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Beyond Burnout - the Unsafe Legal Workplace
Burn out creeps up on us lawyers
The symptoms of Burn Out are the same for all of us. Your wings lose their uplift, your feelers lose their ability to sense danger. Your eyes dull as exhaustion overwhelms your good sense. Your carry on until you can no longer fly - flat footed in a pool of melting dreams. Alone. Lonely.
You cannot carry on and keep ferrying honey back to your busy legal workplace or home base. Often abandoned by your worker bee colleagues to fend for yourself. That's how it felt for me. Before I learnt the survival skills to carry on.
In legal organisations lawyers are expected to present themselves as a polished finished "professional product" to their work colleagues, clients and the wider legal profession. It's like suiting up with gleaming armour astride your trusty steed.
This performance pressure can contribute to a heightened risk of burn-out, especially for young professionals who are striving to assure clients and colleagues that, despite their youth, they know what they are talking about.
Unfortunately in addition to the burnout issue faced by many lawyers concerning their own workloads, lawyers, and in particular women, and others facing intersectional issues, encounter additional hurdles to navigate if they are to survive their careers. With their very own legal work colleagues, in their own workplaces. Workplaces that can be unsafe. And do not provide safe workplaces for all people working in legal organisations.
Self-regulation has not worked in the legal profession.
Managing Cultural Change
Despite concerted efforts by various professional representative bodies including the Law Council of Australia, State representative bodies, academics and continuing legal educators, of whom I am one, to call for action there has been a failure by a number of legal organisations to provide adequate care for the wellbeing of their own people and to prevent gendered violence.
This can be partly explained by the absence of a suitable change management strategy and resources to prevent gendered violence.
There are no more excuses as all this changed with the delivery of the Starts With Us Toolkit produced by the Women's Legal Service.
Changing the hearts and minds of lawyers involves an important commitment by organisational and professional work leaders to assess the readiness of their organisation and therefore the organisation's culture to embrace any necessary changes required to prevent gendered violence. For most law firms the focus of previous change management initiatives has been on achieving operational efficiencies and profitability. As shown in the chart below with a 70% focus on efficiency.
The legal profession is now entering a new era in which there are changes to both community expectations and regulatory requirements. Legal and justice organisations must foster organisational cultures that reflects gender equitable behaviour, attitudes, and expectations.
A New Era Preventing Gendered Violence in the Legal Industry
A threshold question is whether the lawyers who hold positional power in our fragmented profession actually know how to care. Or rather whether the prevailing belief amongst those with positional authority, is that if you fall off your career, your horse, that's just too bad for you. And that simply means you were not up to the cut and thrust of a legal career.
It is not as if we do not have the data and the evidence to support the call to change. A number of surveys and research reports have highlighted the prevalence of mental health illness and wellbeing issues among Australian lawyers.
A 2006 annual survey of Australian professionals found that members of the legal profession were more likely than other similar professionals to report moderate to severe symptoms of depression and to use alcohol and other drugs to manage feelings of sadness and depression. In 2009 a survey of over 2000 Australian law students, solicitors and barristers suggested that nearly 60% of the respondents reported moderate to very high levels of psychological distress.
Chan, Poynton and Bruce (2014) again raised the issue about "the extent to which the nature of legal practice and the work culture of the industry have contributed to the level of stress and depression" p 1062. The authors launched and conducted a national survey of lawyers and reported their findings. This was the first systematic empirical research on the culture and practice of Australian lawyers. It addressed an important research problem of how professional/workplace culture affects the perception and handling of stress among practitioners. The project involved a national survey and interviews with early career and experienced lawyers working in a variety of communities and settings.
Results informed legal educators, reformers, policy makers and managers in implementing appropriate policies and support mechanisms for the handling of stress among practitioners.
Gender Violence
In 2021, during the time of Victoria's strategic developments, it Starts with Us project, Pender eloquently describes the wicked problem being faced internationally by women in the legal profession regarding gender violence:
"[f]rom New York to New Zealand, from Santiago to Singapore, from Lisbon to London, the legal profession has faced a reckoning. In 2019, a report by the International Bar Association (IBA), the peak global body for the legal profession, found that one in three female lawyers globally had been sexually harassed. As the report noted in its opening sentence, ‘[t]he legal profession has a problem’."
A Seismic Shift
The prevalence of gendered violence in the legal profession has now become a public and political issue. One that has obtained funding by the State Government of Victoria which funded the Starts with Us project under the Free from Violence Fund which produced 2 reports led by the Women's Legal Service.
