An interesting side-debate has popped up in the conversation around the mental and physical health of lawyers: whether failing to take care of yourself or your employees is a breach of your ethical duties to your clients.
It’s easy to see how this question has arisen. New research is coming out (what feels like) every other day on the impact of lack of sleep, exercise and proper nutrition on mental performance. Given that lawyers live and die by their mental performance and attention to detail, it’s not a big leap to question how important looking after ourselves is in preserving our ability to perform our work to a competent standard, let alone a high standard.
It is also generally recognised that lawyers experience higher levels of stress, anxiety and depression than the general public, largely as a result of the pressure, long hours and cultural factors found within the legal profession. I, for one, am eagerly awaiting the results of the University of Melbourne’s survey on lawyers’ wellbeing. The available answers to some of the questions were downright terrifying and I sincerely hope that none of my fellow practitioners answer “strongly agree” or even “agree” to some of the questions asked (but unfortunately, I suspect that that is too much to ask).
So, is health and wellbeing and ethical consideration?
The Australian Solicitor’s Conduct Rules include among our fundamental ethical duties the duty to “deliver legal services competently, diligently and as promptly as reasonably possible.”
On face value, the three arms of this duty may contradict each other. In some cases, the pressure to deliver legal services as promptly as possible may result in issues being missed or due consideration not being given to critical issues.
This is also where the wellbeing argument comes into play. Lawyers are consistently working 16+ hour days and are living on firm-paid-for takeaway meals with no time for exercise, time in nature or with friends and family. If a lawyer is staring at a computer screen late at night after not moving all day and having a burger and fries for dinner, are they really going to be able to pick up on the nuance of language or argument required to advise their clients “competently” and “diligently”?
Many of the events I attended in my earlier years of practice noted that best practice for any legal drafting is to prepare the document (contract, letter, submissions, whatever) and then sleep on it and review it with fresh eyes the following day. This time and distance is often a necessary part of providing competent and diligent legal services and picking up on drafting that is inaccurate or flat-out wrong.
With clients and firms putting increasing pressure on lawyers (particularly young lawyers) to get work done as quickly as possible, however, there is a perceived need to stay late or skip proper meals or workouts in order to get the work done.
What can we do about it?
For early career lawyers, it is my view that responsibility lies with their manager and, more broadly, the firm culture. Ultimately, as liability also rests with the firm, it is in the firm’s interest to ensure that lawyers have the mental and physical capabilities to carry out their duties at a high standard.
This doesn’t mean providing subsidised gym access which lawyers never have time to use, providing healthy snacks in the office that lawyers eat instead of leaving the office to get a proper meal, or paying for the odd fun run. It means monitoring the workload and hours of staff and enforcing adequate minimum levels of downtime. It means ensuring that partners and managers are modelling effective work/life integration and are prioritising the health of their staff. It means pushing back on unreasonable client expectations in order to ensure that staff are able to provide competent and diligent legal services.
As a more advanced lawyer, the responsibility for your own wellbeing shifts to you, including working with your staff or partners to manage client expectations and resources to ensure that staff have the time and energy to look after themselves. Responsibility shifts to you to model good wellbeing and prioritising health.
Profession-wide problems like mental health and physical wellness require profession-wide efforts to fix them. We all have a part to play in ensuring that our ethical duties to clients are consistently met and, more importantly, to ensure that our fellow lawyers are equipped to offer high quality service.