The Ethics of 24/7 Lawyering

Lawyers work hard and play hard, except for the play part. This asymmetry is owed to the great demands on time and energy that the law profession features as it clings to the old adage that being a lawyer is not a job, it’s a life. With an air of resignation, this vision of the 24/7 advocate is largely accepted. After all, it’s the law profession. Forfeiting a balanced life is just part of the deal. Whether this vision should be accepted, however, is another question. Testing the ethical soundness of the lawyer’s exemption from a work-life balance begs examination of the exemption’s supporting rationales: substantial rewards, client needs, and a lawyer’s freedom to choose another career. When balanced against the importance of a healthy work-life balance, these rationales ultimately fall short of justification. A more reasonable vision of the advocate is needed: a lawyer with a life. 

This analysis rests on the assumption that a healthy work-life balance is a weighty value to challenge. The capacity to regularly engage in activities outside of work like rest, play and time with family, is essential to one’s mental and physical health. Too great an infringement on this capacity is an affront to human dignity. While the line between a healthy and unhealthy workload is not always clear, elevated levels of problems like depression and alcohol abuse among lawyers suggest that those in the legal profession are particularly prone to cross it. And although there are undoubtedly lawyers who do lead well-balanced lives, the Canadian Bar Association has identified concern for a work-life balance as a prevalent concern in the legal profession.

If work-life balance is so important, why should lawyers be expected to forgo it?

Rationale #1: The Money

The instinctive answer: lawyers make a lot of money. The tradeoff for a grueling workload is a padded bank account.

It may be that some lawyers do consider money a fair trade for life sacrifices. But money does not always equal compensation. Many lawyers who make big bucks would readily take a pay cut for a less hectic professional life. This evinces the truth that excess money is a poor substitute for many other components of life—particularly those needed to maintain mental, social and physical health. A paycheque that is used to validate an unhealthy workload is a dubious form of compensation. Secondly, while many of the lawyers that have the most grueling schedules are those who work in big law firms that pay well, most lawyers don’t have triple figure salaries and many of them still have taxing workloads.

Rationale #2: Client Satisfaction

Another justification for a lawyer’s work-life imbalance is the importance of client satisfaction. This emphasis reflects the traditional approach to the practice of law that prioritizes client needs above all other interests. As Lord Henry Brougham declared and the Supreme Court of Canada embraced in R v. Neil, a lawyer “knows but one person in all the world, and that person is his client.” Lawyers also have a professional responsibility to serve their clients with excellence. For example, Rule 4.01 of The Federation of Law Societies of Canada’s Model Code of Professional Conduct requires that advocates “…raise fearlessly every issue, advance every argument, and ask every question…that the lawyer thinks will help the client’s case and to endeavor to obtain for the client the benefit of every remedy and defence authorized by law.” Living up to this standards demands hard work. One could even argue that it’s unethical to restrict a lawyer’s hours if that restriction diminishes the quality of client representation. Of course, reinforcing these expectations are the ever-present realities of business. Every practicing lawyer knows that clients pay the bills, and clients have a their choice of firms.

Are lawyers fated, then, to live their lives in an office?

Hardly. While the practice of law may, by nature, demand hard work and long hours, the demand for constant long hours is a human construction. Balancing the needs of clients and lawyers is a question of work distribution and willingness on the part of law firms to be more flexible. Periods of intense work can be balanced with adequate time off. Billable hour requirements or client numbers can be reduced. Salaries could also be reduced to accommodate additional staff to help share the load. These adjustments may sound counterintuitive to the profit-seeking mind, but reforms are necessary if profits are to be pursued with the well-being of lawyers in mind.

In the end, lawyer-friendly reforms might actually be profit-friendly. Healthier, happier lawyers are more likely to stick around, saving law firms substantial losses in talent and expertise that come with high turnover rates.

Rationale #3: You Get What You Ask For

Of course, no one is forcing lawyers to be lawyers. The corresponding contention is that if lawyers choose their careers, they choose the shackles that come with it.

This may be true, but this approach to the law profession has the unfortunate effect of creating a niche job market for those who are willing to sacrifice, or do not need to consider, other life priorities. Osgoode Hall law professor Trevor Farrow highlights the particular difficulty this presents for the increasing number of single parents who practice law. This difficulty impacts women especially, further straining the already disproportionate accessibility women have to the law profession because of their traditional role as primary caregivers. And those aren’t the only trends to consider. Other demographic changes will intensify the need for flexibility among lawyers, like the ageing of the baby boomer population with corresponding caregiving responsibilities. It’s not only unfair, but increasingly impractical for the law profession to favour detached individuals.

It also stands to reason that simply because people are willing to work under taxing conditions does not mean the conditions are ethical. Should the law profession be allowed to demand an unhealthy work commitment from lawyers just because there are willing recruits?

24/7 Lawyering is Losing Steam

These days, the recruits are less willing. Young lawyers in particular are much more reluctant to buy into the “law as a life” narrative and are not afraid to say so. Some have made creative efforts to encourage change. For example, a group of Stanford Law Students has collected public data from top national law firms in the U.S. and assembled a ranking system focused on diversity and quality of life. The compilation includes information on law firms’ minimum billable hours and participation in pro bono work. Efforts like these may mark the beginning of the end of the 24/7 lawyer era.

Conclusion

The law profession is shaped by the choices lawyers make. Lawyers have chosen to create a profession in which money is made by the minute and billable hour expectations generate anxiety. But, as Farrow points out, there’s no reason why law has to be practiced as though the world is in a constant state of emergency. Money can still be made and clients can still be pleased if the profession better accommodates its lawyers. And while no one is forced to be a 24/7 lawyer, it is unfair that the profession needlessly excludes qualified people, and unrealistic to assume that it can continue to count on those who have few obligations to the rest of the world. Lawyers should be expected to work hard, but they should also be allowed and, indeed, encouraged to play hard and to live well.

Melodi Alopaeus is a first year student in the Ottawa University Faculty of Law, Common Law Section.