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A blog by members of the Wake County Bar Association/Tenth Judicial District Bar's Professionalism Committee members.


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Hey Opposing Counsel: Let Me Give You a Hand

Posted By Administration, Tuesday, August 14, 2018

by: Katie King

Not long ago, I was watching the semi-final round of a mock trial competition.  Single elimination.  The first team had presented a flawless case – until one of the advocates, in the middle of a smooth cross-examination, stood before the jury for nearly two minutes struggling to set up a faulty easel.  It was like watching a famous figure skater, moments away from completing a 10.0 routine, wipe out on his final double axel. 

A student from the second team quietly stood up, pulled his own easel out from behind his counsel table, and walked it across the courtroom for the other team to use.  It was a stunning act of professionalism for any lawyer, much less a law student. 

When I was in my first year of practice as an assistant district attorney, there were many moments where I wiped out on that double axel.  Sometimes, I didn’t even know how I came to be sitting on the ice or how to get back up.  There was one defense attorney, an older attorney who had the benefit of wisdom and experience, who would talk to me after each motion or trial we had.  His conversation would start with, “Let me tell you why I said this…” or “Here’s why you can’t argue that case under these circumstances…”

He made me a better lawyer with each piece of advice.  He probably also saved himself having to rebut legally inaccurate arguments or motions that didn’t rest on solid footing from a novice attorney.  It is this kind of informal conversation and general amiability that betters our profession as a whole.  For the older lawyers, when you see a young lawyer making a common mistake: pull her aside after court or telephone her to give some helpful advice.  Trust me, it will be more appreciated than you can imagine.  For younger lawyers, the value is in listening. 

Sometimes the common courtesies that we extend to one another as human beings are checked at security along with the rest of our briefcases and file folders. The adversarial system has a tempting way of turning us as attorneys into adversaries.  But we are not adversaries – not personally anyways.  Zealous advocates standing at irreconcilable positions?  Perhaps – but never enemies.  The Golden Rule applies as well in the courtroom as it does in the cathedral, convenience store, or anywhere else:

Treat others as you would like to be treated.  


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If the President Calls – Decline, in a Totally Professional Way, of Course

Posted By Colleen Glatfelter, Friday, June 29, 2018

By Maria M. Lynch, Tenth Judicial District Bar President, 2018

This is not a political post.  If I represented only those clients who agreed with my politics, I would have starved to death long ago.  This is about professionalism in the attorney-client relationship at the outset.  Rule 1.16 of the Rules of Professional Conduct deals with declining or terminating representation.  Before undertaking representation of a client, do your best to determine whether you may later have to review the provisions of 1.16(b), which outlines circumstances in which you are permitted to withdraw.


Good client selection skills foster professional relationships, but all lawyers make mistakes in this area occasionally.  Fortunately, potentially difficult clients can often be identified early in the process by certain common characteristics, many of which are present with respect to the President.  First, he has been through multiple lawyers.  A client who has a history of hiring and discharging lawyers or hiring lawyers who later quit should be given greater scrutiny.  Generally, I might ask if the client would waive attorney-client privilege and allow me to discuss the earlier representation with the lawyers who have been fired or withdrawn.  If a client has been through multiple lawyers, proceed cautiously.


Second, the President has been reported in multiple stories in the press to be, at best, slow to pay his lawyers’ fees.  I do a fair amount of pro bono work, but I only do it for clients who cannot pay, not for those who will not.  Finally, the President certainly has the reputation of not taking the advice of his lawyers.  I tell clients they do not have to take my advice, they just have to pay for it, but at some point this is not a truthful statement because, if a client never takes your advice, the client is looking for a mouthpiece, not a lawyer.  A client who insists upon taking action that the lawyer considers to be contrary to the advice and judgment of the lawyer is going to result in a troubled attorney-client relationship.  In fact Rule 1.16 allows permissive withdrawal for an attorney who represents a client who insists upon taking an action the lawyer considers “repugnant, imprudent, or contrary to the advice or judgment of a lawyer, or with which the lawyer has a fundamental disagreement.”


