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Radical Solutions to Lawyer Overwork

A correspondent from Europe wrote me recently to ask if I had any thoughts about unhealthy work schedules and high billing pressures facing young law firm associates. I had assumed this was strictly an Anglo-American problem, but based on what my correspondent told me, it seems that wherever in the world there are sizeable full-service law firms, there are overworked and over-stressed lawyers inside them.

The usual expressions of concern are being made by bar associations and the firms themselves, and there’s been talk of task forces, educational webinars, voluntary programs, and so on. I told my correspondent that I didn’t think any of this would amount to much. The problems here are much deeper and more multi-faceted than “billable targets are too high.”

We need to deal in an honest and upfront manner about the root causes of widespread overwork, stress, burnout, and unhappiness in the legal profession, and especially among younger lawyers in law firms. Until we identify and address those causes in a substantive way — which, let’s be clear, would be immensely difficult — I suspect little will change.

To my mind, these root causes — in roughly descending order of importance — are as follows:

1. The fundamental impermanence of law firm employment. Unless you are a particularly influential and business-generating equity partner, your position in a law firm as a lawyer (and especially as a “non-lawyer”) is fundamentally insecure.

Lawyers are raised with this insecurity from the first day they are hired as new associates: You need to prove yourself worthy of continued employment through your words and (especially) your (billable) actions. Are you committed to the firm? Are you willing to do what is demanded of you? If not, plenty of other lawyers out there will be happy (or so they believe) to take your place.

Lawyers are subject to annual reviews of their “productivity,” and the spectre of that assessment grows larger and more menacing as it approaches. Lawyers live in fear of many things — failure, embarrassment, loss of prestige — but the most fundamental fear is the same as everyone else: the loss of a job.

Law firm employment is functionally an “at will” position: you keep your job for as long as it pleases your bosses to allow you to retain it. Insecurity and fear produce stress and overwork —- and there is no chance that law firms are unaware of this dynamic. At a fundamental level, in fact, they rely on it.

2. The unreadiness of young lawyers in particular to practise law. I’ve been writing about this at length recently, but it’s my increasingly strong opinion that we send lawyers out into the market prematurely licensed and under-prepared.

Lawyer licensing is almost entirely input-based, not outcome-oriented. In most jurisdictions, admission to the bar hinges on the achievement of milestones — a law degree obtained, a bar exam passed, an apprenticeship completed. The question is not “What can you do?” But “Which boxes have you checked?” Licenses to practise law should instead be granted only when the applicant has demonstrated the ability to actually do a wide array of things required to serve clients competently. That’s not how the system works right now, and new lawyers pay the price for that.

Under-preparedness and inadequate skillfulness create what we generally call “impostor syndrome,” the awful feeling not only that you don’t know what you’re doing and aren’t qualified to be doing it, but that you’re the only one who feels this way while everyone else around you is brimming with confidence and competence. Carrying off the bravado of expertise while pantomiming the activities of a fully competent lawyer generates an incredible amount of daily stress.

3. The heavy workload and high expectations to bill hours and generate new business. It’s important to recognize that there are three separate elements here: workload, billing, and business development.

Heavy workloads are one thing; but you can have a lot of work to do without having to ensure a minimum amount of that work falls into the narrow category of billable to clients. And you can be expected to bill a lot of hours without also being required to engage in a broad range of activities (few of which you will be trained for or mentored on) that theoretically will entice a client to hire you.

Brand-new lawyers feel the first kind of pressure; lawyers feel the second starting at about six to nine months into their law firm employment; and they feel the third no later than a year before partnership acceptance looms. Each of these pressures creates stress and heavily incentivizes lawyers to work harder and longer, combining to deliver a toxic payload.

As important as this type of pressure is, I’ve listed it third because I believe the previous two factors are even more responsible for stress and burnout among lawyers. When you feel that your job is always on the line, and when you feel chronically under-qualified to be doing the work that is needed to keep your job, then you’re already in a terrible position. Dropping a metric tonne of work on top of lawyers’ shoulders in that situation will break the backs of many who experience it.

4. The high-pressure stakes of legal employment. Many jobs out there are insecure and at the pleasure of employers. Many require long hours and unreasonable expectations. But few of those jobs involve fundamental legal rights and remedies of people and businesses in distress that come to lawyers for help in their darkest hour.

Any lawyer with a functional conscience carries the burden of the problems that clients bring them, or at least recognizes the ramifications of a failure to give the client what they need. Those pressures can easily accumulate, either weighing the lawyer down further into a gloom of stress, or else overloading the conscience and burning it out, resulting in a quasi-sociopathic indifference to clients’ real needs.

There are other factors that contribute to overwork, stress, burnout and unhappiness among lawyers (especially junior lawyers) —- let’s not forget the pandemic — but these in particular seem to be our Four Horsemen. I don’t think any effort to alleviate lawyer overwork and stress can succeed unless it begins with an accurate recitation of their foundational causes.

And that makes the challenge particularly hard, because these foundational causes are bred deep in the bones of lawyer culture and the law firm business model. They’re not an easy fix away — most law firms would fight tooth and nail were you to attack 1 and 3, and most legal regulators would insist that little can be done to fix 2.

