Legal Education Digest
I Will Survive: Strategies for Improving Lawyers’ Workplace Satisfaction
C James & J Finlay-Jones
 LegEdDig 12; (2007) 15(1) Legal Education Digest 32
U Newcastle 2nd Asia-Pacific Educational Integrity Conference Proceedings, 2005 pp 108–118
Practising law is dangerous for your health. Many studies over the past two decades show lawyers in the United States suffer poor physical health and significant levels of mental illnesses, especially depression, alcoholism and drug abuse, as well as high rates of divorce and suicidal ideation. The problem in the legal profession was clearly identified in the 1980s and the blame sheeted to law. By the1990s the situation had deteriorated and became a concern for the American Bar Association.
In 1998 Professor Susan Daicoff argued there was a ‘tripartite crisis’ in the legal profession, consisting of a decline in professionalism, a decline in the public opinion of lawyers and a decline in the wellness and satisfaction levels of practising lawyers. Subsequently, in 2005, Seligman, Verkuil & Kang published the results of a study that confirmed growing unhappiness among lawyers, particularly young lawyers.
In Australia and New Zealand practising lawyers face less risk, but the situation is deteriorating. There are some early signs of the awful ‘tripartite crisis’ in Australia. In 2001 the president of the Law Council of Australia addressed the 32nd Australian Legal Convention with a paper that began like this: There has been an unprecedented number of attacks this year on the legal profession characterising it variously as greedy and self-serving, as tax avoiders and abusers of the system for personal gain. In formulating these attacks, commentators have attacked all lawyers, without differentiation.
There is a growing body of Australian data that suggests a gradual decline in the well-being of practising lawyers. While not on the American scale it should be a concern for the profession and for law schools.
By the early 1990s the Victorian Law Institute Journal began an occasional series intended to encourage lawyers to look after themselves, such as the situation of lawyer ‘Tom’ who had turned to alcohol because of work-related stress.
Another signal of problems is the high rate of lawyers leaving the profession. It has been reasonable to blame inflexible working conditions that made it difficult for people with parenting responsibilities, who were and remain typically women. In 1989 one of the first empirical surveys on the satisfaction of Australian lawyers considered the reasons given by solicitors leaving the profession in Victoria. The survey caused some concerns because it showed that 6 per cent of male practitioners and 12 per cent of women practitioners did not renew their practising certificates. The main reason given by men was ‘Lack of Satisfaction’ (shared with ‘Personal/Lifestyle’). Women gave ‘Personal/Lifestyle’ as the biggest reason, followed by ‘Family Commitments’ then ‘Lack of Satisfaction’.
Another Victorian study in 1999 showed up to 30 per cent of private practitioners were considering leaving their jobs. By 2000, 44 per cent of lawyers in Sydney and Melbourne were considering leaving their present firm.
In Queensland in 2000 an experienced legal recruiter warned that the majority of lawyers in that state were unhappy at work and were looking for change. Researchers surveying law graduates nationally in 1995 found that the most frequently used skills were oral and written communication. These skills are not generally taught in law schools, except for some with good clinical legal education programs, and in 2000 another government survey of employers found that communication skills were still among the biggest deficiencies of graduates. The discourse continued to reflect a belief that there were two issues of concern, theory and practice. The perceived problem was that universities taught theory, but despite some minimal and mandatory practical legal training, lawyers were largely expected to find out for themselves how to practise law.
A study in Western Australia in 1999 identified the causes of dissatisfaction of legal practitioners, and found them to be largely related to communication failures within the firm.
In New South Wales as early as 1991 the Law Society of NSW was sufficiently concerned about stress levels in the profession it established LawCare, a counselling service for practitioners and their families. By 1998 a study found that solicitors were working ‘excessively long hours’, even more than in other professions, and that it impacted on their family and personal lives. In 2001 however subsequent reports by LawCover and the Professional Standards Department of the Law Society of NSW found that unacceptable numbers of solicitors faced personal difficulties such as depression, alcohol dependency, gambling, stress and even serious illness.
These difficulties impact not only on the quality of life among lawyers but on the quality of their work. Complaints about legal practitioners, including failure to respond to clients’ enquiries and excessive delays in handling matters led to the creation of a new service for lawyers called the Lawyers assistance Program Inc (www.lap.com.au).
Law schools can never teach all the law, and are easy targets for accusations that they teach ‘the wrong thing’. In Australia both the 1987 Pearce Report and the 1994 McInnis and Marginson Report provided critiques of the slowness of law schools to introduce legal skills into the curriculum. Similarly, the Australian Law Reform Commission in 2000 called for legal education to focus on what lawyers need to do rather than traditional notions of what they need to know. In 2001 the Law Council of Australia blamed the Commonwealth Government for starving law schools from the late 1980s by placing them in the lowest funding category at a time when studying law was becoming very popular. While practical legal training had commenced in large firms and some law schools by 2001, the Law Council complained there was no coordination or monitoring of standards.
In the late 1970s many lawyers suffered not only from high work loads but from inexperience and the frustration of knowing the theoretical answer to a client’s problem but having no idea of the procedures necessary to solve it.