If you find yourself in a relationship that is straining the limits of your professionalism, review the provisions of Rule 1.16 and determine if you can withdraw.  Make sure you comply with applicable law requiring notice to or permission of a tribunal, and in every case in which withdrawal is permitted, a lawyer must take steps to protect the client’s interest.

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She posted that? He tweeted what?

Posted By Sarah L. Justice, Wake County Bar Association, Monday, April 30, 2018

Maureen McDonald Zyglis,  Parker Poe Adams & Bernstein LLP

As an employment lawyer, I frequently advise clients on issues surrounding social media use by their employees. Many employers have well-crafted, reasonable policies in place, policies which outline expectations of appropriate social media usage by representatives of the company. Yet, inevitably, they are left scratching their heads saying, “She posted that?” or “He tweeted what?” I often find myself saying the same thing when I see the constant barrage of tweets from the White House. Regardless of political affiliation, I think we can all agree that the amount of tweets from the highest office in our land may be cause for a reassessment of the role social media plays in our society.

We are surrounded by a generation that thrives on 6-second sound bites, YouTube videos, and Facebook likes. It is easy to get lost in what is appropriate to share with the public, and to blur the lines of professionalism in the process. As lawyers, we have a duty to be ethical and professional, and I submit that this duty does not end when we leave our offices for the evening. We are a profession and, more importantly, a local bar of respect. Our social media presence should reflect that. For some that may mean simply avoiding certain topics, while for others it may mean maintaining separate accounts – one for professional use and one for personal use.  Whatever your choice, here is my top five list on using social media:

1.      Do not disparage clients, co-workers, bosses, opposing counsel, judges, or jurors, no matter how much you may think they deserve it.

2.      Think about the image you want to portray before posting photos. (ie: Wait until you are clear headed the next day to decide whether to post the picture of you shot-gunning a beer at 3am.)

3.      Foster intelligent discussion when you can.  I’ve watched one of my mentors do this so gracefully during the recent debates on gun control and was impressed by her ability to help those with a seemingly drastic difference of opinion find common ground.

4.      Before posting or tweeting, imagine reading it aloud in front of your boss, your mentor, or the person you hold in the highest regard in your office (for some lucky folks that may be the same person).

5.      Proofread!  Proofread!  Proofread!

Our society is battling a social media epidemic - and yes, I do believe it is an epidemic. People have become quite comfortable sharing intimate details of their lives via social media, and it does not seem to be slowing down. Studies show that 81% of millennials check Twitter at least once per day, and that teens are spending nearly nine hours per day on social media platforms. We may not be able to stop the train bearing down on how those in our society interact, but what we can do is set good examples in our little corner of the world. 

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Accentuate the Positive

Posted By Sarah L. Justice, Wake County Bar Association, Monday, April 16, 2018

Ripley Rand, Womble Bond Dickinson (US) LLP

Chief Justice Mark Martin has named 2018 “The Year of Legal Professionalism” in North Carolina. This proclamation will not be the only focus on the professionalism of lawyers in our state this year, though. Recognition of lawyers with a history of exceptional professionalism happens every year. The Chief Justice’s annual Professionalism Award “spotlight[s] individuals whose career commitments in areas such as legal ethics, disciplinary enforcements, and lawyer professionalism demonstrate the high calling and higher achievement of lawyers in modern society.” The North Carolina Bar Association has two professionalism awards: The H. Brent McKnight Renaissance Lawyer Award recognizes the “enduring influence and high ideals of the full, accomplished life of a ‘Renaissance Lawyer.’” And the Young Lawyers Division presents the Robinson O. Everett Professionalism Award to younger lawyers who demonstrate professionalism through their commitments to local, state, and national bar associations. A number of county and district bars also have awards honoring lawyers who have shown the highest standards of professionalism and legal ethics in their practices.

But when the word “professionalism” pops up in a North Carolina appellate opinion, you can bet it isn’t a happy occasion.

