How Lawyers Can Set Ethical Boundaries Post-Pandemic

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Zelle  LLP

Law360
July 27, 2022

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In January 2020, I authored a Law360 guest article titled "Setting Boundaries: An Essential Skill for Lawyers," which highlighted the need for firm boundaries as it relates to attorney-client relationships, and recognizing boundary setting as an essential form of attorney self-care.

Two and a half years and a global pandemic later, boundaries are not only just as important, but arguably more important given the radical shift in how attorneys practice law in a predominantly remote, work-from-home environment with Zoom hearings, depositions and even virtual trials.

Problems related to lawyers' mental health, substance abuse and personal well-being had been hot topics of discussion even before the pandemic.

With reports showing an increase in anxiety and depression by a staggering 25% during the first year of the COVID-19 pandemic,[1] these issues remain front and center not just as they relate to the legal profession, but for every person of every age and every walk of life.

Notably, although the shift to remote work has, according to some employers, resulted in increased productivity, engagement and morale, mental health concerns and burnout skyrocketed during the pandemic.[2]

As we settle into the new normal — whatever that is — evaluating whether the vestiges of pandemic life, including remote work, are part of the solution or part of the problem takes on new urgency.

The inability to leave one's problems at the office or to have time to recharge may be leading lawyers to experience increased levels of stress and burnout.

This article explores one strategy for combating the elimination of boundaries in remote work regimes, which may be exacerbating mental health issues among workers, including lawyers.

Traditional Understanding of Boundaries

The general concept of boundaries "refers to the physical, temporal, emotional, cognitive, and relational limits that separate one entity from another," according to a study by Katja Kerman, Christian Korunka and Sara Tement published by the International Association of Applied Psychology in June 2021.[3]

Boundaries are commonly understood to be the limits or rules regarding what you will accept of another person's words or actions.[4] The fundamental principle regarding boundaries is that we, and we alone, are responsible for our own well-being.[5]

Clear and consistent boundaries promote job satisfaction, career development and safety.[6] It is important to remember that boundaries exist and affect us whether we communicate them or not.[7]

Technology and Boundaries

According to Maya Middlemiss, an author of books about remote working, it is important to take a step back to acknowledge just how much technology has normalized the lack of boundaries in our lives.[8]

For example, messaging applications available to every device have created more freedom and flexibility around where and when we work, but it has also blurred the boundaries for workers in every location.[9]

Even before the pandemic, having our work phones near us in the evenings had become normalized, creating "strong corporate norms that are tricky to untangle for those craving a better balance," according to a June 2021 BBC article by Maddy Savage.[10]

In response, some employers have implemented specific policies such as banning emails outside work hours or encouraging staff to turn off notifications on weekends.

Work-Life Balance: An Outdated Concept?

The traditional concept of work-life balance stemmed from industrial labor jobs: allocating eight hours to work, eight hours to home life and eight hours to sleep.

However, as the professional landscape has changed significantly, this division is not only outdated, but unrealistic, and those who have attempted to capture a magical unicorn of work-life balance often find themselves either in burnout or feel like they are doing a substandard job in both work and life.

One way to eliminate the elusive construct of work-life balance is to view everything as work — in that everything in life stems from inner connections — regardless of whether those connections occur at the office, at home, at church, etc.

However, another way to think about it is to view everything as life. But when everything — jobs, family, relationships, health and finances — falls under the classification of life, how does one establish the necessary boundaries under this everything-is-life concept?

In considering how boundaries fit within this everything-as-life concept, ethics and ethical boundaries become more important than ever in navigating the post-pandemic work culture.

Ethical Boundaries for Lawyers

A lawyer's ethics stem, in part, from the code of ethics of the state or country in which the lawyer is licensed. For example, almost all states have adopted, with some modifications, the American Bar Association's Model Rules of Professional Conduct.

These rules were designed to maintain the integrity of the profession, require lawyers to adhere to the rules and to report another lawyer to professional authorities for conduct "that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects," according to the rules.[11]

In addition to professional ethical obligations, many employers have an established code of ethics for company executives and employees. For example, Amazon.com Inc.'s code of business conduct and ethics sets out basic guiding principles regarding conflicts of interest, insider trading, discrimination and harassment, and health and safety.[12]

In concert with these ethical responsibilities, individuals most often think and act in accordance with their own personal ethics, which include principles a person uses in making decisions that influence various aspects of a person's life.

