Psychological Consequences of Adopting a Therapeutic Lawyering Approach: Pitfalls and Protective Strategies
| Publication year | 2000 |
| Citation | Vol. 24 No. 01 |
ABSTRACT
The integration of preventive law and therapeutic jurisprudence holds promise for enriching the careers of many practicing lawyers. However, the process of becoming more therapeutic in orientation also involves risk. This Article discusses four potential pitfalls: (1) the process of becoming psychologically-minded and its inherent hazards, including overidentification; (2) the difficulty of balancing neutrality and involvement; (3) the need to identify and manage transference and countertransference; and (4) the risk of secondary trauma. Protective strategies, drawn from the psychotherapeutic and burnout literature, are outlined. This Article stresses the need for lawyers to recognize potential hazards and draw on the experience of other therapeutic professionals as they adopt a more explicitly therapeutic framework, thereby avoiding the pitfalls in favor of the benefits.
I. Introduction
A recent article in
The increase in such indicators of distress and dissatisfaction, together with a trend toward decreased professionalism and decline in public opinion, has led to the identification of the legal profession as a profession in crisis.(fn3)
A potential source of rejuvenation for practicing lawyers lies in the newly-conceived integration of preventive lawyering and therapeutic jurisprudence (TJ). The originators of therapeutic jurisprudence define it as "an interdisciplinary approach to law that builds on the basic insight that law is a social force that has inevitable (if unintended) consequences for the mental health and psychological functioning of those it affects. "(fn4) Although the term grew out of the mental health law arena, it is now recognized as an overarching perspective with application to many areas of law. Preventive lawyering, in comparison, is an approach to the practice of law that focuses on the prevention of litigation, with the aim of minimizing exposure to liability in the future rather than merely defending litigation when it occurs.(fn5) The integration of these two approaches combines the practical, proactive techniques of preventive lawyering and the theoretical framework of TJ. By combining the two, lawyers may be able to practice with more sensitivity to the psychological issues involved in legal cases and recapture the counseling role vis-a-vis their clients that has been lost in the legal profession.(fn6) The pioneers of the integration suggest that the combined approach may transform the practice of law "into an instrument for helping people," thereby "revitalizing the professional life of the lawyer by making law practice more enriched and fulfilling."(fn7)
The foregoing addresses a central concern I experienced as a lawyer in private practice; the legal profession, as presently structured, often impedes, rather than supports, a desire to help those in need. The integrative approach, which has the potential to substantially "humanize" lawyer-client relationships, holds great promise. However, to adopt this "new" approach,(fn8) lawyers may wish to draw on the research and scholarship of professionals engaged in other therapeutic roles with clients. The process of becoming more therapeutic will be a learning experience for many lawyers and for the profession as a whole. By tapping the experience of those in social work, psychology, and psychiatry, lawyers can ensure the process is as painless as possible.(fn9) In this Article, I will draw on my experience as a litigation lawyer in private practice, my current training in clinical psychology, and the psychotherapeutic literature to highlight pitfalls that may accompany the adoption of a therapeutic lawyering approach.(fn10) I will then identify a number of protective strategies used by other therapeutic professionals to avoid these pitfalls.
II. Highlighting the Hazards
As lawyers undergo the process of adopting more therapeutic roles, they will learn to approach client relationships differently. They will focus not merely on the problem at hand, but also on the potential legal issues that may arise in the future and the emotional and psychological effects of contact with the legal system, present and future. Interviews with clients may be longer, more involved, and likely more personal as lawyers learn to view their clients in context. Receiving and understanding the full narrative of a client's life requires emotional sensitivity and an appreciation of psychological factors not taught in law school. Understanding some basic concepts of therapy, such as overidentification, transference, and countertransference, may allow the therapeutic lawyer to understand the process in which he or she has become immersed. New challenges, such as remaining neutral and emotionally healthy while entwined in difficult client issues, will inevitably arise. However, with advance education and a mindful approach, therapeutic lawyers may avoid the potential hazards that can arise from this potentially rewarding style of practice.
Psychological-mindedness refers to a state of heightened awareness of mental processes and develops as one learns to be aware of unconscious processes, motivations, and problems.(fn11) This heightened state of awareness requires listening skills that extend beyond verbal communication to the ability to attend to the subtle internal aspects of another human being. Psychological-mindedness flourishes in those who are introspective, intuitive, and empathic.(fn12) As sensitivity to the emotional and psychological aspects of the lawyer-client interaction is fundamental to therapeutic lawyering,(fn13) a measure of psychological-mindedness is, in my view, a prerequisite to the use of this approach in legal practice.
During the process of becoming a therapeutic service provider, social workers, psychologists, and psychiatrists learn to become more psychologically-minded. As they pay more attention to the psychological aspects of their clients, they achieve a greater level of empathy and an improved ability to deal with the problems others.(fn14) However, Farber has identified several disadvantages of this process that bear consideration by those lawyers seeking to adopt a more therapeutic approach.(fn15)
First, a necessary extension of becoming more psychologically-minded is an increased tendency to be aware of one's own problems and conflicts. This can lead to overidentification, wherein the service provider experiences an exaggerated sense of similarity between self and client.(fn16) As a result, objectivity may be decreased, and the effectiveness of the therapeutic interaction may be threatened.(fn17) For example, in the absence of true agreement, the professional may assume concordance between his or her own wishes, preferences, or motivations and the client's. The service provider may be unconsciously motivated to direct a client to a particular course of action that is, in reality, inconsistent with the client's interests.
Second, during the process of becoming aware of psychological conflicts and issues, many burgeoning therapists also experience what has been (somewhat facetiously) labeled "Beginning Psychiatry Training Syndrome," wherein new trainees overidentify with clients and view themselves as more troubled than they are.(fn18) As therapeutic service providers become more psychologically-minded, they may also find themselves increasingly over-involved in the lives of family and friends and prone to discovering "problems" where none exist. Conversely, the process of becoming psychologically-minded may enable these individuals to identify previously hidden conflicts in themselves or others. Uncovering another's emotional issues or one's own previously defended internal conflict may create an acute situation of stress for the therapeutic worker.(fn19)
Finally, gaining insight into mental processes can promote ego-centricity.(fn20) In describing the frequency of "mid-life problems" in psychologists, Millon, Millon, and Antoni(fn21) note that:
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