Our appellate courts often address the problematic professional (and sometimes personal) shortcomings of lawyers, whether in specific proceedings or dispersed throughout a period of someone’s career. Sometimes, the Court will chastise a lawyer for straying beyond the lines set by the ethical rules in the context of a heated closing argument or cross-examination in a particular case. Other times, the Court will review the Disciplinary Hearing Commission’s findings about a lawyer’s unprofessional behavior in detail. Almost twenty-five years ago, the Court of Appeals sadly reflected in Storey v. Hailey, 114 N.C. App. 173 (1994), that “legal etiquette and professionalism are becoming more rare.” It’s hard to say from reading North Carolina’s appellate opinions that things have gotten any better.

This may just be a perception problem, though. Other courts across the country have recently pointed out occasions when lawyers have shown the highest levels of professionalism. In State v. Corleto, 161 A.3d 504 (R.I. 2017), the Rhode Island Supreme Court remarked upon the “commendable display of professionalism and candor” that the defense attorney made arguing a procedural motion. In Suter v. Commonwealth, 796 S.E.2d 416 (Va. App. 2017), the Virginia Court of Appeals commended the prosecution’s “level of professionalism in honoring counsel's ethical duty of candor to this Court” in setting forth case law adverse to its position that had not been brought to the Court’s attention. In State v. Woods, 393 P.3d 886 (Wash. App. 2017), the Washington 1st District Court of Appeals included a footnote noting its appreciation of the work of the defense attorney, who had been appointed to represent the defendant late in the process – “We extend our gratitude to Mr. Womack, who handled this unusual assignment with a high degree of skill and professionalism.” And both sides of the case made favorable impressions on the Florida 5th District Court of Appeal in A.J.A. v. State, 215 So. 3d 639 (Fla. App. 2017): “We acknowledge and appreciate the professionalism with which counsel on both sides addressed the sole issue on appeal.”

The only positive reference to a lawyer’s professionalism that appears in a North Carolina appellate opinion did not come from the appellate court itself, but from the trial judge’s commentary as recounted in the opinion. In State v. Barden, 356 N.C. 316 (2002), the Supreme Court noted that “the trial court complimented all counsel for the professionalism demonstrated during trial.” Anyone who spends much time in a courthouse knows that North Carolina’s trial judges often say similar things to lawyers in open court. Appellate judges often congratulate the lawyers who appear before them on their professionalism and on having made outstanding arguments. Clients will also let their lawyers know how much they appreciate professionalism in all kinds of cases, whether those are courthouse matters or not.

The only people who ever know about these commendations, though, are the other people in earshot at the time. As author Neil Postman said, “The written word endures, the spoken word disappears.” North Carolina’s appellate opinions hold a special place in our state’s legal history as the only readily available written summaries of what happens in our state’s court system. Our lawyers (not to mention the public) both deserve and need to know when our judges encounter the highest levels of professionalism. This “Year of Legal Professionalism” is as good a time as any for our appellate courts to recognize that kind of professionalism in their opinions. 

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Resting Our Lawyer-Brains

Posted By Sarah L. Justice, Wake County Bar Association, Monday, April 2, 2018

Carmen Bannon, North Carolina State Bar

No one has ever accused me of being a serious athlete, but I’ve spent enough time around jocks and fitness enthusiasts that I’ve internalized the notion that rest and recovery are necessary for optimum performance.  As I understand it, physical exercise is a cellular process of breaking down muscle tissue and then rebuilding it bigger, better, and stronger.  If we push our muscles hard every single day, they don’t have an opportunity to rebuild and may actually end up losing endurance and strength, and being more prone to injury.

Yes, this is a metaphor.  The “muscle” we use, abuse, and over-work in the practice of law is our brain. When we are facing a deadline or a trial, we expect our brains to perform optimally for many long days in a row, sometimes weeks, with little or no rejuvenating experiences to fuel that marathon.  But our brains need rest and recovery as much as our other parts—perhaps more: the consequences of over-taxing our brains are far worse than losing a bit of muscle mass or a few pounds off our personal best bench-press.

In 2017, the National Task Force on Lawyer Well-Being published its report, entitled “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.” Among the many recommendations in the report is educating lawyers about the need for “downtime to recover from work-related stress.”  It notes that lawyers who do not finds ways to recover from job-related stress are at higher risk of depression and burnout.  Lawyers who are sleep deprived (a common affliction that severely over-taxes the brain) are likely to suffer diminished cognitive functioning and difficulty concentrating, among other unpleasant effects.

