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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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Never Laugh at a Lawyer Joke

Posted By Colleen Glatfelter, Tuesday, November 15, 2016

By Fiona K. Steer, Everett Gaskins Hancock LLP

            Member of the 10th Judicial District Professionalism Committee

 

             “Never laugh at a lawyer joke.” Words of a law school dean on the first day of 1L orientation.  He asked, “Who here has heard a lawyer joke?” Half the room mumbled a laugh, everyone in the room raised their hand. With a blank face he silenced the room, repeating, “NEVER laugh at a lawyer joke.”

            This is where he was coming from. When a lawyer laughs at a lawyer joke made in bad taste, that lawyer is belittling the hard work put in during law school that so many college peers were unwilling to take on. He or she is belittling what it meant to spend Thanksgiving and Fourth of July working on a brief or a real estate closing. He or she is depreciating the ethical, moral and professional challenges that we take seriously and mull over every single day we show up to work.

            But at least as importantly, we have to consider: What does a lawyer laughing at an unseemly lawyer joke say to the non-lawyers standing close by? As trained advocates, we all know that human beings are susceptible to influence.

            The Preamble to North Carolina’s Rules of Professional Conduct, states:                           

. . . [A] lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.

Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. . .

    1. Preamble: A Lawyer's Responsibilities.

If we, as North Carolina lawyers, are charged with the responsibility of furthering the public’s understanding and confidence in the legal system, with the vital role of the preservation of society, surely we are charged with the responsibility of refraining from encouraging damaging stereotypes regarding lawyers and their role in the system.

Think of it from the perspective of the non-lawyer: Surely a lawyer knows more about lawyers’ goings-on than non-lawyers know. And if a lawyer finds humor in a joke implying, say, all lawyers are liars, then there must be some truth to it, right? We can’t blame the non-lawyer – that thought process is logical.  I encourage you, the next time you are confronted with a tasteless lawyer joke at a neighborhood cocktail party, embrace the awkward moment. Instead of shrugging off the joke and managing a smirk, just don’t do it – don’t laugh at the lawyer joke! If we take our professional responsibilities seriously, we can hope society will follow.  “Never laugh at a lawyer joke.”

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 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole. 

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Escheat Happens

Posted By Colleen Glatfelter, Wednesday, November 2, 2016

By Suzanne Lever, North Carolina State Bar

 

(This blog post is an excerpt from an article that appeared in Journal 21,2, June 2016)

Escheating refers to the power of the state to acquire abandoned or unclaimed property. Escheating becomes relevant in the legal profession when a lawyer holds funds in a general trust account and does not know the identity or the location of the owner.

During the required quarterly reconciliation of trust account records, lawyers should perform a classification of all funds held. Property is presumed “abandoned” if the owner has not communicated with the lawyer or indicated an interest in the property within its “dormancy holding period.” The holding periods are defined in N.C. Gen. Stat. § 116B-53(c). In most cases, the dormancy period for funds in a lawyer’s trust account is five years.

Pursuant to RPC 89 (1991), a lawyer should consider four factors when determining whether the applicable dormancy period has run. The lawyer needs to establish whether during the dormancy period (1) the fund’s principal has increased; (2) the owner has accepted payment of principal or income; (3) the owner has corresponded in writing; or (4) the owner has otherwise indicated an interest in the account as evidenced by a memorandum or other record on file with the lawyer. If any of the four events enumerated above have occurred, no abandonment will be deemed to have occurred and the client’s funds must remain in the lawyer’s trust. In addition, whenever any of the four events occurs, a new dormancy period begins to run. The property may only be deemed abandoned if none of the four enumerated events has occurred.

Once the lawyer has determined that the dormancy period has run, Rule 1.15(q) provides that the lawyer must make “due inquiry” of his personnel, records, and other sources of information in an effort to determine the identity and location of the owner of the property. The legal investigative requirements are more specific. N.C. Gen. Stat. § 116B-59 states that a holder (the lawyer in this scenario) must make a good faith effort to locate the owner. For properties over $50 in value, a holder must send a written notice by first-class mail to the last known address of the apparent owner as reflected in the holder’s records. Holders who fail to perform due diligence may be subject to penalties and interest as outlined in N.C. Gen. Stat. § 116B-77.

 

There are specific requirements for maintaining and accounting for funds pending escheatment.  These requirements along with other useful information regarding escheatment can be found in the full Journal article from which this blog post is excerpted.

 

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 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole. 

