For decades, efforts have been made to define lawyer competence. But definitions generally have failed to capture a critical dimension that Roger Cramton insightfully observed in 1981: ‘Technical virtuosity does not translate into the routine rendition of high quality professional service.’
He identified inattention, laziness, the pressure of other work and sheer mistake as factors that can adversely affect the competence of lawyers. Alcohol abuse and mental illness are other inhibitors identified around that time.
Today, the physical, mental and emotional wellbeing of lawyers is dominating discussions on competence. Not only is there a concern for clients not receiving competent services, but there is also a realisation that these factors are devastating too many lawyers and their families.
These issues were highlighted in the recently published report of the National Task Force on Lawyer Well-Being. This task force was conceptualised and initiated by the American Bar Association Commission on Lawyer Assistance Programs, the National Organization of Bar Counsel and the Association of Professional Responsibility of Lawyers. In its report, the task force defined lawyer wellbeing as ‘a continuous process whereby lawyers seek to thrive in each of the following areas: emotional health, occupational pursuits, creative or intellectual endeavours, sense of spirituality or greater purpose in life, physical health, and social connections with others’. It also observed:
‘To be a good lawyer one has to be a healthy lawyer. Sadly, our profession is falling short when it comes to well-being … too many lawyers and law students experience chronic stress and high rates of depression and substance use … We are at a crossroads. To maintain public confidence in the profession, to meet the needs for innovation in how we deliver legal services, to increase access to justice, and to reduce the level of toxicity that has allowed mental health and substance use disorders to fester among our colleagues, we have to act now. Change will require a wide-eyed and candid assessment of our members’ state of being accompanied by courageous commitment to re-envisioning what it means to live the life of a lawyer.’
I see a serious commitment by law firms to providing workplaces that support the mental and physical wellbeing of their lawyers and staff – and, in turn, individual lawyers taking personal responsibility for their wellbeing – as critical to our future.
There are many signs that this is occurring. For example:
- Some law societies provide, as a member benefit, free counselling.
- Many firms begin the day with mindfulness sessions for their staff and also provide ‘wellness’ rooms.
- The trend for greater flexibility in working hours, and working from home.
These comparatively recent developments evidence a concern to meet the personal needs of those working in the legal profession.
Arising from the tragic suicide of a promising young lawyer, Tristan Jepson, a foundation in his memory has developed a set of guidelines that ‘are a free and comprehensive set of resources designed to protect and promote psychological health and safety in the legal workplace’. It is gratifying to note the large number of signatories to the guidelines.
Achieving wellbeing for the profession means developing and promoting appropriate work habits and a work environment that is both personally and professionally supportive. The challenges in this regard are particularly significant for estate and trust lawyers. As I have previously observed:
‘Trusts and estates are a very personal area of legal practice, with much responsibility and often sadness attached. It’s important that we outfit ourselves emotionally, physically and psychologically to cope with the challenges.’
There is broad recognition internationally that a fundamental ethical duty of lawyers is to ‘deliver legal services competently, diligently and as promptly as reasonably possible’.
The task force referred to above takes the requirement of competence one step further by asserting: ‘Lawyer well-being is part of a lawyer’s ethical duty of competence.’
There can be no doubt that the bar for the legal profession and individual lawyers to fulfil their ethical duties is being raised to address this serious issue. This is a development to be applauded.
Margot de Groot, ‘The path to a healthier profession’, STEP Journal (Vol26 Iss7), p.25