Many lawyers appear to be ‘surviving but not thriving’, says Newcastle University’s Professor Richard Collier, ahead of his appearance at Legal Cheek‘s Future of Legal Education and Training Conference 2019
Recent years have witnessed a growing concern internationally in wellbeing and mental health in the legal community. Far from being the legal profession’s ‘hidden secret’ there is now an extensive and rapidly expanding literature on lawyer wellbeing, with the findings of the 2019 Junior Lawyers Division (JLD) Resilience and Wellbeing Survey painting a particularly troubling picture of the levels of negative stress and mental ill-health experienced by junior lawyers. At the same time there is increasing concern around the wellbeing and mental health of university law students and, indeed, law teachers, set against the backdrop of substantial evidence of poor mental health across the UK university sector.
Drawing on projects funded by a Leverhulme Trust and the mental health charity Anxiety UK (AUK) conducted at Newcastle University this short discussion seeks to look at these debates in a rather different way and consider some issues, themes and questions that, on closer examination, ‘connect up’ these conversations taking place in the UK about wellbeing in the law.
The importance of legal contexts: Some similarities … and differences
There is much evidence that significant problems exist around wellbeing for many lawyers who appear to be ‘surviving but not thriving’. The past three years or so, in particular, has seen extensive discussion and an array of policy developments and practical initiatives introduced across the legal profession seeking to better understand, and address, practices and cultures that exacerbate these problems.
Lawyer wellbeing is firmly on the agenda at the forthcoming Future of Legal Education and Training Conference 2019 and this is a debate I will raise important questions about a range of issues; for example, about
• Emotional competence in law practice, how best to ensure individuals are ‘fit For law’, with implications for UK regulators such as the Bar Standards Board and Solicitors Regulation Authority (here noting recent cases before the Solicitors Disciplinary Tribunal);
• The place of emotion in the traditional university law degree, what it means to learn to ‘think like a lawyer’, and how wellbeing might be better embedded within legal education and training (the issue of ‘prehab’ as Angus Lyon has put it in his 2015 book A Lawyer’s Guide to Wellbeing and Managing Stress — what happens before practice); and
• The nature of the transition from legal education and training to a career as a lawyer, with work by the City Mental Health Alliance (CMHA) and Student Minds providing a good illustration of how wellbeing and mental health agendas can be central to ensuring lawyers ‘thrive from the start’.
In both legal practice and education and training we find a shared concern to “promote better mental health and wellbeing in the legal community” and, in the words of the 2018 Mindful Business Charter, address how “we have a responsibility to try and do things differently”.
It is not, however, possible to generalise about the causes and consequences of lawyer distress. There is no one ‘wellbeing problem’ within the legal community. The wellbeing concerns of the corporate lawyer, ‘high street’ and sole practitioner, barrister, law centre and legal aid solicitor, for example, are by no means the same; nor, importantly, are the resources and structures that are increasingly being put in place to support lawyer wellbeing, with marked differences between large and small organisations. Factors seen as contributing to poor lawyer wellbeing differ across areas of practice, law firms and at the bar, and do not easily translate to the experiences of law students or legal academics. The pressures associated with client demands, concerns around vicarious trauma and, in particular, the impact of the organisation and form of billing of much legal work, the focus of especial concern, are more acute in some areas of law than others.
Importantly, and an issue often overlooked, our experiences of ‘legal life’ are mediated by diverse factors such as age, life course and stage of career, with research suggesting particular problems are being faced by junior lawyers and paralegals navigating the often tortuous (and, the AUK study suggests, anxiety inducing) route to qualification; that questions of social class, gender, race and ethnicity, sexuality, disability and health can each shape how wellbeing is understood at particular moments in a career and in specific workplace contexts. Research points to gendered differences in men’s and women’s experiences of — and willingness to speak about — poor mental health in the workplace; and that this is a wellbeing agenda in law driven to a significant, if by no means exclusive, degree by women lawyers in ways interlinked, 100 years on from the entry of women into the legal profession, to broader concerns about equality, diversity and inclusion.
Yet, digging deeper, core themes do tend to recur; the prevalence across the legal community of a pervasive cultural stigma around disclosure of mental health problems; concern about the highly competitive culture of law, poor work-life balance and, for many lawyers, long hours; the ‘personality attributes’ and characteristics of those who enter and teach law, involving ideas about a profession replete with ‘insecure overachievers’, widespread ‘imposter syndrome’ and tendencies towards perfectionism; concerns about a lack of line-manager training in dealing with mental health matters when they do arise; for some lawyers, the impact of corrosive and uncivil workplace cultures, bullying, discrimination and harassment; and, more generally, a broader sense of what Richard Martin describes in his 2018 book This Too Will Pass as the experience of living with “anxiety in a professional world”.