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ALL MINE! UNLESS…

Posted By Colleen Glatfelter, Wednesday, October 12, 2016

 

By Leslee Ruth Sharp, Sharp Law Office, Raleigh NC

Member of the 10th Judicial District Professionalism Committee

What’s with all these new Trust Accounting Rules? Articles, everywhere I turn. How am I possibly going to make time to read all the new rules, learn the required procedures, familiarize myself with the new steps, complete all the paperwork… much less train my staff? I know---I‘ll not deposit any more funds in my trust account! After all, I don’t do real estate closings or handle personal injury matters. Going forward, I’ll just calculate my fee for services at the beginning of the representation, collect all my money upfront, and place those funds in my operating account. Prob-lem sol-ved.

Wait! Not so fast. Before you solve that problem, be sure you understand one small fact: in North Carolina, we attorneys cannot ethically charge or collect a non-refundable fee. See generally 2008 Formal Ethics Opinion 10. Not that you can’t charge or collect a prepaid flat fee or a minimum fee, or even take a general retainer. But despite the moniker, no matter what terminology you and your client use to describe it, or how you calculate your fee, just remember it is never "non-refundable". And no, the character of the fee is not enhanced because you and your client agree that you can deposit it into your operating account immediately (as opposed to putting the funds into your trust account to be withdrawn at a later date).

If you want to follow along, please go to ncbar.gov; click on the News and Publications tab, from the pull-down menu chose Lawyers Handbook and when you are directed to that page, you’ll see the 2016 Lawyers Handbook. From there, you can use the bookmarks to more easily find the applicable Rule of Professional Conduct, RPC or Formal Ethics Opinion ("FEO").

Back to the non-refundable fee, use of the term is clearly prohibited by 2000 FEO 5 and 2008 FEO 10. Fortunately, we are allowed to collect a Prepaid Flat Fee. Ok then, you are thinking, just a small tweak to my engagement letter/fee agreement (you are using a written agreement with each client aren’t you? Whether that engagement letter is required to contain written terms as to the fee is a subject for another day.)

Apologies, I don’t mean to lead you to conclude that use of the term prepaid flat fee ends the discussion. It isn’t just use of the term non-refundable that is prohibited; it is that we must each understand it is unethical to collect a fee that is non-refundable and we must communicate to our clients how our fees are earned. The real test?

Well, let me back up just a bit. Fees for legal services are governed by N.C. Rules of Prof’l Conduct Rule 1.5 (2003). "(a) A lawyer shall not make an agreement for, charge, or collect an illegal or clearly excessive fee…" That’s it "clearly excessive", the crux of the matter, why a fee is never non-refundable. When all is said and done, was the fee charged and collected reasonable? Actually, it is not was it reasonable, but was it clearly excessive. If the fee is clearly excessive, then that portion of the fee that is excessive must be refunded.

A determination as to whether the legal fee is clearly excessive often cannot be made until the representation is concluded. Only at the conclusion of a representation will the circumstances lend themselves to a full consideration of all relevant factors. Some factors to consider are listed in 2008 FEO 10: "(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent". Note this list is not all inclusive.

Doesn’t matter if that prepaid flat fee is placed in the operating account; if it is excessive, the lawyer will be reaching into her pocketbook (operating account) to refund the excessive portion. Likewise the minimum fee, later should the fee be determined clearly excessive, the excessive portion will have to be returned. An advance payment might be a little easier on the lawyer; those funds are deposited into the trust account, and if a refund is required, the lawyer will not have relied upon them as "income". The only exception may be the "true" or general retainer, but even this may be challenged under the clearly excessive standard. Each of these types of fees and their characteristics can be found in 2008 FEO 10.

I urge you to review Rule 1.5 and spend some time with 2008 FEO 10. 2008 FEO 10 looks at Rule 1.5, the RPCs and the FEOs that have annotated it over the years, noting that part of its goal is to eliminate any inconsistencies. I found reviewing each of the provisions listed in the annotations gave me a better understanding of my ethical responsibility and helped me formulate a plan to better explain my fees to my clients. I also found the model fee provisions contained in 2008 FEO 10 helpful.

Bottom line, no matter what you call it, what type of fee you and your client agree upon, or whether you place those funds in your IOLTA account or your business account, no fee is non-refundable.

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 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole. 

