Maybe it’s time we recognised that yoga is not the answer?

The rules are silent on the responsibility an employer or an individual has to maintain wellbeing as a buffer against breaching the rules.

I would argue that wellbeing education and practices in law firms should be mandated by the rules to comply with their own purpose, which includes assisting “solicitors to act ethically and in accordance with the principles of the professional conduct established” by these rules.

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In ignoring the risks to good mental health, the profession arguably ignores its responsibility to the fundamental duties of practitioners.

Rule 4 (ASCR) specifies that the fundamental duties of solicitors include:

• Acting in the best interests of clients;
• Being courteous in all dealings in legal practice (presumably, that includes colleagues as well as clients); and
• Delivering services competently, diligently and as promptly as possible.

It is easy to imagine that a stressed solicitor is more likely to breach the Rule 5 requirements not to engage in conduct, in the course of practice or otherwise, that is likely to diminish public confidence in the administration of justice or to bring the profession into disrepute. 

The requirement for clear and timely advice in Rule 7 is another example of vulnerability when it comes to a solicitor who is overwhelmed, burnt out, bullied or stressed for any other reason. 

Structural reform

Apart from amending the rules, there is plenty of low-hanging fruit when it comes to other reforms that might reduce stress, and there is currently no profession-wide encouragement to act on any of the stressors.

Time-based billing

Let’s begin with the billable hour, which is acknowledged around the world as one of the key stressors in the life of lawyers. Sadly for wellbeing, the practice model that leverages the time of employees and rewards the business owners is one about which the profession is largely silent.

Using time as the only, or primary, billable input means practitioners are rewarded mainly for time spent; hence, the pressure to bill your way to the top, or even to bill your way to stay in the race. The six-minute clock that ticks in the head of most lawyers is known to cause distress. We know there are alternative billing methods, but firms and individuals have been left to innovate or pay for education on the alternatives, rather than this being seen as an important profession-wide issue that desperately needs redress.

Humans. Where’s our training for this condition?

Conflict

The entire ethos of the legal profession is built around efforts at resolution of conflict. Conflict is what we do, but we are taught nothing in core subjects about the nature of conflict, conflict management, our own conflict style, our tolerances or our triggers. There is no compulsion for us to seek out this education. Might understanding conflict, including our own role in it, be a useful stress-buster? Lawyers are often seen as warriors, but in reality, we are as conflict-averse as the rest of the population.

Difficult clients

What is it that makes a client “difficult”? The answer to this question is not a catalogue of behaviours that we find difficult to manage, but may lie in a place to which lawyers have little access; that is, in the realm of social science. The rules tell us that we need to communicate courteously, effectively and in a timely way with our clients. The rules do not tell us how we are to do that when clients behave badly and we become allergic to their emails and phone calls. Where is the call to collaborate with professionals who know about human behaviour, or to train us to any extent as part of being equipped to deal with people and relationships all day long? Lawyers need to understand or know how to respond to client distress and trauma, which manifests as “difficult”.

And just to poke the bear, I note that nobody even ventures near why we ourselves might be difficult. Now wouldn’t that be interesting?

The price of ignoring wellbeing

Currently, the Australian Solicitors Conduct Rules and the Legal Profession Uniform Conduct (Barristers) Rules do not refer to legal professionals’ health and wellbeing, by contrast with the counselling and medical professions’ rules. Psychologists, social workers and GPs are all mandated to ensure their health and wellbeing as a fundamental of practice.

It might be tempting to distinguish ourselves from the “helping professions”, but we are involved in processes that affect our client’s safety, liberty, relationships, money, and mental health. That is stressful and sometimes traumatic work. How can it be justifiable for lawyers to turn up to the coal face with no mandated emphasis on ensuring their wellbeing and, therefore, their competence?

What to do?

The conduct rules need revision to include a requirement that adequate wellbeing is ensured, not only for compliance but also to bring mental health and wellbeing into the consciousness of the legal culture and to normalise prevention and care.

The truth is that many law firms think the duty of care box is ticked by providing readings and seminars that are to be accessed during personal time, or an employee assistance program (EAP). There is almost no discussion about the low uptake of EAPs, thought to be because lawyers are highly sensitive to privacy and concerned about the negative career impact of being seen as psychologically or emotionally unwell.

Best practice must now include attention to the wellbeing of practitioners as part of a cultural change that lauds wellness rather than quietly providing some ambulances at the bottom of the cliff. The responsibility for making that change happen should not lie with individual practitioners but with employers, supported by a change to the rules which insist on it. Our profession is very slow to change, and history tells us that when external pressures are applied, that is the greatest driver for change. It took COVID-19 to get lawyers and courts onto Teams and Zoom. It took the mandate of continuing professional development to engage the whole profession. It took young innovators and artificial intelligence (AI) to threaten old law models before the profession began to sit up and take notice.

A prescriptive model, mandating that law firms provide debriefing and wellness education, simultaneously with other structural reforms, will be on the right side of history. It’s been long enough.

Marguerite Picard is a family lawyer and mediator. She is the director and founder of Support for Lawyers.