TLF position paper - Overwork

For the first time in Australia, a law firm has been put under investigation by a government authority regarding the health and safety of its employees.

According to media coverage, the context of this investigation lies in the Royal Commission into Misconduct in the Banking Superannuation and Financial Services Industry, as many firms' litigation teams went into overdrive doing work for clients that have been under investigation by the Commission.

As exceptional as the circumstances of the Royal Commission are, this episode points to a deeper truth that most lawyers are already aware of- that overwork is endemic to the profession. Studies over the past few years show that lawyers work longer overtime than professionals in any other field in Australia. This goes hand in hand with the reality that mental health issues are pervasive among the profession and fueled by the widespread belief that a willingness to work well beyond the standard 38-hour work week is necessary to excel. Attempts to alter this environment are often met with the "realist" response that one should prioritise the possibility of personal success over any principled attempts to challenge long-standing modes of legal practice.

The Legal Forecast believes that the legal profession should respond to ongoing challenges by developing smarter and better ways of practising law. Accordingly, it is our position that the time has come for the legal profession to overhaul its work practices to significantly reduce overwork in the profession. Such change is particularly important in 2018, when young lawyers need to be absorbing a range of skills and perspectives that will allow them to flexibly adapt to the changing conditions of legal practice the and challenges ahead, rather than absorbing arduous routines that leave them burnt out and drive them away from the profession.

The fact that this conversation has become about diagnosing and fixing negative mental health outcomes rather than about prevention or maintaining standards that allow employees to choose a positive work-life balance shows that the status quo is failing lawyers. It is especially failing young lawyers, who face competition for roles and therefore have less power to negotiate their working conditions. Yet the recent investigation shows that lawyers are speaking up about this issue.

It is true that our line of work poses particular challenges. Law firms will make significant commitments to serve the best interests of their clients and go to great lengths to uphold them in order to stay competitive. As such, firms are positioned to absorb risk from clients, such that lawyers must always be prepared to do unexpected amounts of work at short notice. Preparing for such upswings in work is made difficult by the significant time and money required to train new lawyers to do specialised work. And partners earn trust from clients through their ability to drive select teams of lawyers to produce high-quality work which they oversee from beginning to end.

In fact, there is no evidence that such challenges necessitate these unsafe practices. On the contrary, it is recognised within the profession that a sound mind is necessary to satisfactorily carry out the requirements of legal practice. Moreover, recent experience shows several strategies and drivers gradually creating work practices that can provide better outcomes both for lawyers and for clients. These include a move away from billable hours (which is currently being implemented by at least one top-tier law firm in Australia), the automation of various legal tasks, and integrating long-term thinking into practice management and recruitment.

This problem will require a nuanced solution. Patterns of overwork exist not only in law firms, but also in the bar, in-house practice and the judiciary. We envision that a cultural shift will need to occur, and with it, a revision of norms and standards regarding what is a reasonable working week and how much employment contracts, salaries and benefits should reflect the overwork employees are required to do.

Yet currently, there are no organisations in Australia with the mandate of safeguarding working conditions for legal professionals. It is therefore incumbent upon those who preside over the working conditions of lawyers to take charge of this mandate and rethink the modes of legal practice that are creating this problem.

The Legal Forecast sees the recent investigation of a law firm by an external government body as a wake-up-call that the profession cannot continue to take a business-as-usual approach to this situation, whether through expecting lawyers to make their own personal sacrifices or through continuing to promote a culture that justifies long hours. If left unaddressed, this current reality will lead to greater regulatory incursions into legal practice and a legitimacy crisis in the profession. Change needs to come from within.