Building on this funded initiative Work Cover, the insurance and compliance arm for workplace safety in Victoria, has engaged the Women's Legal Service to deliver the Gendered Violence Project. This is a capability building project to enhance awareness and provide a capability uplift in how legal organisations meet their statutory obligations to provide a safe workplace and in particular one that is free of gendered violence.
Starts with Us Framework
The Starts with Us framework report explains that Gendered violence is a serious issue in Victoria’s legal and justice workplaces, p 4. And includes:
verbal abuse
ostracism or exclusion
sexually explicit gestures
offensive language and imagery; put downs
innuendo and insinuations
being undermined in your role
sexual harassment; stalking, intimidation or threats; and sexual assault
bullying and discrimination based on gender.
It stated that "the picture of gender inequality and sexism in Victoria’s legal and justice sector is bleak. The sector is highly hierarchical, steeped in outdated values, and resistant to change".
And goes on to detail specific facts supported by data :
There is gender disparity in leadership despite more women than men entering law.
There is entrenched preferential treatment of men in hiring and promotion, discrimination against women perceived to be of ‘childbearing age’, and a gender pay gap of 16 per cent.
The prevalence of sexual harassment in the sector is high, with 61 per cent of women in the legal profession reporting having experienced sexual harassment in a Victorian Legal Services Board + Commissioner (VLSB+C) survey.
Of those who reported an incident of sexual harassment, 28 per cent were labelled as a troublemaker, 24 per cent felt victimised or ostracised and 26 per cent resigned from their jobs.
Starts With Us research on gender and intersectional inequality conducted in 2022 confirmed that gender inequality and other forms of discrimination work together in the legal and justice sector to compound experiences of sexism, racism, ageism, homophobia, and ableism.
WorkSafe Workwell Respect Fund
Funded by the Victorian State Government and delivered by WorkSafe Victoria, the WorkWell Respect Fund supports large-scale projects that design and deliver evidence-based initiatives to prevent work-related gendered violence including sexual harassment. This includes the Respect and equality in the legal sector project being run by the Women's Legal Service Victoria.
This project will take an industry approach to addressing the high prevalence of work-related gendered violence including sexual harassment in the legal sector. This will include analysing the barriers and enablers, to effective reporting, for workplace sexual harassment.
Implementation
Sustained effort has built a coalition of support for change the legal industry to prevent gendered violence in the legal sector. Like all industries in Victoria the legal industry is facing additional legislative intervention to make employers of legal workplaces legally responsible for providing a safe workplace for all employees. The slide below provides an overview of this strategic landscape.
Gender inequality drives gendered violence. The research reports show workplaces can prevent this violence by targeting gender inequality by focussing on the following 3 key domains:
an organisational culture that reflects gender equitable behaviour, attitudes, and expectations, internally, and in work with the community, with clients and with stakeholders.
systems, structures and processes that support gender equality, fairness and safety
robust and effective reporting systems that ensure safety, compliance and consequences for perpetrators.
Ignorance or Resistance?
In the Chan et al. 2014 survey there was considerable dissatisfaction and cynicism among respondents about whether the wellbeing of legal practitioners was taken seriously by their employers. Even if they knew about it.
For example, a 32-year-old mid career female solicitor working in a large law firm saw wellbeing initiatives as not addressing the fundamental systemic issues: "It’s interesting that the problems of lawyer burnout, lawyers leaving the profession and mental health issues (including alcohol and drug dependence) are not going away, even though everyone is aware of them. There are a lot of people ‘talking the talk’ now about these issues, but I think the problems are systemic and will not be fixed by vague employee assistance programs and ‘wellness’ initiatives"
A 44-year-old female solicitor also working in a large law firm believed that, in spite of the availability of seminars to address depression, any acknowledgment of mental health issues would be ‘fatal’ to her career chances: "Although the firm I work for has addressed depression through seminars etc with a view to helping overcome the high rate in legal firms, I believe that it would strongly prejudice my promotion chances if I admitted that I took anti-depressants. I think this is particularly the case for women as we are already perceived by our male colleagues as having less tolerance to stress and so it is fatal to your career chances to reveal any such ‘weakness’."
Better Practice and Legal Working Culture.
In 2024 I rebooted my commitment to the wellbeing of lawyers and the dissemination of my main research finding, Legal Working Culture. In 2007 I proposed this conceptual framework as providing a means to construct a more cohesive and mature change management strategy. This to be underpinned by a Workplace Professional Learning Curriculum incorporating Lifelong learning for lawyers beyond technical legal skills. And which leveraged how lawyers learn to manage and lead at work. And detailed what professional workplace development strategies suit them best. Data from my critical ethnographic research in which I observed and interviewed lawyers across the four pillars of law, solicitors, barristers, law academics and judges informed my proposed Contiguous Education Model.
