How the Mindfulness Practice of Gratitude Bolsters the Duty of Competency

This month I want to share some of my personal developments and recent discoveries about how the practice of gratitude mindfulness goes hand in hand with our ethical duties as lawyers. For many years, what was classified as “professional development” did not qualify for CLE credit. I never understood why we could not get credit for our self-improvement efforts. With the highest standards of conduct placed on us, the need for self-awareness and self-growth is essential to our ability to fulfill our ethical duties as lawyers as prescribed by the ABA Model Rules of Professional Responsibility and our respective state rules.

It gives me great pleasure to see that in the last several years this restriction has been loosened significantly, and I am able to present on mindfulness and lawyer wellness in a variety of forums in which ethics CLE credit is given to attendees. The ABA has the Commission on Lawyer Assistance Programs (CoLAP), in Texas we have Texas Lawyers’ Assistance Program (TLAP), and most other states have some sort of group that focuses on attorney wellness, including suicide prevention and recovery from alcoholism and substance abuse.

I am in the first year of a three-year term on the TLAP committee and am learning more about the status of lawyer wellness today. We typically are prone to stress, anxiety, depression, burnout/secondary trauma, alcohol/substance abuse, cognitive impairment, suicide, and gambling and other process addictions.

Anything on that list strike a nerve for you?

Law students also rate very high for anxiety as compared to students in other professions: 96 percent for law students versus 70 percent for medical students and 43 percent for graduate students. The 2016 ABA study of approximately 13,000 attorneys revealed that 46 reported concerns with depression, 28 percent suffer from depression, 19 percent suffer from an anxiety disorder, and 10 percent have considered suicide. And I venture to guess that after what we have been through in the past two years with COVID-19, the numbers might be alarmingly higher now. TLAP reports that in a study of 129 participants during quarantine, 28.9 percent had symptoms of post-traumatic stress disorder, and 31 percent had symptoms of depression.

And to further complicate this, we need not only to be able to recognize these things in ourselves, but we also have a duty to help our clients with these issues. We have a responsibility to be uber-trained in all areas of mental health and mindfulness for both ourselves and others. Most of us know that a good diet, regular exercise, and good sleep are the cornerstones of a healthy lifestyle. But one for lawyers that is particularly difficult is the “learning to relax” piece of the puzzle. I literally used to flinch at the word relax and think to myself, relax . . . what is that? I don’t have time to relax . . . too much to do!!!

Helping others has been proven to be a key component of relaxation, and, thankfully, the bar work many of you reading this now do on a regular basis does give you a hand up in the mental health area. Bingo, right? It makes us feel connected, reminds us of how lucky we are, takes our minds off our own problems, and adds a sense of purpose to our lives (“How Helping Others Helps You,” Mental Health America, 2019).

Did you know that the duty of competency in our professional rules can be enhanced and fulfilled by and through the practice of mindfulness?

The Texas Disciplinary Rules of Professional Conduct contains a preamble that sets out a “Lawyer’s Responsibilities.” Paragraph 1 of the Preamble to the Rules states, “A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Lawyers, as guardians of the law, play a vital role in the preservation of society. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.” (Emphasis added.)

Comment 6 to Rule 1.01 (Competent and Diligent Representation) states:

Having accepted employment, a lawyer should act with competence, commitment, and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf. A lawyer should feel a moral or professional obligation to pursue a matter on behalf of a client with reasonable diligence and promptness despite opposition, obstruction or personal inconvenience to the lawyer. A lawyer’s workload should be controlled so that each matter can be handled with diligence and competence. . . . [A]n incompetent lawyer is subject to discipline. (Emphasis added.)

Your state most likely has a similar duty contained in its rules of conduct. When I was preparing my recent talk How the Practice of Gratitude Bolsters the Duty of Competency for TLAP, I was ecstatic to learn that there has been research that the practice of gratitude, in fact, does just that. I relied on Scott Rogers, my co-columnist for GPSolo eReport’s Mindfulness 101 column, for some detailed research on gratitude, and he pointed me to the researcher Robert Emmons, PhD, professor of psychology at the University of California, Davis, whose research showed the following with regard to a daily gratitude practice:

• Benefits your health and mental outlook. In an experimental comparison, those who kept gratitude journals on a weekly basis exercised more regularly, reported fewer physical symptoms, felt better about their lives as a whole, and were more optimistic about the upcoming week compared to those who recorded hassles or neutral life events.
• Bolsters the duty of competency. A daily gratitude intervention (self-guided exercises) with young adults resulted in higher reported levels of the positive states of alertness, enthusiasm, determination, attentiveness, and energy compared to a focus on hassles or a downward social comparison (ways in which participants thought they were better off than others). There was no difference in levels of unpleasant emotions reported in the three groups.
• Helps you achieve your own personal goals. A related benefit was observed in the realm of personal goal attainment: Participants who kept gratitude lists were more likely to have made progress toward important personal goals (academic, interpersonal, and health-based) over a two-month period compared to subjects in the other experimental conditions.
• Increases the likelihood of helping others. Participants in the daily gratitude condition were more likely to report having helped someone with a personal problem or having offered emotional support to another, relative to the hassles or social comparison condition.

You can imagine how happy I was to find that our duty of competency is indeed enhanced by becoming more tuned in to gratitude and by developing the habit of practicing it daily and consistently. I had done my own personal research and had connected the dots for myself in my life, but having these empirical studies back me up gives me more fuel to encourage lawyers to really dig into their mindfulness practices.

What I noticed in my life and practice is that I was improving in all areas stated above. I just began to speak the things I am grateful for, no matter how big or how small, each day as I was leaving the house and getting into my car. It does not have to be anything bigger or more formal than that.

Our legal duty of competency can be fulfilled in ways both big and small by adopting a simple gratitude practice. You will eventually begin to get more done in less time with a higher level of engagement and greater sustainability.

A couple of weeks after my first CLE for TLAP on How the Practice of Gratitude Bolsters Your Duty of Competency, I participated along with TLAP Executive Director Erica Grigg and Terry Bentley Hill, JD, in a lawyer wellness panel for the Houston Bar Association (HBA) 2022 Criminal/Appellate Bench Bar Conference, held in a huge ballroom filled with lawyers both young and old. In my 20-minute segment at the end of the panel, I was able to teach the group a breathing practice, do a short gratitude meditation, and lead them in an interactive gratitude exercise. The director for the HBA was astounded to see all the lawyers in the room with their hands on their hearts and their other hand on their stomachs, slowing their breathing down and focusing on gratitude with me. At the end, the energy in the room was palpable, and I felt fantastic. For me it was a huge personal achievement to finally be able to bring this work I have spent so many years learning and cultivating for myself to others in a real and participatory way. It showed me that staying on track and sticking with what I know to be true is well worth it.

I challenge you to incorporate gratitude into your daily life and to really notice the subtle changes in your energy each day. Let me know about them!

Remember: Mediation. Deep breaths. Exercise. Nutrition. Good sleep. All are components of a healthy mindfulness practice.

Until next time . . . namaste. Please let me know if you have any tips, sources, or experiences with mindfulness you want to share at [email protected].

“You should sit in meditation for 20 minutes a day, unless you’re too busy; then you should sit for an hour.”—Zen proverb