The Mindfulness Memo

Question Presented

How might mindfulness play a role in ethics, professionalism, and the development of the lawyer’s brain?

Answer

The practice of law offers the promise of a meaningful career, intellectually, emotionally, and personally. There are few attorneys who have not, at one time or another, appreciated this potential, and perhaps been drawn into the field as a result of the powerful feelings a life in the law engenders. At the same time, few sustain this sentiment amid the day-to-day practice of law, especially across time. This can lead to the erosion of hopes and aspirations, disenchantment with career, frustration, and even the embrace of counterproductive and destructive thoughts, feelings, and behaviors. It is all to common today to find attorneys who regret going to law school, who have great difficulty finding a comfortable balance in life, and who experience levels of anxiety and depression that not only exceed the general population but also comparable groups, like physicians, who also have challenging and stressful careers.

For most, it is a roller coaster ride filled with highs and lows – courage and fear – success and failure – fulfillment and disappointment. A great deal of the deviation around a happy medium is prompted by the personalization of events. The adversary who misrepresents, the judge who doesn’t care, the client who has the wrong impression. The adversarial system fosters feelings of being attacked or threatened personally and with it a sense of everyone being either a friend or an enemy. Even the best, the brightest, and those of great character and reputation can become trapped in the crucible of reactivity. As this happens, clarity and stability of mind become compromised as we fall from grace. These slips are often momentary things. Rarely are they public, rarely are we called on them. And when we are, rarely are there consequences. The room for error, both ethically and professionally is sizable – for better or worse.

And while sometimes there are serious repercussions in the public area, there are almost always repercussions in the personal arena. The anxiety of being caught, the self-judgment of one’s true character, the regret or shame of improper conduct, the slow eroding of a moral fiber, all take their toll in much more profound ways. Clarity of mind, performance and well-being are silent, often overlooked casualties. In hindsight, we regret the slip, the gaff, the improper conduct. We wonder to ourselves, and sometimes close confidants – “how in the world did I let that happen?”

The Lowest Common Denominator
As a profession, we hold ourselves up to high standards and establish rules of ethics and professionalism that serve to inform us, especially in areas for which our instincts may not be good guides or for which the profession calls for a more exacting standard. It also serves to provide ground rules which, at least in theory, eliminates unfair advantage through questionable tactics.

These rules result is a standard of professionalism we can call the lowest common denominator. They are adequate and attainable. Everyone is supposed to play by these rules. Whether one chooses to exceed these standards is a personal decision.
Research in the areas of psychology, neurobiology and neuroscience suggest the possibility that the attributes that pave the road for each of us to achieve our personal best and meet and exceed the standards we hold out for ourselves may be, in part, sculpted by the development of certain regions of our brain. You may find interesting the role that you can play (if you deliberately and intentionally choose to do so) in developing these areas, and the benefits that flow from doing so.

The Mindfulness Practice of Law: Eight Traits That Uplift the Profession and Ourselves.
Mindfulness is paying attention on purpose to what arises in your life, moment by moment. The benefits that flow, both from a performance and a well-being perspective are significant and research continues to explore and find ever more persuasive and enchanting reason for cultivating mindfulness, both professionally and personally.
In the area of ethics and professionalism, mindfulness is not necessary for an attorney to satisfy the lowest common denominator of conduct. This hurdle can be satisfied by following rules that nonetheless leave open a doorway for allowable conduct that can compromise one’s personal integrity and sense of self. And that is perhaps just as it should be. Yes, guidelines, standards, and, when necessary, consequences, but always the space, the freedom, to choose how to live, and what kind of professional we wish to be.

While mindfulness is not necessary for ethical and professional conduct, neuroscience findings strongly suggest that it can sustain us in our endeavor to be honorable and to practice with integrity. More to the point, it can change the structure and function of our brain so that we might develop or enhance the skills that clearly contribute to the making of an outstanding attorney, jurist, mediator, negotiator, paralegal, law student -- human being. And what is perhaps most important is that because these changes follow from neuronal reconfigurations in the pathways of the brain, the thinking and the conduct become natural and the temptations wrought out of jealousy, pride, greed, and fear lose their grasp over our will. We find ourselves better equipped to keep our heart and mind on the pathway we choose for ourselves.

Let’s look back to the insights gained during a talk given at MIT in 2003. In the audience were Mindfulness-Based Stress Reduction founder, Jon Kabat-Zinn and Neuroscientist Richard Davidson. They had been collaborating on the changes to the brain that follow from mindfulness practices – things like sitting and observing thoughts and feelings without judgment, bringing greater awareness to sensations arising in the body. Their collaborative research found that mindfulness practices – even over as little as an eight week period – were associated with a shift in brain activity from right to left hemisphere. This shift in activity is associated with movement from depressed, pessimistic and anxious states to more engaged, happy, and energetic way of experiencing life. This is good stuff for lawyers.

Kabat-Zinn and Davison were listening to psychiatrist and neurobiologist, Daniel Siegel speak about the neurobiological factors associated with people whose are characterized as having benefited from a secure attachment relationship with their early childhood caregivers. Siegel identified nine traits that emerged from this relationship and to the parts of the brain associated with these traits.

These regions, all located slightly above and behind the eyes include the orbitofrontal cortex, the anterior cingulate, and the medial prefrontal cortex with its dorsal and ventral sides. Together, they are known as the middle prefrontal regions.

