The recent New Zealand Law Society survey results on the legal profession make very grim reading. Nearly a third of female lawyers have been sexually harassed. Half of all lawyers have been bullied. Well over half of all lawyers rate their job as very stressful.
The sexual harassment statistics are appalling and should concern all lawyers deeply. The bullying and stress statistics should also concern us. We lose many of our best and brightest lawyers since they simply no longer want to be part of the profession. Those that have stepped away from the profession may not want to rejoin it in its current state. I fear that there is a fixed mindset in the profession that the only way to be a lawyer is to work in a continually stressed state.
I am not sure if toxic behaviour and a reluctance to accommodate different work arrangements are causative, correlated or systematic of the same broken model. But I am sure that stress cannot help. Good people can behave badly when under stress. Bad people can behave appallingly. With the benefit of hindsight and a chance to reflect, I regret how I have behaved while under stress and pressure, both in my personal and professional lives.
I am a white, male, middle class, approaching 40, heterosexual lawyer. I pretty much tick every "non diversity" box imaginable. Statistically, I am more likely to be part of the problem than the solution. But while homophily is part of the reason our profession is in its current state, sometimes it can be a force for good as well. If more white, male, middle class, approaching 40, heterosexual lawyers change their behaviours, speak out, and step up, homophily should help those changed behaviours spread through the rest of our colleagues.
Stepping up also means that we need to stick our heads above the parapet and suggest solutions that will change our and our problematic colleagues’ behaviours. Frankly, to me (and I strongly suspect my non-diverse colleagues), diversity and equality policies are the types of things that I compare to kicking a pillow. The impression is gone as soon as the foot is. While laudable, they are not enough. I need concrete, actionable steps that either tug on my heartstrings, or give me a kick up my behind. Without such actionable steps, Things Will Not Change. With that in mind, I set out below some of my thoughts about changing the profession. Some relate directly to dealing with our current issues. Others are more focussed on longer-term promotion of diversity and flexibility. I do not pretend that the following are easy, feasible or perhaps even transformative. But I do wonder what the profession would look like if we tried some.
What would the profession look like if we had a Code of Corporate Governance? Taking a concrete example, what would the profession look like if each firm were required to have at least one an independent (non-lawyer, non-partner) director on its board? Taking it a step further, what would the profession look like if the HR department of each firm was empowered to report independently to that independent director?
What would the profession look like if every firm reported against a common set of diversity metrics? I am a great believer in the power of open data to effect positive change. The legal profession is unique in already tracking our days down to the six-minute unit. It would not take much to report some basic metrics based on that data. And not just stats like 45 per cent of our lawyers are female. Actual work by gender is an obvious one, but personally I would be most interested in some statistics around flexible workers as a percentage of workforce, and their breakdown of billable vs non-billable work. I believe the legal profession make it far too hard to work flexibly. Defining and measuring the problem is one part of the issue, and data will help here. But sunlight makes a great disinfectant too, and open reporting of metrics may have a positive impact in their own right. Certainly, if I were a managing partner of a firm, I would do everything I could to make sure we didn’t rank last in the diversity league tables.
But it’s not just firms. What would the legal profession look like if all legal buyers (i.e. in-house teams and other clients) undertook to respect diversity initiatives? The Law Society and Bar Association have already pioneered the Gender Equitable Engagement and Instruction Policy. Briefing equitably is superb, but what about briefing with a commitment to supporting work-life balance. Most large organisations have their own diversity policies promising accepting work environments and respecting work-life balance. However, I have certainly experienced situations where the abuses of those policies are just outsourced. A client briefs out urgent work so the client’s work-life balance is maintained. But what about the work-life balance of the poor lawyer who gets the brief and has to work all night? If you are a legal buyer committed to diversity, ask your external legal providers to give work to flexible lawyers as appropriate. Tell them if it’s fine that the lawyer doing the work doesn’t pick up the phone on Tuesdays because they’re balancing work with other parts of their life. If you are a firm and receive a brief that looks like it might be suited for a flexible lawyer, work with the client and the lawyer to make it happen.
In that vein, what would the profession look like if every buyer of legal services agreed to pay – say – a twenty per cent premium on fees for urgent or weekend work? Work that is quite legitimately urgent does come up. But personally, I have much lower aggravation and stress levels if I know that I am at least being paid to work all night (or if it counts towards my budget). Twenty per cent premiums are also likely to focus the mind as to whether work is really urgent or maybe it can actually wait until next week. And it’s a great disincentive to the urban legends that sit on something all week then flick it off to the external lawyers on Friday afternoon (fortunately very few in practice).
