The Role of Mindfulness in Effective and Ethical Lawyering

The practice of mindfulness can be defined as paying attention in a particular way: on purpose, in the present moment and without judgment. Have you ever driven somewhere, parked your car and then realized that you had little memory of what appeared along the way? Or been reading and became so distracted that you had to reread pages you thought you had already read? The ability to direct and sustain focus is essential for lawyers. Yet, a study at Harvard University concluded that 47% of our waking hours are spent thinking about something other than what we are doing at the time. A human mind, even a well-disciplined legal mind, is wired for survival and “wandering” is simply a natural part of that system. However, it can lead us to operating on autopilot, reacting to situations in habitual and knee-jerk ways that compromise our ability to make skillful choices and to be fully present for ourselves, our clients, our colleagues and our work.

Enhancing Problem- Solving and Decision- Making

Neuroscience tells us that mindfulness actually changes brain structure and circuitry in areas responsible for learning, memory, concentration, emotional regulation, communication and resilience. Of particular relevance for lawyers is how its practice strengthens our innate attentional capacities. Mindfulness increases our ability to pay attention, whether to a document, a client, or the issues being discussed in a meeting, and to sustain that attention for the time required. Mindfulness also supports cognitive flexibility and agility, allowing us to respond rapidly to change and new information and to flow easily between multiple perspectives so as to understand situations more fully. Prevention of errors is just one of the consequences of this enhanced ability to direct, shift and sustain attention.

Avoiding Ethical Pitfalls

Mindfulness allows us to notice unhelpful thoughts, emotions and behaviors, and then intervene in order to support ethical action. Thus, we can become more aware of self-interest, bias, conditioning, and the unconscious habits and beliefs that drive less skillful behavior. In “In the Moment: the Effect of Mindfulness on Ethical Decision Making” from The Wharton Risk Center at the University of Pennsylvania, the author writes that because of the accepting and non-judgmental qualities of mindfulness, “Mindful individuals may feel less compelled to ignore, explain away, or rationalize ideas that might be potentially threatening to the self, such as a conflict of interest or a potential bias.”

The most frequently violated ethical rules, those relating to competence, diligence and conflict of interest, are significantly impacted by lack of awareness. Mindfulness helps us to notice subtle signals that our performance might be compromised and allows us to pause and find clarity in the midst of situations that could go awry. Awareness also counters “ethical fading,” a phenomenon in which people allow ethical aspects of a decision to fade in the background and then literally cease to perceive them.

Mitigating the Impact of Stress on Quality

Through human brain scans using fMRI technology, we know that chronic stress has a negative impact on parts of the brain responsible for executive functioning and higher-level thinking. Our legal minds, always on high alert, constantly issue-spotting, trained to look for all possible negative outcomes, and expecting perfection or close to it, may be the foundation for excellence. However, these qualities also make us more susceptible to the development of unhealthy coping strategies, which can lead to impaired judgment and mistakes.

We cannot always change the deadlines and pressures of the matters on our desk. We can, however, learn to relate to them in new and more productive ways. One of the concepts that I focus on with lawyers is the difference between habitual, autopilot-driven, stress reactivity and responding to situations from a place of choice, using 100% of our innate coping capacities. To move from reacting to responding, we need to be aware of and own our reactive patterns and develop the mental muscles required to create new habits.

Following an eight-week mindfulness for lawyers program, a participant wrote, “When someone recently made a comment to me that struck a nerve, instead of responding immediately (in an angry manner), I paused for a moment and decided not to respond because what I would say would not be helpful.”

Another wrote, “It helped me to center down to the task at hand at work, following the occurrence of a frustrating or anger-producing event.” This increase in the capacity to sustain high function regardless of the situation is a hallmark of mindfulness practice.

An Evidence-Based Practice for an Evidence-Based Profession

When we introduced mindfulness at my firm in 1998, there had been only eight studies on its benefits. Now, 3,000 published research studies, as well as advances in neuroscience, provide clear direction for how an inherently distractible mind can be trained to be more effective and efficient. You might think of mindfulness practice as boot-camp training for the mind. Just as with physical exercise, mindfulness practice strengthens and develops the mental muscle of mindfulness.

*****
Brenda Fingold is a mindfulness teacher and the Manager of Corporate Programs at the Center for Mindfulness at the University of Massachusetts Medical School. She spent 17 years at the Boston law firm of Hale and Dorr and is a founder and former chair of the Professional Development Consortium.

“No,” I replied almost 20 years ago, when the managing partner asked me to arrange an eight-week mindfulness training program for our lawyers. I was a litigator and the partner in charge of attorney training at a large Boston law firm, and I did not want my colleagues to think we were crazy. Fortunately, my forward-thinking managing partner won this standoff, and over 75 partners and associates had an opportunity to learn and practice mindfulness together. Fast forward to 2017, and you will find a growing number of law firms turning to mindfulness training as a foundation for professional excellence. My original “No” is now an emphatic “YES” as I witness first-hand the benefits of this practice for the legal profession.