Change Champion and Coalition of Support
Having previously run a national program of work and industry based management development projects I understand that to achieve sustainable cultural change in any organisation there must be a change champion and a coalition of support. And managers must be open to feedback and personal growth to lead their people.
For example a constituent part of this workplace practice curriculum would be how to manage change in a legal workplace given that lawyers are not only organisational workers but also members of the legal profession. Why is this relevant? Because lawyers' first allegiance is to the Rule of Law not their employer. The tension between operational imperatives and professional practice has thus far really only been explored in the field of ethics.
We require a Legal Education Lifelong Learning framework for lawyers which is underpinned by the four pillars of legal learning, initial Legal Education, Clinical Legal Education, Continuing Legal Education and Legal Working Culture. Specialisation sits across Continuing Legal Education and Legal Workplace Culture.
As stated by the Law Council of Australia the legal profession is becoming fragmented. The Australian Academy of Law was established in 2007 to work towards bridging this widening chasm. This was the same year I completed by PhD.
The recent developments in Victoria provide a fresh opportunity to revisit the imperative to build a contemporary and cohesive legal education framework for lawyers' lifelong learning in their workplaces.
Time to Joust
As I look deeper into what has transpired, or not, since completing my own research, I realise that I am not the only one who has experienced stonewalling from those in the profession who claim to be the champions. But not necessarily for all of us in the Profession.
This is where those who develop and deliver legal education services need to take charge of ensuring that there is, as much as possible, the universal opportunity for lawyers throughout their careers to benefit from high quality professional Lifelong learning. As we all know this is not currently the case.
To pursue my quest to champion the wellbeing of those lawyers who come after me I have come to realise that I must get back on my horse, put on my armour and joust. Jousting is a medieval and renaissance martial game between two combatants on a horse. The joust has became an iconic characteristic of the knight in the medieval period. It does however have another more modern meaning.
In the picture below we see 2 "knights" jostling for dominance. Their lances in hand. The fence between them signifies territory or boundary setting. If a knight successfully knocks of their opponent then metaphorically they can egress into or own the others' territory.
Presently in 2024, modern Australia, we metaphorically still have the knight upon his or her horse representing the entitled lawyers with the dominant power in our industry jousting for position. They sit astride their horse and barge on - knocking off any weaker opponent. Dispersing our energy and enthusiasm.
Winning is about having the strongest horse, lance arm and best armour. There exists an archaic loyalty to a time past. When people were not equal. And some were more entitled than others.
Who is prepared to get on their horse and change this paradigm?
Who dares to question their right to disregard the wellbeing of the village (or community) of lawyers who exist. We may fall off our horse. But we can decide to get back on. Everytime.
Dr Deborah Hann, 15 June 2024
Hann, D.,PhD., (2007) Lawyers Practising Learning: Reshaping Continuing Legal Education.
Lawyering Stress and Work Culture: An Australian Study (2014) UNSW Law Journal Volume 37(3) p 1062.
Our Watch, Change the Story: A framework for the primary prevention of violence against women in Australia (2nd ed.), (2021), 134.
Our Watch, Workplace Equality and Respect Standards: Promoting workplace gender equality and the prevention of sexual harassment and genderbased violence, (2022).
Pender, K, Improving Workplace Culture: Lessons from the Legal Profession, downloaded @ www.aspg.org.au/wp-content/uploads/2021/11/Improving-Workplace-Culture.pdf
Victorian Legal Services Board + Commissioner, Sexual Harassment in the Victorian Legal Sector: 2019 study of legal professionals and legal entities, – Report of Findings (2019), p vii. 7 Ibid, 46.
WorkSafe, ‘Work-related gendered violence including sexual harassment’, Gendered Violence (30 March 2023).
Women’s Legal Service Victoria, Gender and Intersectional Inequality: Power and privilege in Victoria’s Legal and Justice Workforce, (2022).
Women’s Legal Service Victoria, Sexism and Gender Inequality in the Victorian Legal and Justice Sector, (2019).
Workplace Gender Equality Agency, WGEA Data Explorer, (2023).
WorkSafe, ‘Prevent and manage work-related gendered violence: How to create a workplace that is free from gendered-violence’, WorkWell Toolkit, (7 September 2023)
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