The Law Is Changed Through Advocacy But So Are Those Who Advocate
Author Bio: Juris Doctor (J.D.), James E. Rogers College of Law, University of Arizona; Bachelor’s of Science (B.S.) in Business Administration, Eller College of Management, University of Arizona; Master of Laws (LL.M.) in International Economic Law & Policy; Doctor of Juridical Science (S.J.D.) candidate. Joseph Austin is an attorney licensed to practice in state and tribal courts. He is from Chilchinbeto near Black Mesa and an enrolled member of the Navajo Nation. He practices federal Indian law, tribal law, and criminal law. He is also the CEO and one of the founders of Olea, Solórzano & Austin. Special thanks to Tom Higgins, a great mentor and friend.
Many of us lawyers chose to go to law school with the hope that someday we could make changes in the law. Some of us were from various Native Nations and indigenous groups with a chip on our shoulder. We grew up in disadvantaged communities that were oppressed by the rule of law. We believed that if we could learn the law, and learn it well, we could change it or shape it for the betterment of the communities we left. We hoped that what we were told and what we believed was true: the law is changed through advocacy. But, then we became lawyers.
As lawyers, our job is to know the law and advise others on what the law is. We represent clients before courts, and we advocate zealously in vindicating and protecting their rights. For ourselves, we take an oath to uphold the rule of law, defend the constitution, continually educate ourselves, and operate in accordance with a code of ethics. These duties and responsibilities as a lawyer apply regardless if one practices in the civil or criminal field.
In representing clients, I have frequently been asked to explain the legal implications of my clients’ proposed course of conduct. They want to know what will happen if they do this or that, and in the event that they choose to do this, how can they get out of that? In recent years, I have also been asked to teach certain areas of law to judges, lawyers, and legal advocates. I taught federal Indian law at law schools and lectured at conferences on the use of customary law in tribal courts.
As a practitioner, I can attest that the law can be changed through advocacy, but the opportunities to advocate for changes are few and far in between, especially in the state and federal courts. And unfortunately for indigenous peoples, the changes we want to make most are in those court systems. The lawyers fortunate enough to get the opportunity to advocate for change will always have someone on the other side arguing against them and another person deciding if changes are really necessary.
As a teacher, I have no qualms about telling students that indeed the law is changed through advocacy, but advocacy, I caution them, is not so simple. This is true particularly in the field of federal Indian law. Trying to make changes or uproot the rules in federal Indian law, to use the words of my former boss, “is like trying to hit a moving target in the dark, blindfolded, while hanging upside down.” It is definitely possible, but everything must line up just right. It must be calculated and the timing must be perfect.
I know my view on the practice of law sounds pessimistic, but it comes from my experience working as a tribal lawyer for Native Nations. Lawyers, generally, face many obstacles and issues just being part of the legal field. Tribal lawyers, on the other hand, experience the same things but also have to deal with issues that are unique to working in Indian Country.
I tell students that being a tribal lawyer is like being part of a football team. You undergo intense training like every other team, and when the season starts, you find out the league changed the rules to say that your team cannot run the ball. You can only throw the ball and passes must exceed 30 yards. The rules are biased against you, and you end up constantly throwing hail marys. You will land a few every now and again, but your record is more losses to wins. For those not a fan of sports, basically as a tribal lawyer you are going to lose and lose a lot, unless the rules change.
As you can see, us lawyers are naturally bitter and jaded, but can you blame us? Our whole career and education is based off of us doing risk assessments and telling people what not to do. We are trained to be cautious and think of every outcome, good or bad. The possibility of getting sued for malpractice when what was supposed to be a good outcome turns out to be bad, causes us to give more weight to the possibility of bad outcomes.
We are taught to protect our clients but also ourselves. The possibility of making a mistake that jeopardizes our license to practice law, the one thing which we cannot do without, scares us like nothing else. So, of course we will err on the side of caution and tell our clients not to do something if there is a possibility that things will go sideways. And we hope with all our heart that our client does not do what we told them not to do because then we might get roped into the mix. Therefore, we lace every piece of advice with disclaimers and notices of whether our words should be construed as legal advice or just normal speech from one person to another.
The mind of a lawyer is always cautious, and in many ways, it is pessimistic. It has to be that way; it must be that way. This mindset combined with the stress of our job sums up the legal profession. Regardless of whether a lawyer enjoys the practice of law or not, the legal profession will take a toll on them in different ways, and it starts with day one of law school. Studies have shown that during law school, students will undergo a shift in their physical, mental, and emotional health. Many leave law school more unhealthy and pessimistic than when they first started. That trend unfortunately continues after law school and into their legal careers.