Recognition of these problems helped the growth of clinical legal education, which has made inroads in Australia since the 1980s. The first clinical legal education began through Monash University in 1975 and the second through the University of New South Wales in 1981. Many clinical programs provide students with experiences that help them develop their interpersonal skills. However the combined impact of clinical legal education so far on the Australian legal profession may not be enough to stave off a crisis.
Most academics and practitioners would agree that practical legal training helps individuals entering the profession as well as benefitting their employers and the community they serve. However, the debate has been dominated for too long by a dualist argument that perpetuates a continuum between doctrinal legal education and practical legal training. Neither of these two, nor even combining them, is likely to make much difference to the satisfaction and long-term survival rates of practitioners until law schools recognise the value of personal development as part of legal education.
Researchers have identified many causes of depression among lawyers, however knowing the causes has not led to any significant changes in the profession or in the incidence of the illness. Early American data showed that four out of ten students who entered law schools up to 1967 failed to graduate.
Research in 1999 suggested that law schools contribute to the malaise in the American legal profession as law students exhibited higher levels of depression than the general population. Those findings were confirmed by Krieger when he and K. M. Sheldon, psychologist, found that law students who at orientation exhibited normal mental health patterns, by second year displayed significant anxiety, depression and reduced motivation.
Legal education seems to reproduce and reinforce a culture that prioritises ‘external’ measures of success, such as grades, credentials, appearances, money, win-ratios and prestige. Legal practitioners are known for making choices that correlate strongly with needing external rewards and recognition, but which also produce high levels of stress.
Doctrinal law schools emphasise ‘legal analysis’ and teach that the law exists as a discoverable truth. There is no place for the uncertainty of real life when the focus is on finding the correct answer from analysing complex legislation and precedent appeal cases. Most students are taught as if law is already justice, instead of an attempt to achieve it; as if there is a correct and identifiable answer in every case.
Similarly, while law schools acknowledge the importance of professionalism, they often teach it as an academic subject called ‘legal ethics’, consisting of rules and principles to be memorised. In clinics, students can be supported to develop ‘internal’ criteria of professionalism such as personal values, conscience, feelings and character.
Clinics could guide students towards understanding legal professionalism, not as a list of rules to follow, but as an attitude of careful practice. Supervised legal experiences can help students work out where their strengths and weaknesses are and help them develop emotional competencies and become more integrated to cope with stressors. Ideal clinical programs include role-plays of interviews and negotiations in preparation for supervised work with real clients. They are supported by routines and activities that encourage reflection by small group discussion, mentoring and keeping journals. There is a significant amount of theoretical validation for the kinds of personal development that can be facilitated by clinical legal education programs.
The University of Newcastle Legal Centre (UNLC) provides clinical legal education for law students who undertake the Professional Program or the Public Interest Advocacy elective. The Professional Program leads to the award of a Diploma of Legal Practice in addition to a Bachelor of Laws. The clinical courses are integrated with the mainstream School of Law courses and provide students with opportunities to practise law in real client situations with experienced supervision.
The students who complete the Professional Program are eligible for admission to practice upon graduation and have no need for further formal training. During their clinical sessions students have the opportunity of various placements at UNLC where they conduct initial interviews with clients, research, investigations, case-planning and draft correspondence and documents in general legal advice, ongoing open-file matters as well as major public interest cases. Students may also get experience of supervised legal practice at the Many Rivers Aboriginal Legal Service, the Legal Aid Commission of NSW, a private legal firm or a public law office.
The authors are piloting a research project to investigate the effects of law school experiences on the workplace satisfaction of graduates of the Newcastle School of Law. The project aims to correlate findings of workplace satisfaction of practising lawyers with experience (or ‘non-experience’) in clinical legal education and preliminary measures of emotional intelligence. It aims to identify the major causes of dissatisfaction among graduate lawyers.
The diversification of legal practice makes lawyers’ stress levels harder to address because of the many influencing factors. Lawyers in large firms may spend their working lives ‘law shaping’ on behalf of their affluent, usually corporate clients, through high-level strategic lobbying, issues planning and policy development. In medium and small firms lawyers compete against each other for promotion, against non-lawyers offering similar services (eg. conveyancers, tax agents, mediators, immigration agents), and against virtual services and information on the internet.
Patrick Schiltz strongly recommends we should advise students to avoid joining large firms if possible, or at least be selective on what firms to work for.
Our proposed research may enable an assessment of the risk factors for practising lawyers in Australia. We hope to develop evidence-based options for clinical programs to assist law students to develop personal skills, increase their emotional capacities and adopt positive attitudes that will improve their chances of survival in legal practice without diminishing their overall well-being.
Until we know if an American style crisis is developing in the Australasian legal profession we can do a lot to improve the satisfaction levels of lawyers, avoid a decline in professionalism and improve the public opinion of lawyers. Taking seriously theories like emotional intelligence and allowing them to inform our clinical teaching practices would be a good first step to help identify the risk factors. We would then be better able to familiarise students with the risks of legal practice and to help them focus on the opportunities for personal development that good clinical programs can provide.