Another Inconvenient Truth

Mental ill-health in the legal profession: what is wrong and how it can be fixed

Public Defenders Conference - Taronga Zoo

Justice Anna Katzmann [1] 21 February 2015

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I acknowledge we are gathered on Gadigal land and I pay my respects to the Gadigal people.

I thank the Public Defenders' Office and the Senior Public Defender, Mark Ierace SC and the chambers manager, Ruth Heazelwood, not only for giving us this opportunity to speak with you but, more importantly, for their commitment to, and leadership on, this important issue.

In April 2009 Anthony Cook, a beloved and widely admired public defender at the cusp of an illustrious future as a recently appointed senior counsel, took his own life. He was one of six barristers who committed suicide in the two years when I was bar president. And he was one of countless lawyers who struggled with mood disorders. Six years on the struggles continue.

Survey after survey in this country has revealed disproportionately high rates of depression amongst lawyers. The annual surveys of professions conducted by Beaton Consulting have repeatedly scored lawyers higher than any other professionals. The Courting the Blues survey conducted by the Brain and Mind Institute in Sydney in 2008 revealed high levels of distress among both solicitors and barristers and also law students. A recent study conducted by Professor Janet Chan, Suzanne Poynton and Jasmine Bruce from the University of NSW recorded similar findings. This picture is virtually a mirror image of the legal profession in Canada and the United States, according to reports of surveys conducted in those countries. If you type "lawyers and depression" into one of the most popular search engines, you get nearly 22 and a half million hits.

There are several possible explanations for the high incidence of depression among lawyers. Maybe the law attracts depressives? That is unlikely to be true. What else could it be, then?

Well you don't need me to tell you that the practice of the law is demanding and stressful, though not all the stresses are the same. The practice of law is full of conflict, particularly, but not exclusively in litigation. In private practice there is the competition for work and the drive for profit. In the public sector there are pressures from declining government funding. There are the conflicts inherent in the adversarial process and the sometimes competing duties to the client and the court. There are the internal pressures to excel and the demoralising effect of losing a case, a solicitor or a client. In the criminal law there are stresses arising from the nature of jury trials and managing and consoling witnesses and the accused.

No matter what we do, we will never be free of work stress. Many labour under the strain. Some of us are more vulnerable than others. It drives some to drink and/or drugs. It can contribute to physical illnesses like cardiovascular disease and liver failure. Too often it contributes to mental disorders, especially when combined with other stresses in one's life. Sometimes, a thoughtless demand or a barking command can be the straw that breaks the camel's back, so to speak.

As Dr Fisher will shortly explain, the way that lawyers work can contribute to or aggravate a range of mental disorders. The problem is a systemic one. To a large extent it reflects a failure of leadership. As one champion of change put it, "the fish rots from the head". We need to reflect on where we have gone wrong and where we can improve. This is an issue that affects every part of the profession, from the young to the not so young, solicitors in private practice and working for the government, in-house lawyers, barristers and judges.

This is the inconvenient truth. It has taken the profession far too long to wake up to it. In the meantime, many lawyers and their families have suffered in silence. But the problem is not intractable. There is a great deal we can fix. It isn't too late but we have no time to lose.

The TJMF guidelines were launched on 12 May last year. The same week Chris Merritt, the Legal Affairs Editor for The Australian newspaper reported that law firms were facing a blowout in premiums for salary continuance insurance because of the growth in claims associated with mental health issues among both partners and employed solicitors. One insurance broker, Stuart Whitbread of Jardine Lloyd Thompson, told him that the rise in these claims meant that firms were facing premium increases of between 50 and 80% in contrast to a premium rise of only 30% for other professions and some insurers and reinsurers had refused to provide salary continuance cover for some law firms. Many of the claims on these policies were triggered by lawyers working too hard and not paying enough attention to their physical and psychological wellbeing. Mr Whitbread said that the problem did not just manifest itself as mental illness; there was also a lot of coronary and vascular disease.

The TJMF guidelines were developed by a committee chaired by Prof Jill McKeough, then Dean of the University of Technology, Sydney, and a member of the board of the Foundation. There was an extensive consultation process. Membership of the committee was broad following a public and private campaign directed to interested individuals and organisations. It included Dr Fisher, the legal risk manager from LawCover and representatives from law firms, in-house legal teams, government legal agencies, members of the Bar, the bench and university law faculties. Draft guidelines were presented to a forum of managing partners of law firms and senior managers and executives of legal organisations to provide feedback on the proposals and to ensure as best we could that the concerns of the profession as a whole were addressed.

The guidelines have been endorsed by the NSW Mental Health Commission, which was one of 26 inaugural signatories. There are now 88 and the numbers continue to grow, in recognition of the need to fix what has been described as a toxic workplace culture, particularly in larger law firms, but the problem is by no means confined to them.

Signatories range from small to large law firms. They include, I'm pleased to say, the NSW Public Defenders, Director of Public Prosecutions, Legal Aid NSW, a range of multinational, national and smaller law firms and the in-house legal teams from Westpac, Leighton Construction and Telstra. Amongst the solicitors who have signed are top tier firms like Ashurst, Allens, King & Wood Mallesons, Herbert Smith Freehills and Norton Rose Fullbright. The Law Societies of NSW, Queensland, South Australia and the ACT have signed; so, too, the Victorian Bar - but not your own. I am at a loss to understand why.