It is no secret that many law students and lawyers will develop issues with alcohol and substances abuse. Weekday happy hour events and conferences held at venues where alcohol is easily accessible seem to be the staple of the legal profession and law school. The legal profession, of all the other professions, ranks as one of the highest for alcohol and substance abuse. Those of us lawyers remember the dark times in law school, and even worse, the time we spent preparing for the bar exam.
No one except our fellow peers and colleagues understood what we went through. And there was nothing worse than trying to confide in your family or friends only for them to say the phrase we hating hearing the most, “You’re a smart guy or girl. You’ll do just fine.” Those words are the equivalent of sending someone a long text where you unload all your feelings and then get a response back with only one letter, “k.” Because the truth is, most of us will not do just fine.
In recent years, the bar exam pass rates have never been lower. On average, in states like California and Arizona, most people taking the bar exam will fail. It is not uncommon to see states with pass rates from 50-60%. Failure means dealing with a massive blow to your ego, if there is any left after law school, and having to look your family and friends in the eye after hearing them tell you over and over that “you’re a smart guy or girl.” Failing means you have to watch those who passed the bar go on to become lawyers while you sit back and ponder your future. Failing means you will have to spend hundreds of dollars and more months preparing for the same grueling exam. All the while, the prospect and fear of failing again looms in the back of your mind.
Months go by and the student debt builds up. The emotional and mental toll is so heavy that the only sure escape is through a liquid that can bring your spirits up even if it is just for a short amount of time. We learned in law school that family and friends typically did not understand our struggles and pain. They thought the world of us and we did not want to disappoint them by saying we needed help coping with stress, anxiety, and depression. We learned that our best outlet was at the bar with our law school comrades who understood what we were feeling. For a select few, the bar and liquid was not enough. They needed something else, usually in the form of a powder, pill, or herb. Those select few lived a secret life because exposure meant jeopardizing a future career in law.
Yes, there were some people who did just fine. Some did not need substances or let substances control their life. Many, though, had a hard time coping and suffered in the dark. They did not want to admit that law school was tough because then that would be like admitting that they did not have what it takes. Pride, confidence, and dignity are everything to law students whether they admit it or not. They were the all-stars in their undergraduate programs. They had the highest grades, GPAs, and test scores. They were top of the class, and yet there they were, falling apart in a bar wondering how it could be possible that they got a B- or a C on an exam that they spent days preparing for.
This was the unspoken truth that surrounded us as we sat together in the bar and sipped on our favorite drinks, waiting for the buzz to kick in and our stress to subside. We suffered together. We stressed together. We drank together. Sometimes we drank a lot and indulged in other substances. However, we had no fear of judgment because our peers knew what we were going through. Looking back on it, it was, and still is, like PTSD. Nonetheless we stuck to the old mantra, “what happened in law school stayed in law school,” as if it were part of the oath we took when we were sworn in.
The reality is that most people who come out of law school will work in the public sector as prosecutors or public defenders. A select group will become junior associates in firms where they will answer to the senior associates and partners. Wherever they end up, the hours are long. The work is intense. The stress is always high, and the pay is not what most people think it is. After many years of practice, the new lawyers will eventually become surefooted in their practice and move into higher positions. Even then, they are still in the same legal profession with the same issues.
After being put through three years of intense legal education, enduring months of mental and emotional stress in studying for an exam that will determine if we can begin a career that we spent thousands of dollars for, and practicing for years in fields that most of us never thought we would be in, we begin to question what we once believed: the law is changed through advocacy.
If that was true, then why is it that after all these years our communities are still being oppressed by the rule of law? Why is it that unarmed black people are being shot by police? Why is it that immigrant children are being separated from their parents? Why is it that rallies organized by neo-Nazis are allowed to happen? Why is it that Native women are still being sexually assaulted and the perpetrators not being brought to justice? Why are pipelines being built that jeopardize Native lands and can cause adverse effects to Native people? What happened to the protection of sacred sites?
The purpose of this article is not to discourage anyone from pursuing a career in law. To the contrary, I always encourage young Native students to consider law school as an option. We need lawyers representing tribes and protecting their interests. More importantly, we need tribal members who understand the culture, language, and history of Native Nations to become lawyers and advocate on the behalf of other tribal members. After working as a tribal attorney and appearing in tribal court, I know for certain that Native people are more comfortable when the attorneys, judges, and clerks are of Native descent.
