Adding Courts to the Lawyer Wellness Discussion

Like many other teachers of legal ethics, I have started to incorporate more discussions about “lawyer wellness” into my classes in recent years. Issues such as lawyers’ mental health and dealing with stress haven’t traditionally been part of the legal ethics curriculum. It is obvious, however, that they now must. We have undeniable evidence that members of the legal profession disproportionately experience mental health challenges. Given this reality, it’s essential that we acknowledge the importance of lawyer health and happiness in law school and strive to foster a community that works to improve outcomes. Studying this topic in a legal ethics class is a natural fit given the multiple intersections between lawyer regulation and lawyer mental health.

In my class at the University of Ottawa, we consider the mental health challenges experienced by many members of the legal profession, both by reviewing statistics and reading and listening to the first-hand stories of Canadian law students and lawyers who have faced mental health challenges and spoken publicly on the topic. We review various resources available to Canadian law students and lawyers, like JustBalance and Members Assistance Programs (here is Ontario’s, for example).

We also brainstorm how the legal profession and various relevant stakeholders can better respond. We talk about how legal workplaces might improve their practices and how law societies could adopt new policies and resources to encourage lawyer self-care and improved workplace conditions. A big topic of discussion is how law schools and law professors contribute to negative mental health outcomes for law students and lawyers and how we might do better.

One stakeholder that does not often feature in the conversation on mental health in the legal community, however, is the judiciary. For this reason, I was intrigued to see a recent article in the Law Society Gazette of England and Wales titled “Ignore emails after 6pm, family court tells lawyers.” The piece discusses new “well-being guidance” issued by the Central Family Court. The Gazette describes the guidance as follows:

A working draft of ‘Well-being in the Central Family Court’, written by his Honour Judge Robin Tolson QC, says listed hearings should not take place before 10am or after 4.30pm, that courts should rise for an hour between 1pm and 2pm to give time for lunch, and that barristers are not obliged to reply to emails after 6pm.

It adds: ‘Everyone is trying to do their best most of the time. Criticism may sometimes be necessary but rarely improves performance.’

On attendance, Tolson writes that ‘one lawyer is almost always enough’ and ‘solicitors do not have to attend with barristers’. He adds: ‘Lawyers and professional witnesses must be committed to cases, but must juggle their commitments and judges and magistrates must understand this and be understanding.’

I question how much such guidance would practically change the working lives of lawyers in this court. For example, even if there is no ”obligation” to reply to emails after 6pm, I am guessing that lawyers in active litigation will still be responding to client emails and conducting what they see as essential preparatory work during the evening.

Having said that, it is heartening to see a court signaling the importance of lawyer wellness and trying to contribute to changing a culture that often expects lawyers to be available around the clock. Courts are one contributor to this negative culture. For example, I regularly see stories in my social media feed about courts failing to grant what would seem to be routine adjournments to lawyers facing family emergencies, a practice which seems both unnecessary and cruel. Denying such adjournments may not be a regular practice in most courts but it does seem to occur with shocking regularity nonetheless.

The Gazette article mentions that, in response to the family law court guidance, the chair of the Criminal Bar Association of England and Wales wrote in an email to members that he wished there was comparable guidance in the criminal law context, writing “The sad truth is that your well-being is not being prioritised. It is not being respected. It does not appear to matter sufficiently to those with authority over the criminal courts who could issue a memorandum of similar insight, wisdom and respect to the one drafted by the Central Family Court.” I take this as evidence that there are at least some lawyers in England and Wales who feel that this type of court leadership is valuable, whatever its practical outcomes.

I am not aware of any Canadian courts that have issued “well-being guidance” of this type. (If I am missing anything that has already been implemented, I’d be very interested to learn more either through the below comments section or through email). It is something that all Canadian courts ought to be looking into seriously. I am not under any illusions that court-issued “well-being guidance” will radically change the state of lawyer mental health in Canada. I do think, however, it would be a meaningful step and an important acknowledgement of responsibility. There’s little to lose and any gains, even if small, are too important to miss out on.