After all, the purpose of the guidelines is to promote the psychologically healthy legal workplace. They identify 13 psychosocial – or work-related - factors or criteria, which were drawn from guidelines developed by the Canadian Mental Health Commission, and they suggest (rather than prescribe) a blueprint or framework for implementing improvements ‑ from basic to best practice. True it is, there are aspects of the framework that do not suit the nature of barristers' practices – or judges' for that matter ‑ but they are easily adapted to every legal workplace. In any case, solicitors are not a homogenous group. What is appropriate for a large law firm or a government department or agency will not necessarily be appropriate for a sole practitioner with few employees. Furthermore, each workplace brings its own stresses and its own challenges, not least because of the individuals who work in it. Consequently, there cannot be a one size fits all model. These are guidelines, not protocols. Nevertheless, the psychosocial factors, to which I will come in a moment, are universal. 

Some of the goals are easier to achieve than others. All require a commitment to a healthy and contented workforce and strong leadership to attain it.

Let me explain.

Organisational culture refers to a work environment characterised by trust, honesty and fairness. Naturally enough that starts with good leadership. This is an issue not only for law firms and government agencies but also for barristers' chambers.

At a conference in September last year, Danny Gilbert, one of the founding partners of the leading law firm, Gilbert + Tobin, observed:

"You've got to have a culture where people have the confidence that they can speak their minds, where they can talk about the elephant in the room and where they can bring to the table discussions about things that their bosses might not want talked about. Leaders who don't produce that kind of culture are failures as leaders."

Psychological and social support means a work environment where co-workers and supervisors look out for, and support each other.

Clear leadership and expectations describes a work environment where there is effective leadership and support that helps employees know what they need to do, how their work contributes to the organisation, and prepares them for impending changes. 

Civility and respect refers to a work environment where everyone is respectful and considerate in their interactions with each other as well as other professionals, clients and the public.

Psychological competencies and requirements denotes a work environment where there is a good fit between a person's interpersonal and emotional competencies on the one hand and the requirements of the position she or he occupies on the other.

Growth and development focuses on a work environment where people receive encouragement and support in the development of their interpersonal, emotional and job skills.

Recognition and reward denotes a work environment in which people's efforts are appropriately acknowledged and appreciated in a fair and timely manner. Let me give you an example from my own workplace. No, I did not get the prize for the best or the fastest delivered judgment. We have national excellent service awards which recognise outstanding performance by individual staff members and teams in providing service to others within the court or the wider community.

As some of you will know, our court recently switched to electronic court files. The work involved was extensive. Last year's award was given to the Electronic Court file team. The award was publicly announced by email to everyone in the court, and in the various registries across the country the Chief Justice presented all members with commemorative certificates. I would like to say everyone received a bonus but that might tend to mislead.

Good involvement and influence by staff refers to including staff in discussions about how work is done and how important decisions are made.

Workload management requires no explanation but the suggested framework to address the issue involves educating people on matters like prioritising tasks, establishing flexible work arrangements, calling planning meetings, reviewing and measuring workloads and seeking feedback.

Engagement refers to a work environment where everyone feels connected to his or her work and is well motivated.

Balance denotes a work environment in which there is recognition of the need to balance the demands of work, family and personal life. For barristers and other self-employees that involves learning how to say "no" to offers of work which collide with other obligations. It means scheduling holidays and recreational pursuits and not cancelling save for very good cause.

Psychological protection is defined as a work environment where management takes appropriate action to protect employees' psychological safety. It can be achieved, for example by education and training and the promulgation and enforcement of anti-bullying and harassment policies, for instance.

Protection of physical safety requires no explanation. It starts but does not end with the establishment of work, health and safety policies.

In order to illustrate what can be done, I would like to speak about two workplaces – one public, one private ‑ where real strides are being made.

Jon Poulson, the Australian managing partner of Squire Patton Boggs, an international firm of commercial lawyers and an inaugural signatory to the TJMF Guidelines, has spoken publicly of the changes to work practices at his firm. He is justifiably proud of them.

The firm established a task force looking at government structure, partner remuneration, staff and client strategies and developed a framework based on the kind of principles that feature in the TJMF Guidelines. The result was that, within a couple of years, staff engagement increased significantly, there was a corresponding drop in staff turnover, a $14 million increase in revenue and a doubling of the profits. He says he was told by many that it was impossible to move staff engagement to this extent in such a short time but he insists it can be done if you put people first. The firm has gone on to win several awards.

We all owe it to Anthony Cook and all the other fine lawyers who died too soon or who needlessly suffered to take this issue seriously and make changes to the way in which we work. The costs of not doing so are too high.

It isn't hard but it requires constant vigilance.

Look after yourself – and look out for each other.

Thank you.

[1] Judge of the Federal Court of Australia and Additional Judge of the Supreme Court of the Australian Capital Territory.