This and other autobiographical accounts, such as that by Lloyd Rees recently published on Legal Cheek, detail with openness diverse experiences of anxiety, exhaustion, unhappiness, overload, insomnia, shame, guilt, hurt, worthlessness yet also something else; at the same time, a recognition of the intrinsic joys, rewards, pleasures and challenges of a career as a lawyer and how high levels of job stress can coincide with high levels of job satisfaction. It is important that these ‘upsides’ of a career in law, the profession’s role as a route to social mobility and numerous instances of collegiality, support and kindness in practice, are not lost in discussing law’s wellbeing problem.
At the same time, however, there remains a view on the part of some that this is just ‘how things are’ and that the ‘bottom line’ of financialisation and client satisfaction will ensure there are limits to how far this wellbeing agenda can be pushed; a degree of acceptance that the ‘package deal’ of being a lawyer will itself involve working practices that can be harmful to health. And therein lies the problem.
What to do? Some questions on the problem of wellbeing in the legal profession
There is a need for caution and to reflect on what we mean by ‘wellbeing’ in the first place. Concerns have been raised by some in the legal community, for example, about how this is at times a discussion all too often focused on encouraging the individual lawyer, law student or law teacher to ‘do something’ about their own wellbeing; how this can then frame the responsibility to tackle these issues at the level of the individual and not, say, the structures, cultures and working practices productive of experiences of poor lawyer wellbeing in the first place.
This raises troubling questions about how the ‘good lawyer’ is often positioned as someone who will, or should, respond to seemingly ever greater work demands, to time-pressures, billing targets, the impact of new technologies and so on, by better attending to their own personal wellbeing — by becoming resilient. The problem is that this can easily mask the long-term consequences of working at a level of ‘peak performance’ that these cultures bring about in people (as these recent accounts of poor wellbeing testify); how far from seeing resilience as something called upon in exceptional circumstances, it can be seen as a ‘baseline’ requirement in ways that reinforce what are, at the end of the day, still viewed as highly desirable traits in the profession (the ability to work long hours, say, to work without apparent caring commitments, or to be ‘careless’, to see oneself, and be seen by others, as a competitive individual).
What we are seeing in both legal practice, notably but not exclusively the larger corporate commercial firms, and university law schools alike, is a debate often focused on the introduction of, say, online cognitive behavioural therapy (CBT) provision, ‘wellbeing weeks’ and days, ‘wellbeing rooms’, yoga and tai chi, self-knowledge, spirituality and mindfulness taster sessions; ‘digital detox’ periods; the provision of five-minute massages and so forth. Each can be important, welcome and positive interventions in and of themselves. The danger, however, is that if wellbeing is seen as a matter best be solved by ‘changing the self’ this can slide troublingly into self-blame and, with it, a furthering of distress. It can also serve to legitimate in the legal profession a focus on cosmetic and superficial answers, on ‘ticking the box’, rather than bringing about more substantive change; ‘how is your law firm doing on wellbeing? See our new league table’.
Finally, it is important to note the deeper significance of this debate. Underscoring these discussions are questions about how the legal community responds to evidence of a far greater awareness of the complex interactions between mental health and the workplace; of the need to work in more effective, efficient and safer ways; and, looking to generational shifts in attitudes, of the greater willingness of millennials to be open about mental health issues, a theme reflected in the recent JLD surveys and the discussions taking place amongst many younger members of the legal community, in legal practice and in law schools.
Central to this wellbeing debate are ultimately questions about the future of the profession itself, recruitment, retention, the nature of a career in law and understanding what it means to be a lawyer. It is a discussion taking place against the backdrop of wider public conversations about mental health and the emergence of an entire wellbeing industry. In the context of an evolving global marketplace for legal services in which the very idea of ‘wellbeing’ has become an increasingly important part of what it now means to be a good employer and provide a first-class service to clients, this suggests wellbeing is an issue that will not ‘go away’ any time soon.
Much has changed. No so very long ago, wellbeing and mental health in the law was a topic all too often silenced from the formal spaces of discussion. The profession has moved on in many positive ways, as the growth of training as a mental health first aider (MHFA), use of role models and ‘wellbeing champions’, the expanded provision of advice and support via ‘wellbeing portals’ and the wellbeing work of the JLD, LawCare, Bar Council, SRA, the Taskforce and many others bodies and initiatives illustrate. The danger remains, however, that for all recent welcome interventions the perception ‘on the ground’ may be of a disconnect between a genuine and well-meaning commitment to improving lawyer wellbeing and the systemic causes of their distress; and that the very welcome initiatives introduced within the law’s wellbeing turn will be seen by many lawyers, at the end of the day, as little more than sticking plasters.
Richard Collier is a professor of law and social theory at Newcastle University. He will be speaking during the afternoon session, ‘Mental health, wellbeing and resilience’ at the Future of Legal Education and Training Conference 2019 on Wednesday 22 May. General release tickets are available to purchase.
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