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Mental wellbeing and the legal profession

Mental wellbeing and the legal profession

By Andrea De Souza

Health Wellbeing Workplace 


Last year the Australian Financial Review reported that lawyers rated lowest in health and wellbeing of all professionals. In particular, lawyers are at high risk of depression and other mental illness while there remains a stigma against mental ill-health in the profession. The Brain and Mind Research Institute at the University of Sydney found that one in three solicitors and one in five barristers suffered from clinical depression, and that the incidence of depression in the legal profession is four times higher than that of the general population. These are concerning statistics, particularly when lawyers report that they are reluctant to seek help and that people suffering from depression will be discriminated against by peers and their employer. What is at the root of the high incidence of mental illness in the legal profession? Are there particular factors at play that contribute to the problem, and if so, what are they and what can we do to lower their impact? Dr Michelle Sharpe is the founder and until recently the chair of the Health and Wellbeing Committee of the Victorian Bar. She is firmly of the view that “mental illhealth is an occupational hazard”, and she speaks and writes about mental illness in the legal profession.1 In her opinion, particular innate factors that contribute to mental illness in the legal profession are: pessimism low levels of autonomy the traditional hierarchical nature of legal practice and the adversarial system. It seems likely that the nature of our work, as well as the circumstances in which we perform that work may be contributing to the high levels of mental illness. Law school The factors that contribute to mental illhealth in the legal profession start as early as law school. Studies have shown that law students have higher levels of distress than even solicitors and barristers, and almost three times as many law students reported distress severe enough to warrant clinical treatment compared to the general public. Students are already being exposed to factors that may contribute to mental illhealth such as pessimism and an adversarial outlook. Pessimistic law students perform better than optimists,2 and law students report becoming more conservative and less idealistic as they finish their degrees.3 Many of us can attest to the competitive nature of law school, and the fierce competition continues in the battle for clerkship positions and graduate roles. Encouragingly, law schools seem to be increasingly aware of the risks of mental illness in students and promote selfcare and positive mental health through mindfulness programs, free counselling, and even trialling a therapy dog (the Juris Dogtor program at Melbourne Law School). Nonetheless, the sheer nature of legal education arguably contributes to mental ill-health and universities, as well as students, will need to be vigilant to ensure that they are promoting positive mental health practices. At work Mental ill-health is not restricted to law school. The issues of low autonomy and a hierarchical system are particularly prevalent for young lawyers working in large commercial firms, where a graduate may feel that they have little control over their time or their duties. The practice of the billable hour may mean that lawyers feel that their entire worth is reduced to how much money they can produce for their firm, in six-minute units. A working paper produced by the Centre for Employment and Labour Relations Law at the University of Melbourne describes the system as “hostile to employee-choice”. The paper describes it as a system that disadvantages women and is plain “bad for employee solicitors”. 4 Dr Sharpe noted that increased autonomy may mean an improvement in mental health but can mean the added stressor of isolation, a particular concern for rural practitioners and barristers. In Dr Sharpe’s opinion, employers and associations need to take positive and proactive measures to deal with issues of mental health. She draws the analogy of a worker in construction where it is selfevident that you should wear a hard hat to protect yourself from falling masonry. In the same way a lawyer must be active and indeed proactive to protect their own mental health from the innate risks of working in the legal profession. A particular issue raised by Dr Sharpe is the risk of bullying in the legal profession. She considers it fertile ground for bullying due to the hierarchical nature of legal practice, and in her experience the catalyst for a bully is often mental health issues of the bully themselves, who may be suffering from feelings of disempowerment and unhappiness. Some believe that this behaviour is an extension of the adversarial nature of legal work. The Law Society of New South Wales found that around 22 per cent of lawyers have been bullied or intimidated, though some research suggests that female lawyers may be up to 50 per cent more likely to experience bullying. There is greater general awareness and recognition of the effects of bullying and increased powers for the Fair Work Commission to make orders to stop bullying but there remains work to be done in the legal profession. Dr Sharpe believes that the mental ill-health of legal practitioners is an issue that impacts on the administration of justice. Indeed, mental illness, which is likely to adversely affect the lawyer’s capacity to practise, is a notifiable event to the Legal Services Board. This recognition that mental ill-health can have a profound impact on one’s career and the public perception of the legal profession, emphasises how important it is for lawyers to be proactive with their own mental health to make sure that they are on top of their game. The way forward So what is to be done about these innate factors in the legal profession that contribute to mental ill-health? While there has been a shift in attitudes and approaches, it is unlikely that things will change quickly enough to profoundly alter our working environment in the immediate future. There is increasing de-stigmatisation of mental ill-health in the legal profession (with a Federal Court judge discussing his depression, LIJ November 2013) and indeed, this issue is becoming part of the national conversation about the legal profession. In 2015, the ANU hosted the National Wellness for Law Forum which explored issues of mental health. This attention is gradually leading to improved services and better support. It is becoming increasingly convenient for practitioners to access mental health services. The Victorian Bar has a 24-hour counselling service, as does the LIV. Many large firms have employee assistance programs (EAP) which offer confidential counselling services. There have been calls for an industry-wide approach, 5 similar to the approach being taken in the medical industry, however this intention is yet to reach fruition. In 2011, the LIV obtained funding to research mental health in the legal profession (the counselling service was part of this project) and published its findings in 2014.6 A key feature of the proposal is the WATL (Wellbeing and the Law Foundation) Wellbeing in the Law program, which focuses on systemic and work environment issues as well as individual risk factors and is intended to operate across all levels of the legal community. Another is the LIV “wellness at work” program, of which the counselling service is a component. For organisations, the Tristan Jepson Memorial Foundation provides guidelines for legal organisations (and practitioners) to promote a psychologically healthy workplace. An important part of the strategy to tackle mental ill-health in the legal profession will be increasing awareness of the available services. Finally, lawyers can work on being happier, more optimistic people themselves. Studies show that optimism can have great impact on mental and physical wellbeing. Practising mindfulness and gratitude through practices like reflection and meditation can help young lawyers be more resilient to the innate stressors of the legal profession. Ideally, these practices would be encouraged on an institutional level with subsidised classes and recognition of the potential benefits. Despite increased awareness of the issue and the improvement in services, there is further room for improvement. It is up to every individual, as well as associations and employers, to continue the battle to ameliorate the stigma of mental illness and to reduce the impact of the innate factors. Our expectations will set the new standard for the legal profession, and we should all work hard to ensure that mental wellbeing remains part of the mainstream conversation and is not reduced to a minority issue. ANDREA DE SOUZA is a lawyer in the corporate risk and insurance team at Minter Ellison. She specialises in medical law. Michelle Sharpe, The problem of mental ill-health in the profession and a suggested solution, in Francesca Bartlett et al (eds), Alternative Perspectives on Lawyers and Legal Ethics, Routledge, 2011, 269. JM Satterfield et al, Law school performance predicted by explanatory style, (1997), 15, Behavioural Sciences and the Law 95. Don S Anderson et al, Conservativism in recruits to the professions, (1973), 42, Australian and New Zealand Journal of Sociology 42. I Campbell et al, The Elephant in the Room: Working-time patterns of solicitors in private practice in Melbourne, Centre for Employment and Labour Relations Law, The University of Melbourne, May 2008. Note 4 above, and Laura Helm, Time for a Change: Designing a legal profession-wide health and wellbeing program, (presentation) Law Institute of Victoria. Mental Health and the Legal Profession: A Preventative Strategy – Executive Summary, Law Institute of Victoria, September 2014.

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