Words: Dr. Emma Jones, Open University (May 2017)
Image Credits: Open Source
Reading Time: 5.5 minutes

The potential perils of lawyering in the US have been well established and explored in recent decades. Studies have highlighted the downwards emotional trajectory and decline in wellbeing seemingly experienced by significant numbers of law students.  Once in practice, research demonstrate the stress and psychological suffering that can ensue from working in such a demanding, pressurised role.  In Australia, since 2009 there has also been a growth of interest in law student and lawyer wellbeing, leading to strikingly similar findings.   In both of these countries the suggested causes of these issues largely converge – the challenging, pressurised environment and workload, a lack of social connectedness with those around you, a focus on extrinsic motivations such as financial rewards and status and the ubiquitous notion of “thinking like a lawyer” have all been highlighted as key culprits to date.

Wellbeing and the UK legal profession

In the UK, it is fair to say that there has previously been less sustained academic and professional interest in this subject, leading to a less detailed evidence base. However, the charity Law Care (which focuses on the support of legal professionals) consistently rates stress as the top reason for calls to its helpline.  Similarly, the Law Society of England and Wales, representing solicitors, has also found in surveys that stress levels within the profession are high, citing workload and client expectations as causes.  This suggests that there may well be commonalities between the experiences of lawyers in other jurisdictions and those within the UK legal profession.

Given these indications, it is perhaps unsurprising that recent initiatives have been developed to support wellbeing. These include the Solicitor Regulatory Authority’s production of a set of online resources under the title “Your Health, Your Career” and the Wellbeing at the Bar project, focused on barristers, which reported 50,000 visits to its website within the first three months of its launch.  Law Care has also launched The Legal Professions Wellbeing Taskforce in England and Wales and Legal Wellbeing Scotland in conjunction with a number of key stakeholders in the UK legal profession.  Within UK law schools, various academics are beginning research into law student wellbeing too, with the aim of implementing positive and practical change.

There has also been an increasing interest in concepts such as emotional intelligence and mindfulness. A key example of this is given by The Legal Education and Training Review, which was commissioned by key stakeholders in the legal profession to review the requirements for legal education and training in England and Wales.  This body’s 2013 report explicitly identified both emotional intelligence and empathy as key competencies required by members of the legal profession, identifying the importance of the affective domain within legal practice.

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Barriers to substantive change

Whilst this gradually increasing focus on wellbeing and emotional health is to be welcomed, there remains a question mark over to what extent the initiatives and ideas it spawns will generate the type of substantial and enduring change arguably required within the UK’s legal profession. There are several reasons for this, although each is intertwined to at least some extent.

Perhaps first and foremost, there is the general mistrust and scepticism which concepts such as wellbeing and emotional health can generate amongst certain pockets of the legal profession. The law and emotion have traditionally been seen as antithetical, with emotion representing a form of dangerous irrationality which it is the role of law to suppress with reason and rationality.  The notion of “thinking like a lawyer” is often infused with concepts of objectivity, rationality and hard-headed analysis in a way which seemingly requires emotion to be disregarded.   Given this, it is perhaps unsurprising that the term emotional intelligence was not used by either the Solicitors Regulatory Authority or the Bar Standards Board in their statements setting out the competencies required from solicitors and barristers in England and Wales.  The question of to what extent initiatives on wellbeing and emotional health will be accepted and nurtured by various elements of the legal profession thus remains open to question.

Related to this is the concern that an increased focus on wellbeing is, in effect, in danger of being used as a form of sticking plaster by some parts of the legal profession.   A formal commitment to a wellbeing policy or programme could provide a relatively cheap, simple way to demonstrate a law firm or chambers’ caring credentials.  It does not necessarily require them to determine and deal with the underlying causes of poor levels of wellbeing.  Nor does it require them to investigate the ways such problems may be perpetuated by the broader legal culture and the high demands and expectations it entails.  For example, will a firm feel it needs to be concerned about increasing its employees’ workloads if it has already provided a counselling service to support individuals who are struggling?

This should not be taken to imply a cynical, calculated ruse on the parts of such law firms and chambers. It may well be that there is a genuine commitment to such policies and programmes.  However, on occasion, this may be coupled with a lack of insight and understanding of into the underlying issues involved (not least because of the relative sparsity of research into these in the UK).  It may be that the potential underlying causes, such as the billable hours’ culture and the demands of communication in the digital age, are so deeply embedded within the legal profession that they have, in effect, become invisible to its members.  Where such causes do rise to the surface, they may be viewed as fundamentally intractable, an unchallengeable part of contemporary legal professionalism.

Another possible area for concern is the way that key components of wellbeing and emotional health, such as the ability to manage one’s emotions, are being increasingly characterised as “soft skills”. The phrase itself arguably defines vital emotional traits and abilities by their “otherness”.  In the legal context, it excludes emotion from the “hard skills” of legal analysis and reasoning and holds it as a useful adjunct.  In effect, a handy tool to attract and retain clients by enhancing the client care provided that in no way challenges the notion of “thinking like a lawyer”.  There also seems a danger of such “soft skills” being hi-jacked by a neoliberal agenda which views their ultimate goal as an improved economic output.

The large weight of scientific evidence which demonstrates emotion is intertwined with cognition and an inescapable, crucial part of all aspects of life has remained largely unacknowledged in the UK legal profession. This leave wellbeing and emotional health in danger of becoming a shallow but economically useful concepts which can be picked up or discarded in line with economic expediency.

Listening

Embracing a holistic future

Nevertheless, despite these concerns and challenges, there are genuine possibilities for substantial and enduring change within the UK legal profession. There is an increasing interest and openness in new concepts and initiatives around wellbeing and emotional health amongst key stakeholders which creates real and exciting opportunities.

One way to arguably seize such opportunities is to focus on developing a stronger evidence base in relation to the needs, perceptions and understanding of the UK legal profession. There is some excellent work on emotional labour within parts of the legal profession done by academics such as Chalen Westaby.  There is also work by academics such as Richard Collier specifically on wellbeing.  However, there is still much that remains to be explored.  For example, the work on emotion in the legal profession tends to have focused on certain areas which arguably have the most clear emotive component (such as family and immigration law).  Less investigation has taken place into seemingly less emotive topics (such as corporate and commercial work) to see if, how and why they differ. In tandem with this, the wider research that is available internationally needs to be highlighted and promoted within the UK.  Insights from psychology, neuro-science and other disciplines need to be drawn on to inform notions of wellbeing and emotional health to make them as meaningful and rich as possible.  A greater awareness is needed of the integrative law movement and the diverse and exciting vectors which it encompasses.

Finally, this research must by synthesised and developed into positive, forward-looking strategies which take a more holistic view of wellbeing and emotional health. One that encompasses both the broader structural changes that are required to the legal profession and culture, as well as nurturing individual members of the legal profession.  None of this will be an easy, or linear, process.  However, the rewards will be well worth the journey.

EMMA JONES is a lecturer in law at The Open University. She recently completed her PhD on the role of emotion in legal education.  She is currently working on empirical projects on law student wellbeing and the emotional competence of solicitors. Read more about Emma Jones work here.

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