The purpose of this article is to share my experience of being in the legal profession. Like many other attorneys, I was pulled into the discussion about substance abuse in the legal profession after reading the New York Times article titled, “The Lawyer, the Addict.” As lawyers, we all knew the problems that plagued our profession and some of us were part of the problem. We could all relate, on some level, to the lawyer who was the focus of the article and who died an addict. As lawyers, we have camaraderie and when one of us bites the dust, we have a moment of silence. Then, we do the only thing we know how—we take a shot—because that is what we learned and nobody ever told us otherwise.
When I became a lawyer and started practicing, I cannot count how many times I was told, “This is something they didn’t teach you in law school, huh?” Exactly. They did not teach me that alcohol and substance abuse was a big problem in the legal profession, nor did they teach me how to cope with it when I started going down that road. The law is changed through advocacy indeed but so are those who advocate.
If you’re a Native person seeking to make change through the legal field, make sure you also change for the better. My elders told me that I could not help people if I did not help myself first. You cannot seek to mitigate the drinking or drug problems in Indian Country when you are afflicted by those problems. You cannot uphold the rule of law when you are skirting it. You cannot stand before the younger generation and encourage them to be better when you are using alcohol or drugs as coping mechanisms. An Indian sitting at a bar will always be a drunk Indian regardless of how much he/she had to drink or what he/she was drinking. That is always how non-Indians will view us.
During my career, I had many non-Indians say this to me, despite me wearing a suit, having a law degree, being sober for years, and being in a professional environment: “Aren’t most of your people alcoholics?” “You all like to drink don’t you?” “I knew a Native and he/she could out drink anyone.” They said those words with absolute sincerity like they were reciting facts, and the unfortunate part is that I did not have much of a defense because I came from a community where alcohol and drug use were prominent. What was I supposed to say when I was surrounded by friends and colleagues who were holding drinks and getting tipsy? Uh.... no?
Alcohol and drugs have ravaged and continue to ravage our tribal communities and families. We know this, so why do we continue to indulge in that tradition? With each generation we abandon more and more of our people’s traditions, but we choose to keep the drinking tradition, a foreign tradition, alive. Drinking and drug use has never been an indigenous tradition, and if you are someone seeking to make change through advocacy, this is one tradition that needs to be changed. Take a stand against it because as the old saying goes, “A person who stands for nothing will fall for anything.”
 “Entering law school, law students have a psychological profile similar to that of the general public. After law school, 20-40% have a psychological dysfunction. Depression among law students is 8-9% prior to matriculation, 27% after one semester, 34% after 2 semesters, and 40% after 3 years.” The Dave Nee Foundation. “Lawyers and Depression.” Available at http://www.daveneefoundation.org/scholarship/lawyers-and-depression/#.
 “Some research shows that before they start law school, law students are actually healthier than the general population, both physically and mentally. . . . [however] they come out of law school significantly impaired, with depression, anxiety and hostility.” Eilene Zimmerman. “The Lawyer, the Addict.” The New York Times, July 15, 2017, available at https://www.nytimes.com/2017/07/15/business/lawyers-addiction-mental-health.html.
 “In fact, attorneys are more than twice as likely to struggle with alcoholism as the general population.” Patrick R. Krill. “If There is One Bar a Lawyer Cannot Seem to Pass: Alcoholism in the Legal Profession.” The Brief, Vol. 44, 2014.
 “In large-scale national survey studies of professionals, individuals in legal professions have reported higher rates of problematic drinking behaviors when compared to other populations.” Research Update. “Substance Use Disorders Among Legal Professionals.” Hazelden Betty Ford Foundation, March 2017.
 Bar exam pass rates for California and Arizona in 2017, respectively: 44% and 50%. Statistics available at http://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F218.
 e.g. Alabama (52%); Alaska (53%); Florida (55%); Mississippi (52%); Nevada (59%). State bar exam statistics available at http://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F218.
 “While some level of stigma surrounds substance use disorders for nearly all populations, legal professionals face some unique factors that may discourage them from seeking help for problematic drinking and substance misuse. In a national multisite study of law students, the most frequently endorsed barriers to seeking treatment for substance use disorders were ‘potential threat to bar admission’ and ‘potential threat to job or academic status. Approximately half of law students in the study (49%) reported a belief that if they had a drug or alcohol problem, their chances of getting admitted to the bar would be better if the problem were hidden.” Research Update. “Substance Use Disorders Among Legal Professionals.” Hazelden Betty Ford Foundation, March 2017.
 Eilene Zimmerman. “The Lawyer, the Addict.” The New York Times, July 15, 2017, available at https://www.nytimes.com/2017/07/15/business/lawyers-addiction-mental-health.html.