our clients should never put our clients’ interests or legal compliance subservient to the interests of others. What I am suggesting is that for lawyers to ignore the bigger picture, the broader community of interests, is often to do a disservice not only to those other interests, but to our clients too.

It’s easy for lawyers to fall into the trap of thinking of the much of the world as an us-versus-them environment. We rarely hear from our clients when things are rosy. The world can sound like a pretty troublesome place when every call you take, every email you read, is about disagreements, arguments, accusations, and various troubles between humans. For those lawyers who spend a significant part of their time defending their clients in litigation (like I did for the first 10 years of my career), it may be even harder to avoid falling into this us-versus-them trap.

Now 24 years and lots of life experiences into my career, my heart is softer, my perspective is broader, and at the same time I feel like I’ve never been a better legal adviser. I guess practice makes perfect, because I’ve spent thousands of hours counseling companies to:

-protect employees from harassers/bullies/jerks
-accommodate employees with health, family, religious, or other needs
-support or coach employees instead of imposing discipline
-communicate better with employees
-promote deserving employees
-allow employees to work from home for health or other personal reasons

These are some examples of the type of employee-friendly counsel that I offer when I believe it’s in my client’s best interests, which is almost 100% of the time.

It’s exceedingly rare that good legal counsel in a workplace situation calls for taking an aggressively antagonistic, anti-employee approach. When those unfortunate situations present themselves, we management-side employment lawyers should counsel our clients accordingly. But treating employees with humanity, dignity, and fairness should always be the default.

In my field of employment law, this philosophy yields good client results. How do I know? Clients tell me. I see the lawsuits that don’t get filed. I see the careers that aren’t ended prematurely. I see workplace relationships salvaged. I hear about workplaces where trust exists between employees and management. I could tell you about countless situations that had lawsuit written all over them, but because I worked with my client to take an intentionally employee-focused approach to handling the situation, litigation was avoided.

I believe the same philosophy can yield similar positive results in other areas of law. Regardless of the area of law, there’s almost always a broader perspective to consider than our clients’ specific interest. There’s almost always going to be others affected by our clients’ decisions and actions, for better or worse. For me, it’s my clients’ employees and those employees’ families and communities that I choose to consider with intentionality when I advise my clients. Who is it for your clients?

The world can look like a very dark place to a lot of people in 2022. Our clients and their communities are dealing with everything ranging from mental health struggles to hate and violence. As lawyers, the nature of our job means that we are sought out by clients when they are facing some of the hardest times in their lives, and they look to us for counsel through these dark times.

Are lawyers going to solve all of these problems? Of course not. But in my small part of the world, I have no doubt that my clients have a huge role to play in their employees’ lives, which means that as their employment lawyer, I’m in a position to do some good, not only for my clients, but often in the broader sense. And the world needs every single bit of good it can get. I bet you can say the same about your clients, and your role in advising them.

Our jobs give us the privilege of having a part to play in the lives of many people, which has ripple effects on the world. It’s up to us what we do with that privilege, whether those ripples are positive or negative. Today, I’m going to look for opportunities to do some good in the world. I hope you’ll join me.

Author Bio: Bob Coursey has been an employment lawyer for over 20 years. He spent his first 10 years of practice at Fisher Phillips, one of the most respected employment law firms in the country, where he defended companies in employment related litigation. He then spent 11 years at Employers Council, where he focused his practice on keeping employers out of trouble. In 2021, Bob started his own company—Modern Age Employment Law—where he counsels, represents, and trains employers who are looking for a modern approach to their employment law and HR challenges. Bob is licensed to practice law in Utah and Georgia. He’s also a certified Senior Professional in Human Resources (SPHR) and SHRM Senior Certified Professional (SHRM-SCP).Despite all that very dry sounding info, Bob is actually a real person too. He’s a music lover, an OK drummer who still dreams of being a rock star, a daily meditator and certified meditation teacher, a Peloton enthusiast, a t-shirt re-designer, a lover of Utah’s outdoors, and a husband and father of four kids who bring him immense joy.

Want to learn more about mindfulness and compassion? Check out my new book, How to Be a Badass Lawyer, for a simple guide to creating a meditation practice of your own in 30 days. And to share mindfulness with your little one, check out my new children’s book, Mommy Needs a Minute.

Like this post? Subscribe to the blog here or follow us on social media: