What does it take to bring about change within a conservative profession? This question may appear moot at a time of industry-wide changes brought about by technology, diversity and cross-industry competition as if change were inevitable. Yet, for lawyers bound to the office for such long hours that having a life outside of work becomes a struggle, the bottom line of the firm appears an immovable obstacle to any improvement in their working lives.
Traditionally, an absolute commitment to serving the best interests of the client has been seen as a sine qua non of good legal practice, indeed of a good lawyer. Moreover, law firms by their very premise are beholden to providing a service that, like the law itself, is highly predictable and rule-oriented, and workplace practices tend to reflect this. Thus, when lawyers tackle difficult, voluminous cases under immense pressure from clients, it is almost always not the structures that bend, but the people.
Changing the Culture
In 2006, the “Annual Professions Survey” by Beaton Consulting found that lawyers, compared to other professionals, were particularly prone to depression and alcoholism. Universities and firms alike responded through strategies including mental health awareness programs, wellness and resilience seminars, and access to psychological assistance and exercise facilities. Yet a 2014 survey titled “Lawyering Stress and Work Culture: An Australian Study” showed mixed results, at least among the sample of the profession surveyed. Stress rates remained high, and lawyers even reported being sidelined from promotion when they participated in wellness programs in response to their own mental health problems.
In “Conceptualising legal culture and lawyering stress”, UNSW law professor Janet Chan, who co-authored the 2014 study, found that the problem was being handled as a cultural problem concerning the assumptions, values and attitudes of the legal workplace. However, rather than addressing the root cause, such a cultural approach may serve to normalise certain lifestyles and responses to work stress. Hence the paradoxical situation reported, where lawyers were relatively satisfied with their work, in particular the status, relationship with colleagues and remuneration, while still facing workloads described as highly stressful.
Such paradoxes are common for lawyers, especially young lawyers. They face a situation where years of training and distinguished achievement have led to roles where they have little control over their workloads. An expression of this is the “autonomy paradox”. In Australia, top-tier firms often attract lawyers by offering them control over the type of work they do (and therefore the career paths available to them) and to some extent their in-office hours. Despite this, the intensity and length of the workload are often stressful beyond their control.
Indeed, these incentives, and legal culture more broadly, instead of solving the problem by challenging traditional modes of legal practice, can be mere adaptations to the persistent demand for billable hours. They are, as Chan points out, often geared towards ensuring that the existing values and attitudes of the legal workplace will be reproduced among new lawyers. A strategy that focuses on culture and incentives merely presents an updated, attractive veneer of the legal profession to law graduates, or sets up a “Generation Y” culture to compete against the old. This strategy will achieve little.
A Way Forward
Cultural change is important, but real changes must go further. If the focus on culture points to anything, it is that the lifestyle bargain of the legal workplace is losing legitimacy. We see evidence of this elsewhere. Attrition rates are notoriously high, and have been for a long time. Carers and parents in the profession, as well as those dealing with mental health issues, are looking for alternative lifestyles. This is also true of others who have been attracted to a legal career but do not fit the culture or stereotype of the traditional lawyer. New law firms that leverage alternative structures and new technologies are increasingly attracting lawyers.
In its position paper, The Legal Forecast put forward certain strategies to address the issue of overwork while upholding a high standard of service. These included “a move away from billable hours … the automation of various legal tasks, and integrating long-term thinking into practice management and recruitment”. This discussion also includes more specific strategies such as optimising systems of delegation and work sharing, better communication with clients, and using technology-assisted project management tools. Yet, none of these strategies, however innovative, take effect overnight, and there remains a tendency to return to traditional means of meeting the bottom line. Consistent will and clear vision are required to change the status quo.
Addressing the problem of overwork will require collaboration between all those with a stake in lawyers’ welfare. It will require research and attention to the signs of stress and of improvement. It will require universities, recruiters and firms being frank with students and graduates about career and workload expectations. It will require concrete commitments from leading law firms to limit demands placed on lawyers. Lawyers may have no union, but those committed to the wellbeing and legitimacy of the profession must also be committed to sustaining its human bottom line.
This is an abridged version of an opinion piece that originally appeared in the Australian Law Journal.