A 2015 Harvard Business Review article, “Mindfulness Actually Changes the Brain,” concludes that “Mindfulness should no longer be considered a “nice-to-have” for executives. It's a “must-have”: a way to keep our brains healthy, to support self-regulation and effective decision-making capabilities, and to protect ourselves from toxic stress.” That mindfulness is essential even for bright and well-trained professionals is an acknowledgement that there are factors beyond job knowledge, skill and good intentions that can trip us up, impair competence and diligence, cause us to unintentionally run afoul of an ethical rule and make it very challenging to sustain high achievement and well-being over a 40- to 50-year legal career.

Mindfulness and Lawyers

The practice of mindfulness can be defined as paying attention in a particular way: on purpose, in the present moment and without judgment. Have you ever driven somewhere, parked your car and then realized that you had little memory of what appeared along the way? Or been reading and became so distracted that you had to reread pages you thought you had already read? The ability to direct and sustain focus is essential for lawyers. Yet, a study at Harvard University concluded that 47% of our waking hours are spent thinking about something other than what we are doing at the time. A human mind, even a well-disciplined legal mind, is wired for survival and “wandering” is simply a natural part of that system. However, it can lead us to operating on autopilot, reacting to situations in habitual and knee-jerk ways that compromise our ability to make skillful choices and to be fully present for ourselves, our clients, our colleagues and our work.

Enhancing Problem- Solving and Decision- Making

Neuroscience tells us that mindfulness actually changes brain structure and circuitry in areas responsible for learning, memory, concentration, emotional regulation, communication and resilience. Of particular relevance for lawyers is how its practice strengthens our innate attentional capacities. Mindfulness increases our ability to pay attention, whether to a document, a client, or the issues being discussed in a meeting, and to sustain that attention for the time required. Mindfulness also supports cognitive flexibility and agility, allowing us to respond rapidly to change and new information and to flow easily between multiple perspectives so as to understand situations more fully. Prevention of errors is just one of the consequences of this enhanced ability to direct, shift and sustain attention.

Avoiding Ethical Pitfalls

Mindfulness allows us to notice unhelpful thoughts, emotions and behaviors, and then intervene in order to support ethical action. Thus, we can become more aware of self-interest, bias, conditioning, and the unconscious habits and beliefs that drive less skillful behavior. In “In the Moment: the Effect of Mindfulness on Ethical Decision Making” from The Wharton Risk Center at the University of Pennsylvania, the author writes that because of the accepting and non-judgmental qualities of mindfulness, “Mindful individuals may feel less compelled to ignore, explain away, or rationalize ideas that might be potentially threatening to the self, such as a conflict of interest or a potential bias.”

The most frequently violated ethical rules, those relating to competence, diligence and conflict of interest, are significantly impacted by lack of awareness. Mindfulness helps us to notice subtle signals that our performance might be compromised and allows us to pause and find clarity in the midst of situations that could go awry. Awareness also counters “ethical fading,” a phenomenon in which people allow ethical aspects of a decision to fade in the background and then literally cease to perceive them.

Mitigating the Impact of Stress on Quality

Through human brain scans using fMRI technology, we know that chronic stress has a negative impact on parts of the brain responsible for executive functioning and higher-level thinking. Our legal minds, always on high alert, constantly issue-spotting, trained to look for all possible negative outcomes, and expecting perfection or close to it, may be the foundation for excellence. However, these qualities also make us more susceptible to the development of unhealthy coping strategies, which can lead to impaired judgment and mistakes.

We cannot always change the deadlines and pressures of the matters on our desk. We can, however, learn to relate to them in new and more productive ways. One of the concepts that I focus on with lawyers is the difference between habitual, autopilot-driven, stress reactivity and responding to situations from a place of choice, using 100% of our innate coping capacities. To move from reacting to responding, we need to be aware of and own our reactive patterns and develop the mental muscles required to create new habits.

Following an eight-week mindfulness for lawyers program, a participant wrote, “When someone recently made a comment to me that struck a nerve, instead of responding immediately (in an angry manner), I paused for a moment and decided not to respond because what I would say would not be helpful.”

Another wrote, “It helped me to center down to the task at hand at work, following the occurrence of a frustrating or anger-producing event.” This increase in the capacity to sustain high function regardless of the situation is a hallmark of mindfulness practice.

An Evidence-Based Practice for an Evidence-Based Profession

When we introduced mindfulness at my firm in 1998, there had been only eight studies on its benefits. Now, 3,000 published research studies, as well as advances in neuroscience, provide clear direction for how an inherently distractible mind can be trained to be more effective and efficient. You might think of mindfulness practice as boot-camp training for the mind. Just as with physical exercise, mindfulness practice strengthens and develops the mental muscle of mindfulness.

*****
Brenda Fingold is a mindfulness teacher and the Manager of Corporate Programs at the Center for Mindfulness at the University of Massachusetts Medical School. She spent 17 years at the Boston law firm of Hale and Dorr and is a founder and former chair of the Professional Development Consortium.