Kabat-Zinn and Davidson were struck by the fact that at least eight of the nine traits Siegel identified had previously been found to arise as a result of mindfulness practice. And, as you’ll see when you read them below, they happen to be among the very traits you would expect in a legal professional who displayed a high level of professionalism and enjoyed a sense of general well-being.

They include:

1. Body Regulation: The capacity to balance the sympathetic and parasympathetic nervous systems, which tell us to “stop/rest” and “go/be active”. (Consider the ways we react to information about hearings, jury verdicts, who’s call on the phone)
2. Attuned Communication: The ability to feel when someone is open to you and can reflect your state. This creates “resonance” and as a result, you feel “felt” by the other person. (Think of client relations, along with those involving judge and jury).
3. Emotional Balance: The ability to allow your internal affective states to be in balance – not overly dramatic or overly muted. (Think of receiving news the outcome of verdicts, hearings, participating in mediations and negotiations).
4. Fear Modulation: The ability to extinguish fear through the activities of your frontal cortex. (Think overreactions to client, defendant, and adversary threats).
5. Response-Flexibility: The ability to pause before you act, so that you consciously respond to stimuli rather than just react automatically. (Think of hallway exchanges with opposing counsel, listening to the “unbelievable” in hearings and reading the same in pleadings).
6. Insight: Self-knowing awareness that can connect past, present, and future. (Think self-perception, knowing where we really stand and feel about issues, and more effectively aligning how we conduct ourselves with our deeply held beliefs).
7. Empathy: Knowing the mind of another. (Think understanding deeply where a client is coming from, a juror is focusing interest, and genuine collaboration and support with colleagues).
8. Intuition: Allowing the wisdom of the body to inform reasoning and decision-making. (Think making decisions that are balanced, taking into account the gamut of available information, both within ourselves and coming at us from all directions).
Siegel, who has since gone on to explore the role of mindfulness on the brain, concludes that the middle prefrontal regions become active when we move into states of mindful awareness and that such purposeful mental activity sets in motion processes that link together disparate regions of our brain, thereby promoting neural integration and with it, a more robust expression of the attributes outlined above.

Putting it all Together
A great many of us are satisfied with our personal ethics and conduct. We appreciate the challenges we face, and feel we rise to the occasion most of the time. And no doubt we do. But it may be worth noting that most people, when asked by psychologists to rate themselves on any of a number of dimensions, rate themselves above average. That is, the average person regards themselves as above average. The lesson – it can be difficult to really know ourselves, especially when we are much more fluid and subject to change, moment by moment, than we may appreciate.
The professional downfalls of Eliot Spitzer, Sam Wachtler and Abe Fortas, all once hailed as legal role models, makes you wonder. Why? What happened? Is it possible they did embody high ideals and standards and that circumstances, personal and/or professional arose that put them to a test they were not expecting? And if so, what tests might be coming your way? (As an aside, Siegel’s research also found “morality” as an attribute. While Kabat-Zinn and Davidson believe morality to also arise out of mindful living, it was not looked at in their research).

Take Home Lessons
We all know the adages that sustain our integrity and well-being: “to thine own self be true,” “follow the golden rule,” and “everything in moderation.” We all know what it feels like to follow them, to be in the midst of others who live them. We know the benefits to accrue to our profession and society when they are modeled. We also know the consequences of living a life, even for a few moments, that neglects these wise insights -- consequences that might lead to a stained reputation. But more importantly, consequences that disrupt something even more precious – that which we have to offer ourselves, those we love, and our community, and ultimate our sense of who we are in the world.

Mindfulness Exercise

Mindfulness Meditation

There are many wonderful approaches to developing and deepening a contemplative practice like mindfulness. To get a taste of this experience, take five minutes and explore/experience what it means to sit in mindful awareness.

• Sit in a comfortable position.
• Keep your back straight but not rigid.
• Rest your hands on your knees, thighs, or in your lap.
• Close or lower your eyes and bring awareness to your breathing.
• Follow your breath for a few moments, observing it with curious interest.
• Move awareness from the breath to your mind, watching the coming and going of thoughts.
• You may notice a busy mind, a restless mind, or a quiet mind.
• Watch your thoughts arise, letting them come and go.
• If your find yourself distracted, or your mind wandering, that’s okay. That is what the mind does. What’s amazing is that you notice it. And that you have a choice what to do next.
• After you notice your mind’s wandering, bring awareness back to your breathing.
• After a few breaths, move awareness to your thoughts and observe your mind.
• At the end of the practice, whether 2 minutes or 20, smile and savor the moment.


Legal Resources

Books

Halpern, C., Making Waves and Riding The Currents: Activism and the Practice of Wisdom (2008)

Rogers, S., The Six-Minute Solution: A Mindfulness Primer for Lawyers (2009)

Siegel, D., The Mindful Brain: Reflection and Attunement in the Cultivation of Well-Being (2007)

Courses

In a growing number of courses offered in law schools around the country, professors introduce students to contemplative practices and insights as part of their legal education. Examples include:

University of Florida Law Professor, Len Riskin (Tools of Awareness for Lawyers).

Boalt Law Professor, Charles Halpern (Effective and Sustainable Law
Practice: the Meditative Perspective).

Marquett University Law School Professor (and Judge) Charles Schudson (Preparing Lawyers for Life)

University of Miami Law Professor, Bill Blatt (Emotional Intelligence).

University of Connecticut Law Professor, Deborah Calloway (Contemplative Lawyering)


~(originally published June 9, 2009)