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Repellant for the Perils of Anonymity

Posted By Colleen Glatfelter, Friday, September 30, 2016
Updated: Monday, October 3, 2016

By Leanor Bailey Hodge, Professionalism Committee Member

There is a rustling sound…you can feel someone breathing on your neck…did that chair across the room just move?  Surely this is all just your imagination because you are alone in this room – there is no one present but you.  I remember the anticipation of those scenes in television shows and movies when one of the characters becomes invisible and begins using his invisibility to his advantage and the disadvantage of those around him.  Do you remember?  The invisible character slips in unseen and is free to do as he pleases without having to account for it.  We don’t actually experience situations like this in real life because invisibility of this kind is only found on television and in movies.  However, there is something like invisibility that actually exists in reality:  anonymity.  Like invisibility, anonymity can be used to avoid accountability for mischievous deeds.  When a person is anonymous, it can be easier to push the envelope because the likelihood of being held accountable is diminished. 

In the practice of law, anonymity, both actual and perceived, can lead down a slippery slope into unprofessionalism.  Anonymity can make it easier for a lawyer to be disrespectful on occasion without accountability or to occasionally needlessly delay a response to opposing counsel without it becoming generally known.  There can be harmful effects to the local bar and legal system when anonymity results in such deeds.  Several seemingly isolated instances of this type can have the long term effect of changing the culture of a local bar with a high degree of professionalism to something lesser.  When a local bar, such as the Wake County Bar, becomes large, it becomes easier and more likely that there will be members who are unknown by many and thus who are anonymous. 

The Wake County Bar Association has a Creed of Professionalism that was adopted in February 1997.  The WCBA Creed of Professionalism has helped it protect against the perils than can come along with anonymity.  It serves to remind all members of the Wake County Bar of what we each commit to whether we are known and can be held accountable for it or are anonymous.  The Creed of Professionalism provides in part:

To my colleagues in the practice of law, I offer concern for your welfare.  As we work together, I will respect your personal and family commitments.  I will share my learning and experience so that we may all improve our skills and abilities.

To the courts and those who assist them, I offer respect, candor, and courtesy.  I will respect and strive to improve the judicial process.  I will serve as an officer of the court, encouraging respect for the law and avoiding the abuse or misuse of the law, its procedures, its participants and its processes.

To opposing parties and their counsel, I offer honesty, fairness, and courtesy.  I will seek truth and strive to resolve or clients disputes in a dignified matter.  I will pursue the most efficient and least costly solutions to problems and avoid unnecessary delay.

Take a moment once and a while to read the WCBA Creed of Professionalism and remind yourself of that to which we must commit in order to maintain the highest degree of professionalism and to do our part to combat the dangers of anonymity.  The Creed of Professionalism can be accessed via this link:  http://www.wakecountybar.org/?prof_creed.

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 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole. 

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Lessons from Political Trash Talk

Posted By Colleen Glatfelter, Thursday, September 8, 2016
Updated: Monday, September 12, 2016

By Tara Muller, NC Appellate Attorney 

Are you proud to be a lawyer?  Sure, but admit it…at some point, at some party, to some stranger, you hesitated before offering up your job title. Lawyers serve the community as leaders, activists, and civil servants, doing tremendous good for the world, so why the pond-scum reputation?     

Maybe we can learn from the ubiquitous political trash talk we’ve been enduring this election cycle:  Unfit for office...Crooked liar...Paid off by special interests." No wonder some folks unfairly write off all "politicians" as slimy, even though so many elected officials are wonderful and selfless. Could it be that, similarly, the public forms opinions about lawyers by the insults and insinuations we suggest about other lawyers?

My unscientific theory is that lawyer-about-lawyer trash talk is just as damaging as lawmaker-about-lawmaker trash talk. Sure, the lawyer version is classier, usually whispered over cocktails or a tennis match instead of on a 30-second TV ad. "How does she sleep at night…The whole firm is sloppy…Courthouse rat…Over-billing clients… Ambulance chaser…Selling out…Billboard lawyer…"  Of course members of the public will form negative opinions when they hear such things.  Monkey see, monkey do.

This phenomenon of in-fighting is curious, because as a whole, North Carolina lawyers are wonderful. During my 16 years of practice, I have benefitted from and witnessed courtesy, grace, and unexpected advice and assistance from my colleagues on both sides of the “v.” Sure, there’s an occasional bad apple, but that’s the case in any profession, so why dwell on that one guy or lady?  Maybe this week, each of us should take the opportunity to brag to a non-lawyer about the outstanding work of another North Carolina attorney. Let’s start our own grassroots campaign for North Carolina lawyers, from the inside out. What great things have you witnessed lawyers doing for our community?  It’s time to spread the word.

 

Tara Muller is a NC appellate attorney and mediator based in Raleigh. She can be reached at tara@mullerlawfirm.com.

 

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 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole. 