The 4th pressure is endemic to the role of every lawyer. But that’s fine — law is not supposed to be a low-stakes, low-stress business. You should feel the weight of responsibility for your clients’ affairs; that’s one of the things that purportedly separates professionals from “mere” tradespeople.

We don’t want to eliminate stress from the role of a lawyer. We want to eliminate unnecessary and counterproductive stress from the lives of those lawyers who are least capable and least well-positioned to protect themselves from it.

So what can we do? Unfortunately, deeply rooted problems like these don’t go away with sunshine and small talk. Law firms work their lawyers too hard, and they know they’re working them too hard, and they don’t much care, because (a) they make lots of money that way, and (b) if and when those lawyers leave, more will pop up to take their place in the hamster wheel (or will survive long enough to become partners and perpetuate the system for their own benefit).

You don’t fix this problem with awareness webinars or awards for work-life balance. You fix it by identifying the causes and ripping out those causes by the roots, using a lot of time, money, and political capital in the process. You need “moon-shot” solutions. Here are three for your consideration.

1. Encourage lawyers to unionize. The fear of dismissal for failure to meet arbitrary productivity targets is greatly lessened when those targets are negotiated by collective bargaining and rights to continued employment become more secure. Equity partners can’t unionize, obviously, but everyone else in the firm can. If you take away the fear of sudden arbitrary unemployment from lawyers, you can reduce their stress considerably. And as more previously unionized lawyers enter partnership each year, the partnership becomes more aware of and sympathetic to the plight of its workers.

2. Provide free ongoing competency training for lawyers. Regulators should start a campaign to destroy “impostor syndrome,” through mandatory CPD that allows lawyers in their first five years to complete the full set of “lawyer knowledge and skills” that their education and licensing process only began to provide before they were licensed. This will alleviate not only the pressure of impostor syndrome, but also stress over messing up a client’s case and getting sued for malpractice. And a further bonus: There actually will be fewer errors and client complaints.

3. Publicize the lawyer stress and burnout epidemic. Law firms can overwork their lawyers in part because a new cohort of fresh recruits enters the profession every year, mostly unaware of the reality of this type of work. That unawareness needs to end. Collect the stories of lawyers who suffered the pains of overwork and burnout in law firms, and make sure every law student entering on-campus interviews has heard them in detail. New lawyers have every right to take on these positions if they choose to do so; but those choices should be informed ones.

These are obviously radical solutions. Financially and politically, they probably seem like non-starters — their costs, in all dimensions, would be enormous. But I believe few measures less radical than these will make much of an impact on a problem this deeply embedded in the DNA of the legal industry. The sooner we accept the nature of the problem, the sooner we can decide if we’re also willing to undertake its solutions.

Comments

  1. Anonymous Ontario Lawyer

    Mandatory CPD? That’s not radical, and it’s not going to make things easier. It’ll make things harder for young lawyers who are already doing a thousand things. And if it was really useful, why would it need to be mandatory? Lawyers are clamouring for resources that are free and useful. There’s no need to make it mandatory, unless you’re of the opinion that you know better than the people themselves about what will make them less stressed.

    “Licenses to practise law should instead be granted only when the applicant has demonstrated the ability to actually do a wide array of things required to serve clients competently.” So, make it even harder for people in order to help reduce their stress? This can only end up reducing the supply of lawyers/driving up the cost, which will make the overwork problem worse. More lawyers to do the work is the answer to overwork. Easier, simpler systems cause less stress for the people in them. There’s enough hoops already, and these sorts of demands are typical of older lawyers who know they’ll never have to jump through the hoops they create.

    A few other problems:
    1. Lots of lawyers are not particularly nice people to deal with. Is that because of their own mental health problems or stress? Maybe. But the result is more stress, and often more work too, because the same people who are outright jerks are often not making it easy for the other side of the legal matter (and being a jerk may even be an act to get results).

    2. Harassment is common. See above, but this one can take on uniquely negative dimensions like sexual harassment or coercive environments.

    3. Make the LSO simpler (and maybe kinder). Make the rules evenly enforced. Many lawyers, particularly solo/independent ones, do not feel the LSO is on their side and this increases the stress involved. Is every rule really necessary for every kind of law practice? Are the costs properly studied and balanced by the benefits (today, not decades ago when the rule was made)? Are there ways to make it easier to practise law in compliance with the ethical/professional concepts that motivate the rules that govern lawyers?

    4. Why stop at unions? Why not get rid of the special exemptions from overtime, etc. that apply to lawyers? Or make it opt-in. Give people a choice if they want employment laws to protect them or not (with more money stemming from “or not”, great for those who want it).

  2. Recovering Lawyer

    It is curious that no articles ever identify the sector dynamics and clients as a problem. Since the legal sector is a service sector, the pressure to obtain and retain business is very high. This “requires” law firms to bend to the whim of, at times, irrational and abusive clients if they want to keep business and, ultimately, their job. Lawyers do not make up cases or projects – they are hired by clients who have gotten themselves into something or seek expertise navigating a matter. These same clients believe that dehumanizing lawyers is OK because of the cost of the billable hour. A high billable hour is paid for expertise not for permission to treat people poorly, require them to work under terrible deadlines that are set by other humans, not machines. Unfortunately, law firms have zero incentive to set boundaries because (1) they will loose a client’s business if they do and (2) there is always a new eager lawyer willing to do the work of the burned out.

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