We must, for our mental health and for our productivity, give our brains a chance to rest and recover.  It would be wonderful if we could all spend our lunch hours silently meditating or taking a yoga class…but as someone who has hurriedly eaten my fair share of microwave lunches at my desk so I can promptly get back to working and grinding my teeth, I know that is not realistic for many of us.  And although we need to take proper vacations, a couple of weeks per year out of the office isn’t enough to help maintain brain-equilibrium day-to-day.  The good news, though, is that even small breaks during the work day can make an enormous difference in productivity and focus.  Research has shown that taking even a few-minutes break from a long mental task sharpens your ability to focus on the task when you return to it. 

Although the fitness tracker I wear on my wrist is underwhelmed by my overall athleticism, I have set it to kindly remind me once an hour to get up, move around, and get some oxygen circulating to that critically important “muscle”: the long-suffering lawyer brain.


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Harness the Power of Feedback

Posted By Sarah L. Justice, Wake County Bar Association, Monday, March 26, 2018

Whitney Waldenberg, The Brocker Law Firm, P.A.

When we think about communications with our clients, we are often focused on our obligations under Rule 1.4 of the North Carolina Rules of Professional Conduct.  As a result, we often view communication with a client in somewhat clinical terms: reporting information to the client, advising the client about his or her rights, explaining the pros and cons of pursuing a claim or defense, and obtaining the client’s consent to a particular course of action.  But have you ever considered expanding the scope?  For example, would you consider asking your client for feedback on how you are doing?

Extending an invitation for feedback from your client may not seem like a fun exercise and may even feel a little uncomfortable.  After all, most of us strive to be self-assured, and asking for feedback may feel like self-doubt.  However, asking for feedback may not only enhance the relationship you have with your client, it may also avoid misunderstandings, improve your practice, and importantly, provide some welcomed affirmation.

Consider this: just by extending the invitation for feedback, you will have communicated to your client that you care about him or her, that you are interested in what he or she has to say, and that you are listening.  The invitation will likely be well-received, appreciated, and may reinforce your client’s confidence in you.

Further, by giving the client an opportunity to provide some feedback, you may uncover a misunderstanding of which you were previously unaware.  Such a discovery provides a key opportunity to address a relatively small issue early on, before it potentially snowballs into a larger problem.  Many disciplinary complaints stem from breakdowns in communication between the attorney and client and addressing concerns in a proactive manner may just prove to be the stitch in time that saved nine.

If the client is forthcoming, you may learn about areas for improvement. For example, you may learn that while email communication is easiest for you, your client is not computer-savvy and prefers to receive phone calls.  Or you may learn that your client was expecting to hear from you every day, and you now have an opportunity to manage that expectation.  Receiving this type of feedback may flag common issues that you can address across your practice to enhance your relationship with all clients.

Finally, you may actually get some positive feedback, and who doesn’t want that?!


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Do Help The Elderly Person Cross The Street But Be Careful Crossing Back

Posted By Sarah L. Justice, Wake County Bar Association, Thursday, March 1, 2018

by: Ted Smyth, Cranfill Sumner & Hartzog

I imagine most every lawyer at some point finds herself or himself in the position where she or he has been asked about a topic or issue, while at the curbstone, the BBQ picnic table, the restaurant line or most likely on a telephone call.  Inevitably, someone is seeking legal advice or assistance, in a situation where it is readily apparent, perhaps due to the size of the fees, that your representation is impractical.  In my particular arcane area, it is often a phone call seeking representation for something such as: obtaining loss arising from diminished resale value as part of an automobile collision claim; or an inquiry as to whether the homeowner’s insurer can ask the policyholder to give a recorded statement under oath.  My fellow insurance law geeks know what I’m talking about here! Often, you simply observe that it is not really a circumstance where it would be economically prudent to represent the person.  However, sometimes the impulse arises to spend an extra 5 or 8 minutes on the telephone and give a brief tutorial on that process or issue, perhaps as do-it-yourself suggestion for the person on the other end of the phone. 