Personal ethics can include standards related to honesty, loyalty, integrity, respect, selflessness and responsibility.[13]

Thus, an alternative theory regarding creating and enforcing boundaries in the context of professional and personal self-care is the concept that your ethics are your boundaries. Ethics are the bedrock of a person's character and are what most individuals turn to when there are competing moral claims.[14]

Ethical Boundaries as a Path to Lawyer Wellness

Even before the pandemic, lawyers were particularly prone to psychological distress, depression and substance abuse.[15]

Lack of boundaries often results in increased stress levels, leading to attorney burnout, the offering of substandard legal services, and even resulting in professional discipline.[16]

But effective and appropriate boundaries can be difficult to identify and establish given the competing claims on lawyers' time, such as: establishing strong relationships with clients; being available to clients and colleagues; responding to the needs of a family; and sleep, exercise and personal health.

However, if an attorney acts within their personal code of ethics, effective and strong boundaries are already set.

For example, if an attorney's personal code of ethics is to choose the outcome that produces the greatest good and does the least harm, the attorney may decide to dedicate extra hours on a case early in the morning when the kids are sleeping versus in the early evening during family time.

If an attorney's personal ethics are to treat all people fairly and equally, that attorney may decline the opportunity to engage in bulldog tactics, but instead seek to resolve disputes civilly, abstaining from personally attacking the opponent.

Similarly, boundaries based on ethical values of providing clients with legal advice only when the attorney is functioning as a clearheaded individual, may result in the attorney bowing out of late-night drinking events with clients so that the attorney can enjoy a morning workout before participating in an important meeting or mediation.

Making decisions and choosing a course of action in accordance with one's personal code of ethics should be the goal of every lawyer, both in practicing law and in experiencing life.

And by lawyers establishing and adhering to these ethical boundaries in the practice of law, we may not only experience a society with emotionally healthier lawyers, but also a thriving and robust legal system.

[1] https://who.int/news/item/02-03-2022-covid-19-pandemic-triggers-25-increase- in-prevalence-of-anxiety-and-depression- worldwide#:~:text=COVID%2D19%20pandemic%20triggers%2025,of%20anxiety%20and%20depression%20worldwide (last visited July 8, 2022).

[2]https://www.forbes.com/sites/forbesbooksauthors/2022/02/01/mental-health-in-a-postpandemic-world/?sh=4222d2b83b7a.

[3] https://iaap-journals.onlinelibrary.wiley.com/doi/10.1111/apps.12335 (last visited July 18, 2022) (citing Ashforth, B. E., Kreiner, G. E., & Fugate, M.(2000). All in a day's work: Boundaries and micro role transitions. The Academy of Management Review, 25(3), 472-491.
https://doi.org/10.2307/259305.

[4] https://crossroadsindy.com/counseling-blog/couples-and-marriage/boundariesdefinition-and-types-of-boundaries.

[5] https://lonerwolf.com/personal-boundaries/#.

[6] http://www.cbcare.org/wp-content/uploads/2021/02/Bridge-Boundary-Training-CBC_Presentation_Template_01.21.2021.pdf.

[7] The 10 Laws of Boundaries, 2017 Dr. Henry Cloud & Dr. John Townsend.

[8] https://www.bbc.com/worklife/article/20210622-why-its-so-hard-to-put-boundaries-onour-time (last visited July 18, 2022).

[9] Id.

[10] Id.

[11]https://americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_3_reporting_professional_misconduct/ (last visited July 15, 2022).

[12] https://ir.aboutamazon.com/corporate-governance/documents-and-charters/code-ofbusiness-conduct-and-ethics/default.aspx (last visited July 15, 2022).

[13] https://www.glassdoor.com/blog/guide/personal-ethics/ (last visited July 15, 2022).

[14] https://www.scu.edu/ethics-spotlight/covid-19/weighing-values-in-the-midst-of-apandemic/.

[15] "Saving the Lawyers One Breath at a Time: Mindfulness in the Law," Law360, January 12, 2017.

[16] https://wsba.org/for-legal-professionals/member-support/wellness/boundaries.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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