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Lessons from Political Trash Talk

Posted By Colleen Glatfelter, Thursday, September 8, 2016
Updated: Monday, September 12, 2016

By Tara Muller, NC Appellate Attorney 

Are you proud to be a lawyer?  Sure, but admit it…at some point, at some party, to some stranger, you hesitated before offering up your job title. Lawyers serve the community as leaders, activists, and civil servants, doing tremendous good for the world, so why the pond-scum reputation?     

Maybe we can learn from the ubiquitous political trash talk we’ve been enduring this election cycle:  Unfit for office...Crooked liar...Paid off by special interests." No wonder some folks unfairly write off all "politicians" as slimy, even though so many elected officials are wonderful and selfless. Could it be that, similarly, the public forms opinions about lawyers by the insults and insinuations we suggest about other lawyers?

My unscientific theory is that lawyer-about-lawyer trash talk is just as damaging as lawmaker-about-lawmaker trash talk. Sure, the lawyer version is classier, usually whispered over cocktails or a tennis match instead of on a 30-second TV ad. "How does she sleep at night…The whole firm is sloppy…Courthouse rat…Over-billing clients… Ambulance chaser…Selling out…Billboard lawyer…"  Of course members of the public will form negative opinions when they hear such things.  Monkey see, monkey do.

This phenomenon of in-fighting is curious, because as a whole, North Carolina lawyers are wonderful. During my 16 years of practice, I have benefitted from and witnessed courtesy, grace, and unexpected advice and assistance from my colleagues on both sides of the “v.” Sure, there’s an occasional bad apple, but that’s the case in any profession, so why dwell on that one guy or lady?  Maybe this week, each of us should take the opportunity to brag to a non-lawyer about the outstanding work of another North Carolina attorney. Let’s start our own grassroots campaign for North Carolina lawyers, from the inside out. What great things have you witnessed lawyers doing for our community?  It’s time to spread the word.

 

Tara Muller is a NC appellate attorney and mediator based in Raleigh. She can be reached at tara@mullerlawfirm.com.

 

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 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole. 

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Please Do Not Confuse Your Google Search with my Law Degree

Posted By Colleen Glatfelter, Monday, August 29, 2016

By Elizabeth L. Oxley, Attorney, Raleigh, North Carolina

 

   

 The message on the photograph above of a coffee mug, “Please do not confuse your Google search with my law degree” begs the question what do a law degree and license mean in these days of the super information highway?  Normally, a law degree is earned only by surviving a careful admissions screening process for character and ability, three years of demanding classes, clinical internships, and extracurricular activities, and many difficult course examinations.  Law students learn legal research and analysis skills, which require depth of understanding and precision in interpreting the law. Once a law graduate is granted permission to take the bar exam, passes the bar exam and earns a license to practice law, he or she keeps the license only by meeting certain ethical and professional standards on an ongoing basis.

 

Law school instruction,  law examiner board rigorous standards that law graduate applicants must meet before taking the formidable bar exam, codes of professional ethics, and state bar regulation of lawyers’ ethical and professional practices to keep practice standards high are necessary and effective counterpoints to the unregulated “Google” practice of law by non-lawyers.  These enforcers of high standards for prospective and current law licensees—law schools, boards of law examiners, and state bars-- promote high ethical and professional standards in the legal profession and practice of law and are necessary to maintaining an orderly society based on the rule of law.

 

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 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole. 

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Let Hate, Let Hate Be Your Enemy

Posted By Colleen Glatfelter, Wednesday, August 17, 2016

By Brian Beverly, President, Wake County Bar Association and Tenth Judicial District Bar

 

Are you holding a grudge?  Does the mere sight of the person who offended you make your blood boil?  If so, do your best to let it go.  A quote that I often reflect on reads: “Resentment is like drinking a poison and expecting it to kill your enemies.”  The quote is most frequently attributed to Nelson Mandela, but he likely wasn’t the original author.  The phrase has enjoyed some variations over the years and has substituted “unforgiveness” (not a real word) or “holding on to anger” in place of the term ‘resentment’ in different publications.  Despite the difference in verbiage, the lesson is constant.  We only do ourselves harm when we harbor prolonged ill will in our heart for those whom we feel have crossed us.  So the next time that idiot cuts you off in traffic, take a deep breath and carry on.  When you see the opposing counsel who tried to play you for a fool some years back, smile and greet him/her as appropriate to serve notice that the hatchet is buried.  Hopefully none of us has to cultivate the level of forgiveness that Mandela mustered, but we can all afford to release some measure of resentment.  As one of my favorite Reggae bands Third World put it in their smash hit “Now That We’ve Found Love,”

 

You’ve got to forgive and forget

Let hate, let hate, be your enemy.