Patiently spending an extra 5 to 8 minutes is a frequent occurrence when you are speaking to friends or friends of friends.  Sometimes the person on the other end of the line has absolutely no connection to you, and it is simply a cold call business inquiry.  Even then, I sometimes find myself breaking out the 5 to 8 minute tutorial, when it is highly likely I will never see, hear from, or connect with the person on the other end of the phone ever again.  I would like to think that this impulse arises from the basic desire to have the general population believe that lawyers are good people, and like doctors, we would like to assist a person in immediate need.  That is an excellent and noble reason to spend the extra time on a voluntary basis on the telephone with people who need assistance - to build trust in lawyers as a group. 

I believe that subconsciously, I execute a sliding scale approach to participating in such things depending on my perception of that person’s relative poverty-challenged circumstances, willingness to work hard, and sense of appreciation.  Honestly, it also depends on whether I got a good parking space that morning and don’t have a brief due at 5 o’clock.  I believe that somewhere in the cosmic karma of the universe, when a good thing happens, a tiny vibration bounces out into the world and causes others to do the same.  It is the next best thing to sitting at a phone bank at a Bar Association 4All call-in Friday, a pro bono clinic, or another affirmative commitment to be at a specific place at a particular time to render free legal services.  It is kind of a bite-sized helping of helping.  It is organic, it is random, and it will not make or break a day.

Of course, you want to safely get back to the other side of the street after you have assisted the grandmother in the crosswalk.  I have a couple of internal processes I try to follow in these circumstances.  First, if I decide to take the 5 to 8 minute tour of some arcane area, I have already decided I am not going to charge a fee for the information.  If there is going to be a fee involved, it is an entirely different conversation for me and would need to be structured like any other formal retention of a client.  Second, if the person seeking assistance offers to pay me for my time, I always say no.  Along those same lines, I try to say at least three or four times in the course of this brief discussion that I am not the person’s lawyer, I am just talking to that person today about some general things that might be helpful.  I do not prognosticate on chances that X or Y will likely be the outcome of their efforts, or otherwise handicap how things will progress for them going forward.  I always warn them that there are statutes of limitations and repose, even if I don’t believe there are any such pressing matters.  I always say they could call another lawyer or two if they want for different perspectives.  Even after stating that you are not this person’s lawyer, a letter to the person on the other end of the line confirming you are not their lawyer should be utilized to impress that point on the person with whom you are speaking. 

Additionally, I do not suggest that this telephone call be the first installment of a multiple call series of advice, and I do not invite a periodic call back.  When I get off the phone, I do not expect to ever hear from the person again.  The North Carolina Rules of Professional Conduct are instructive on these matters.  For example, Rule 1.2(c) and Comments [6], [7], [8] and [9] are instructive on an interaction with a client that is limited in scope; Rule 1.16 and Comment [1] are instructive in declining or terminating representation; and Rule 1.18 is instructive on duties to perspective clients, and in particular, the notion that information shared - even in that brief encounter - is subject to privilege.  Finally, one needs to be mindful that in these limited interactions, issues relating to conflict of interest with other firm clients or matters may arise.

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Choosing to Light Lamps

Posted By Sarah L. Justice, Wake County Bar Association, Wednesday, February 14, 2018

by: Deanna Brocker, The Brocker Law Firm, P.A.

I recently attended a funeral for a friend’s mother, and was moved by the service and the remarks made about this wonderful woman.  I learned that my friend’s mother lived by these words: “Attitude is everything. You can either choose to curse the darkness around you, or you can choose to light lamps.  Always choose to light lamps.”  I love this metaphor.  I certainly see darkness in my profession from time to time.  Attorneys are angry about grievances filed by clients they believe are ungrateful or unreasonable.  The State Bar issues discipline against attorneys who are not managing their trust accounts as the rules require, and the feeling is that the punishment is too harsh. Lawyers are losing their licenses to practice law for lapses in judgment that cause harm to the profession.