What would the profession look like if legal buyers were required to report against their own diversity metrics? Disinfecting sunlight will likely frown on briefing out 90 per cent of our work on an arbitrary 24-hour deadline. But what about reporting breakdowns of legal spend by firm? Right now, most firms never say no to work, even if they are already at double their capacity; letting your competitors get a foot in the door is just a risk that future work goes to them too. But what if a legal buyer is committed to briefing out its external legal work equally among its panel and publishes data to show it is doing just that? What would the profession look like if firms were empowered to say no to work for which they simply do not have capacity, safe in the knowledge that they won’t forever be cutting off that pipeline of work?
What would the profession look like if entertaining (whether of staff or clients) took place during school hours? Working parents could attend more easily. And I strongly suspect the instances of alcohol-fuelled idiocy would plummet.
Perhaps most importantly, what would the profession look like if all lawyers had to undertake diversity training? We already make lawyers study ethics in University, during Profs and as part of Stepping Up. Reading the Tournament of Lawyers and doing Unconscious Bias training certainly opened my eyes. One of my most formative experiences as a junior lawyer was receiving a scathing remark from an overworked, stressed out and interrupted (by me) partner. While usually a genuinely lovely guy, at that moment I was left to feel about six inches tall. But it was actually the call to action that I needed. Secure in my own self-belief as the bright centre of the universe, that one scathing remark was the kick I needed and prompted me to be a much better lawyer. But on reflection, I have no doubt that the same comment, in the same circumstances, could have had much different consequences to someone more vulnerable or diverse than me. It will do no-one any harm, and potentially a great deal of good, to periodically be reminded of the power of words and actions, and reminded that the way words are expressed are not always the way that they are received.
Finally, what would the profession look like if the regulatory requirements for locum work were relaxed? Doctors, accountants and other professionals have thriving locum markets. These provide flexible avenues for parents to return to the workforce and enable others who want a flexible lifestyle (for any reason) to still do great work. But any lawyer not employed is regulated as if they were a partner in a law firm, regardless of whether their clients are Joe Public or the country’s largest corporates and public sector departments. As a stay-at-home-parent-turned-flexible-worker myself, this is an issue dear to my heart. My path back to the profession could have been much easier.
My experience as a private practice lawyer and as a client is limited to BigLaw. Different measures may be required for other types of firms. Some of these steps would require law change, others changes to the Rules of Professional Conduct. Some could perhaps be implemented voluntarily or at the demand of legal buyers. Some legal buyers such as government departments may even undertake the legal buyer suggestions voluntarily.
No-one, certainly not me, has a magic cure for the profession. But I do know we need to try. And I hope that other lawyers in our profession who, like me, have benefitted most from the privilege of being white, male and heterosexual, will try hardest of all.
I don’t think the traditional firm model is fundamentally broken. I had some great experiences in BigLaw, made some wonderful friends, and became a better lawyer. But firms are almost invariably pressure cooker environments. And while some love the excitement of deals under pressure, it brings out the worst in some and despair in others. This has certainly contributed to the position we find ourselves in in our profession and leads to the bullying, the power imbalance, the harassment and the lack of diversity. We urgently need to do something about these issues.
I also believe in making flexibility easier and supporting multiple pathways in the profession so that each lawyer can find the right career path for them and their skillset. Not everyone should need to be a rainmaker or work 20-hour days to be seen as successful or lead a meaningful and fulfilling professional life. I genuinely think that promoting work-life balance, diversity and flexibility will help eliminate the worst behaviours by reducing stress in the profession. And if we can’t fix the status quo, we can help tomorrow’s lawyers by opening up equally valued career pathways.
Flexibility certainly works for me. I took a couple of years out of the profession to stay at home with my kids. While it was certainly the most rewarding experience of my life, it was also undoubtedly the hardest and most stressful. And with that life experience and sense of perspective, I am now lucky enough to be working for a progressive, open minded and flexible firm. I work with fantastic clients, on a flexible basis, doing a mix of work that I love including technical legal advice, consulting and coaching, make good money, don’t have to meet budgets or record billable units, and people even want to listen to me share my thoughts about LegalTech.
When you love your job, you won’t ever have to work a day in your life.
Wouldn’t it be great if every lawyer could work like that?
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Matt Farrington is a Juno Lawyer and Legal Technologist. In my working life, I design and implement systems to help lawyers be more effective, and advise on ICT contracting, intellectual property licensing, and data protection and privacy law. I am also also Dad to two spirited girls. They are both wonderful and exasperating. I usually write about legal tech stuff. You can read my thoughts on that at newlaw.nz.