 

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 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole. 

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Tips for Training New Lawyers on Confidentiality

Posted By Colleen Glatfelter, Monday, August 8, 2016

By Rebecca F. Hölljes

 

            Perhaps one of our most important responsibilities as attorneys is to maintain client confidences.  Despite its importance, the breadth and scope of an attorney’s duty to maintain client confidentiality can be less obvious to newer members of the Bar.  This post focuses on the importance of newer attorneys becoming familiar with client-confidentiality principles (even when those principles might otherwise seem self-evident) and ways to avoid unintentional disclosures.

 

Rule 1.6 of the North Carolina Rules of Professional Conduct addresses the confidentiality of information.  In essence, the rule, which includes many helpful comments and notes, proscribes revelation of information acquired during the professional relationship unless the client gives informed consent or impliedly authorizes the disclosure as part of the representation.  Although newer lawyers will have studied the rules of professional conduct more recently than most, applying those rules to everyday situations can be quite a different experience from answering questions on the MPRE exam.

 

For example, the rule’s duty of confidentiality can be violated by discussing client confidences among persons not obligated to maintain confidentiality, revealing client confidences even without identifying clients by name (but instead with information identifiable to a client), or by consulting with a lawyer who may represent the adverse party.  Even documents filed in court that become a matter of public record may not be disclosable if the information was gained during the course of representation and is not generally known. 

 

Ultimately, many of these potential problems will be avoided with experience, but training, mentoring, and leading by example in the interim are essential.  Advising newer attorneys not to discuss client cases or matters in office lobbies and elevators, to avoid leaving files unattended in public spaces (including courtrooms, conference rooms, and offices to which non-firm members have access), and to err on the side of speaking in hypotheticals rather than specifics can help avoid disclosures and develop habits that maintain confidentiality and privilege.  Because sanctions for violation of the rules and case law associated with confidentiality can have serious consequences to the practitioner, newer bar members should review the Rules of Professional Conduct and consider consulting with more experienced attorneys and lawyer helplines for additional guidance.

 

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 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole. 

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The Stressed Out Lawyer

Posted By Whitney D. von Haam, Wake County Bar Association, Wednesday, July 20, 2016

By Deanna Brocker, The Brocker Law Firm, P.A.

I am a natural born fretter. I tend to envision all the ways things could go wrong, and I tell myself it’s so I’ll be prepared when they (inevitably) do.  My sister-in-law often tells me to quit planning the wreckage of my future.  I know I need to find my zen zone, and try to deal with the stress that I inflict upon myself.  But if you’re like me, you know it is easier said than done.

The need to manage stress or the failure to do so seems to be the hallmark of the legal profession.  Apparently, the legal professional is number one — number one, that is, for the incidents of depression, out of 105 different professions. (1)   A fair number of the lawyers that I counsel suffer from depression, anxiety, and/or substance abuse.  I have wondered whether there is something about the legal profession that causes mental health issues, or is the type of person who is drawn to the law likely to be someone with characteristics that put them at risk?

According to Psychologist Martin Seligman, those traits which epitomize a good lawyer, may also translate into an unhappy person.  “[T]he legal profession is unique in that it is the only profession where pessimists–those who see problems as the norm and not the exception–out-perform optimists….[T]he legal profession calls for caution, skepticism, and anticipation that things will go wrong.”  (2) Combine that with the fact that lawyers as a group are particularly adverse to seeking help for mental health issues, and you have a recipe for disaster.

Given my personality, I have chosen the perfect profession for myself, so I should count that in the win column.  At the same time, if I allow the stress and worry to take too large a role in my life, I am at risk.  I attended a recent Lawyers Mutual presentation that tackled issues of stress and anxiety and how to cope with these factors in your life.  One takeaway from the program is that you need to schedule time to decompress.  Really.  Plan time away from your work, just like you would an appointment.  It doesn’t have to be as significant as a vacation.  Just think about how you can escape for a bit and find your happy place.  It could be getting outside, exercising, reading a good book, meditation, going to a concert, a change of scenery, spending time with family (or away from family), or anything else that makes you smile.

Schedule that time for yourself each and every day.  When you take better care of your mental health, you are in a better frame of mind – to make decisions, to get work done efficiently and to interact effectively.  In short, you’ll be a better lawyer.

Tags:  professionalism stress depression anxiety mental h 

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