I have also seen lawyers who have taken the grievance process and disciplinary proceedings in stride.  Instead of cursing the client who brought the grievance, the attorney took the opportunity to re-evaluate her law firm’s client service and responsiveness, and make positive changes in her practice.  Instead of cursing the State Bar staff or the grievance process, another attorney found out something he did not know before.  As part of his written response to the State Bar and given the nature of the allegations against his character, we advised the attorney to get character letters from his colleagues and those in the community to support his good character for truthfulness.  The outpouring of support was uplifting, and the attorney learned how well his peers and others thought about and appreciated him.  Without the State Bar grievance process, he may never have known how much he was loved and respected.  In another instance, where an attorney faced losing his law license, he reconsidered whether the practice of law was truly his calling, and ended up finding more joy by following his passion to another profession.

These attorneys are just a few examples of those whose attitude made all the difference.  They chose to light lamps rather than curse the darkness.  I believe they came out better for having done so.

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Professional Relationships – How Important is it to Be “Right?"

Posted By Sarah L. Justice, Wake County Bar Association, Thursday, February 1, 2018

by: Crystal S. Carlisle, The Brocker Law Firm P.A.

Raising a very strong-willed seven-year old daughter definitely has its challenges.  One of the many life lessons that we want her to learn is the lesson of how to properly interact with her peers.  One concept we recently discussed is when it is okay to not be “right.”  For example, our daughter often corrects her friends when they say or do something that she knows isn’t correct.  Sometimes it is helpful, and sometimes it is frankly annoying.  We have tried to explain to her that unless it is something very important, it is okay to let mistakes go.  She was very confused by this statement.  It is hard for her to grasp the concept.  If something isn’t right, shouldn’t it be corrected?  I asked her if she would rather have good relationships with her friends or always be right.  She stated, “I want both.”  We have some work to do.

This conversation made me think about our interactions with each other as professionals.  Have you ever had a conversation with a peer who corrected you constantly?  Are you the one who constantly corrects other professionals?  Their pronunciation of words?  When you know what the person meant, but they used the wrong word?  Have you ever corrected the word “your” to “you’re” in an email where it was not critical?  Is this behavior professional?  It probably depends.

Correcting a small issue that will not affect anyone else is probably not a good idea, particularly in public.  You may embarrass your colleague which will not foster a great professional relationship.  However, if the person’s mistake could impact others in a negative way, it may be necessary.  If that is the case, perhaps you should attempt to point out the mistake in private, if possible.  It is also helpful to avoid using words or phrases that come across as pompous and condescending.  For example, instead of saying, “actually, it is pronounced voir dire,” you could say, “I have always had a hard time with those Latin words.  I heard the judge pronounce it “vwar dir.” 

Manners are a huge part of professionalism and are not something we should focus on only as a child.  If you catch yourself correcting someone for something relatively unimportant, you may want to pose the same question to yourself that I asked my daughter?  Would you rather have a good relationship with your fellow professionals, or be right all the time?  You likely cannot have both. 

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Professional New Year’s Resolutions

Posted By Sarah L. Justice, Wake County Bar Association, Tuesday, January 23, 2018


by: Douglas J. Brocker, The Brocker Law Firm, P.A.

It’s the time of year when people make personal resolutions for the coming year – eat less, exercise more, lose weight, spend more time with family, spend less time watching television, don’t sweat the small stuff, etc.  Personal resolutions are a good way to remind yourself of important goals to set for the upcoming year.  It’s also a good time of year to turn off the electronic devices temporarily, engage in some essential self-reflection, set certain professional goals, and most importantly lay out detailed, specific steps to achieve those essential professional goals in 2018.

Professional goals, just like personal resolutions, are individual and the results of introspection about your most important core values and priorities.  Adopting somebody else’s resolutions would defeat the essential purpose of the exercise. Setting aside some time in January to reflect on your 2018 professional aspirations will be well worth the investment, in my experience. 

The following are just some examples for you to consider to spark some thought in developing your own core professional values and goals for 2018:

• Listen more, talk less: as the saying goes, you have two ears and one mouth, and they should be used in relative proportion. 

• Live balanced: set boundaries for your clients/patients and your employer/supervisor and stick to them.

• Work smart: find your most productive period of day and set aside that time to do work that requires concentration and protect it from interferences, except true emergencies.

• Take vacations and time away from work every week to recharge and disconnect completely.

• Write brief personal notes or letters to others on a regular basis; set a realistic goal and calendar a reminder.  

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