IBA Showcase: attorney wellbeing – what it is and why it matters to the legal profession

This session examines what has led to a crisis in attorney wellbeing and launches the IBA Presidential Taskforce, which aims to help tackle the root causes. During the session, Steven Richman of Clark Hill, Deborah Enix-Ross of Debevoise & Plimpton and Sara Carnegie, Director of the IBA Legal Policy and Research Unit, posed the questions explored by the panel.

Steven Richman: We all recognise the mental health crisis in the legal profession. But what are the discernible factors? Is this a problem of the way we practise law, the current business model or something else?

Tomás Gabriel García Micó, Universitat Pompeu Fabra, Barcelona: It has to do with the current business model. That is characterised, at least in Spain, by two things. First, by the billable hours system. That creates competitiveness between colleagues. Secondly, the system that we have in many big law firms in Spain, where if you cannot progress on a yearly basis, you're fired. This assessment is clearly linked to the billable hour target.

Derrick Yeoh, Jones Day, Singapore: There's still this stigma that's attached to mental health that’s illogical. Because when you talk about mental health problems that result from work, as compared to someone who broke their leg in the course of his work for example, you find that the person who broke their leg will elicit sympathy. At the same time, when someone has a mental breakdown because of their work, they invite scorn. Others will say you're not tough enough, or not good enough. So, there’s still a lot of room for improvement for it in Singapore.

Paulo Coelho da Rocha, Demarest Advogados, São Paulo: The situation is usually made worse by a lack of what I call social support, in which people will look out for each other. And one reason is the way firms are paid and how lawyers demonstrate commitment to their employer, which is the billable hours.

We all have grown in a culture where lawyers have to be extremely responsive to demands from clients and colleagues, and, on top of that, older lawyers preach that the hard, intensive work is like a rite of passage. You have to go through that – if you consider asking for help, that’s a sign of weakness.

Individually attorneys can take some common sense actions, try relaxation exercises throughout the day for example. But, more importantly, the leadership of the firm has to make a conscious effort to really institute real change in the work environment. Firms should push for a more balanced work- life environment and take concrete steps to encourage attorneys to have a life outside the firm.

The change will not come easy because it means a reduction in billable hours and the income for both associates and partners would be reduced. But in the end, I'm a true believer that the change pays off in different ways. It improves recruitment. It will improve retention because lawyers are more likely to stay in the better environment. And there's a study that says stressed people take two to three times longer to do things and they're more prone to miss details.

SR: What do you do when you see a colleague that is either outwardly suffering or you have the sense they may be inwardly suffering? Is it a question of saying something, and if so, what do you say?

Banke Olagbegi-Oloba of Adekunle Ajasin University, Ondo State: If you have a colleague that you've been seeing constantly being very active before and you have observed that the colleague is less active, try to reach out, even if you have nothing to offer. Reaching out alone will really help.

If we want our profession to grow and develop, no one from any other field outside the legal field will come in to do it for us. Whether you are in private practice as a partner or even an intern, it is our individual and collective responsibility to pay close attention not only to our own wellbeing, because we often neglect ourselves, but to assist others.

It is time for us to start introducing policies, as a universal template for bar associations, for law firms, for law faculties, for corporate bodies. We need to also start creating awareness at every level. And it's key for us to start promoting trainings, workshops, seminars, conferences and even counselling on this issue.

Sara Carnegie: With obvious exceptions in some jurisdictions, which have law care programmes or more proactive activity, the root causes – billable hours – appear to be the only way to measure a lawyer’s performance. So, in the absence of an alternative, we're not seeing much change. Do you have any thoughts about realistically what can be done to address these underlying causes?

Emma Jones, University of Sheffield, Sheffield: If you look at the evidence base in America, there's probably about 30 years of evidence of wellbeing issues in the legal profession. However, in other jurisdictions, the evidence base is much less well developed. And without that kind of research and that understanding of the underlying issues and how they're playing out in individual jurisdictions for individual practitioners, it's actually very difficult to put together the kind of evidence-based sustainable interventions that we really need at this point.

The regulators in jurisdictions have a very large role to play in this though, because we are in a highly regulated profession. We’re in a hierarchical profession. One where lots of the causes of poor wellbeing seem to be structural and cultural, and it is the regulatory bodies that are really in a position to start challenging this at a much bigger level.

Again, it's very dependent on different jurisdictions, but in some jurisdictions, regulators have made steps in that direction. And there are taskforces and online resources, but it needs to become much more integrated into everyday business. Regulators need to be looking at all areas of their regulation and compliance, and thinking how does this fit into code of conducts, competencies and skills? How does it fit into training and qualification, to misconduct in disciplinary proceedings, to insurance – all these much, much bigger issues. They need to really start investigating that, and that probably means questioning some quite embedded norms within the legal profession.

SC: How can we measure how leaders gain appropriate mental health awareness and understanding?

Tshepo Shabangu, Spoor & Fisher, Pretoria: It's very difficult to gauge and until the leaders actually put wellness at the top of their agenda and see it not only as a moral or humanitarian issue to look at, but really see the business imperative of it in terms of succession planning, in terms of business development, that discussion will not happen.

Also, one needs to understand the environment in legal firms. There needs to be a culture change. And, to really measure this change, law firms must look at their practices and look at lawyers, not in terms of just financial gain, but to also look at other aspects.

The question I'm seeing more and more from attorneys or companies or clients is: ‘Who is your chief wellness officer?’ So, law firms will have to have a paradigm shift in terms of their cultures, in terms of how they do business and in terms of how that will impact the wellness of their employees. Happy lawyers mean productive lawyers.

Deborah Enix-Ross: Picking up on the idea of leadership at the top, there are simple things that we can do right now in the middle of this pandemic. Number one is we should encourage our attorneys to take time off and we should protect them when they do it. I know many of us have had the experience where you've got your vacation planned, you're all set to go, and something happens and you can't take it, or you have to cut it short. The leadership at the top can encourage our younger lawyers and protect them when they say, ‘I'm going to take the vacation’.

How about you send employees a care package – this could be an Uber Eats gift certificate, or whatever it might be – that's tailored to them that says, ‘I'm thinking about you’.