Go to Bed: The Ethics of Exhausted Lawyering
1.5.2021
During my first week of fatherhood, I was not feeling my sharpest and 3:00 a.m diaper changes were getting the best of me. After years of late-night filings to meet expedited deadlines and sleepless nights during long trials, I thought I had been preparing for this moment my whole career. I was sorely mistaken. My wife, board-certified in neurology and sleep medicine, explained to me in no unclear terms that I was not built to operate on a few hours of sleep. No one is. I was experiencing sleep deprivation.
Insufficient sleep affects huge numbers of attorneys. The adversarial process, tremendous levels of responsibility, and mountains of work make attorneys particularly susceptible to sleep related disorders. The International Classification of Sleep Disorders has found that insufficient sleep syndrome occurs when an individual persistently fails to obtain the amount of sleep required to maintain normal levels of alertness and wakefulness.
The Prevalence of Sleep Issues and the Effects of Sleeplessness on Competent Representation
After another long night that was short on sleep, I couldn’t help but feel nervous about the trials I would be prosecuting just around the corner. Sure, forgetting the reason I went to the grocery store because I was exhausted was a bit embarrassing, but what if I missed a deadline, overlooked important legal authority, or dozed off during a court appearance? Sleep loss and sleep-related disorders have been linked to many catastrophes, including the Chernobyl nuclear explosion, the Exxon Valdez oil spill, and the Challenger space shuttle tragedy. A recent study estimated insufficient sleep leads to somewhere between $280 and $411 billion dollars in annual economic loss in the United States. Can an attorney competently ink billion-dollar deals, prepare defenses for clients facing a lifetime in jail, or handle other high stakes matters while operating on just a few hours of sleep?
That question is not easy to answer. In fact, there is a large body of case law addressing the singular question of how to deal with attorneys who sleep through criminal trials. In New York, sleeping during the course of a trial is “reprehensible” but alone does not warrant a finding of ineffective assistance of counsel.[1] In the Fourth Circuit, an attorney sleeping every day of his trial for “30 minutes at least” was a little too egregious for the court’s liking.[2] The Court deemed defendant’s counsel’s representation was so insufficient it violated the defendant’s Sixth Amendment right to effective counsel.[3]
Falling asleep while driving in New York carries a rebuttable presumption of negligence.[4] If falling asleep behind the wheel is negligent, what do we consider falling asleep on the job? Ethically, lawyers are obligated to provide competent representation to their clients and numerous attorneys have faced discipline as a result of insufficient sleep. In New Hampshire an attorney who suffered from sleep apnea was suspended for three years due to his inattention to litigation matters and numerous missed deadlines.[5] In Virginia an attorney was caught sleeping and snoring on the job, and his denials and lack of candor in relation to the incident led to a six-month suspension. In 2018 a Minnesota attorney asked for leniency during his disciplinary proceeding because of his sleep deprivation and high levels of stress.[6] The court found the attorney’s substantial sleep deprivation may be considered as a mitigating factor but upheld his indefinite suspension from the practice of law. In many attorney disciplinary matters, sleep disorders contribute to performance issues that lead to findings of misconduct.
There’s no way to calculate how many wrongful convictions, dismissed cases, or botched contracts are attributable to lack of sleep, but the scientific research is clear. Sufficient sleep plays an important role in our health and well-being, cognitive performance, and workplace productivity. The problem of insufficient sleep is widespread, and it doesn’t only affect new parents, trial attorneys, or attorneys cramming to hit their billable hour requirement. A recent Centers for Disease Control and Prevention study declared that more than a third of American adults are not getting enough sleep regularly and that insufficient sleep is a public health problem. This is particularly true for attorneys in high stress roles. It’s time for us to change the way we think about exhaustion and fatigue in the office.
Thinking Responsibly About Sleep and the Practice of Law
As attorneys, we can no longer blindly applaud our colleague’s 3:00 a.m. emails or indiscriminately celebrate that attorney who burns the candle at both ends. It’s time to adopt policies that promote good sleep hygiene for yourself and that foster healthy habits in your colleagues. Doing so does not have to come at the expense of accountability or high achievement. In fact, the opposite is likely true. The American Academy of Sleep Medicine identifies attention deficits, increased errors, forgetfulness, distractibility, lack of concentration, and poor decision-making as some of the primary effects of sleep deprivation. We should be doing everything we can to minimize these effects. As rates of burnout, depression and anxiety in our profession continue to increase, it is important for us to start adopting better, more healthy habits and attitudes. So here are some tactics any sleep-deprived attorney can try:
1. Know yourself.
Each individual has a unique circadian rhythm. Whether you’re a night owl or early bird, plan your day accordingly so you can knock out important work when you know you’ll be most effective. Take a break when you need it.
2. Put down that caffeine.
Try to avoid any caffeine after 4:00 p.m. as caffeine can stay in your system for hours. Sometimes that cup of coffee you need to power you through your afternoon tasks can later keep you up at night.
3. Get some light.
Whether you’re in the corner office or a dimly lit cubicle, it’s easy to lose track of night and day in the office. Sunlight plays an important role in regulating your melatonin and circadian rhythm. Getting light in the morning can help with alertness. If natural light is not an option, light therapy may help you maintain normal sleeping patterns.
4. Avoid blue light at night.
As a corollary to getting light in the morning, avoid light in the evening. The blue light from our computer screens, cell phones, and electronic devices mimics that of the morning sun and prevents our body from preparing for sleep. Stop screen time a few hours before bedtime. If you can’t pry yourself away from evening screen time, use blue-light-blocking glasses or night-time light blocking modes or apps on your electronics.
5. Avoid depressants.
Perhaps that glass of wine or beer helps you relax at the end of the evening. Be careful; alcohol may help you fall asleep, but it interferes with deep restorative sleep and can leave you drowsy and in a perpetual state of exhaustion.
6. Keep the bed and the office separate.
Your bed should be a place for sleeping, not finalizing motions or responding to emails on your phone. If you spend a significant amount of time in bed doing other activities, especially stressful ones, you may create a negative association with your bed that can lead to further sleep issues.
7. Keep a consistent schedule.
Try to keep a consistent sleep schedule throughout the week. Many attorneys live by the “work hard, play hard” mantra. If you live for the weekends, try to keep your weekend bedtime and risetime within one hour of your normal schedule. Major discrepancies between your weekday and weekend sleep schedule can cause you to feel exhausted, lead to “social jetlag” and contribute to anxiety about Monday mornings.
8. Finally, be proactive and trust the professionals.
If you’re constantly feeling tired during the day or too exhausted to perform daily activities, you should speak to your primary care physician or seek a referral to a sleep specialist. If you’re waking up and you still don’t feel rested, you may be suffering from sleep apnea or other sleep disorders. The consequences of long-term sleeplessness can be devastating on your health, well-being, and, if left unchecked, your career. Medical professionals can help you get back on track.
John Marsella is an assistant district attorney with the Monroe County district attorney’s office and an adjunct professor of ethics. He received his B.A. in political science from the University of Rochester in 2008 and his J.D. from American University, Washington College of Law in 2013.
[1]. See People v. Tippins, 173 A.D.2d 512, 570 N.Y.S.2d 581 (1991).
[2]. See U.S. v. Ragin, 820 F.3d 609 (4th Cir. 2016).
[3]. Id.
[4]. See Spivak v. Heyward, 248 A.D.2d 58, 60 (1998).
[5]. Mesmer’s Case, 173 N.H. 96 237 A.3d 238 (2020)
[6]. In Re: Petition for Disciplinary Action Against Adam William Klotz.
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