Educating for Well-Being in Law

Positive Professional Identities and Practice

Caroline Strevens, Rachael Field, Caroline Strevens, Rachael Field

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9781032240763
• eBook ISBN: 9781351104388
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Bringing together the current international body of knowledge on key issues for educating for well-being in law, this book offers comparative perspectives across jurisdictions, and utilises a range of theoretical lenses (including socio-legal, psychological and ethical theories) in analysing well-being and legal education in law. The chapters include innovative and tested research methodologies and strategies for educating for well-being. Asking and answering the question as to whether law is special in terms of producing psychological distress in law students, law teachers and the profession, and bringing together common and opposing perspectives, this book also seeks to highlight excellent practice in promoting a positive professional identity at law school and beyond resulting in an original contribution to knowledge, and new discourses of analysis.

1 The ethics of well-being

Psychological health as the vanguard for sociological change

Colin James

Introduction

The discourse on well-being of lawyers and law students over recent decades is advanced and robust and has enjoyed support within most of the legal profession and academia. For more than a decade, researchers have evidenced issues for concern, criticised current practices in legal education and legal practice, and lobbied for changes towards best practice in sustaining and enhancing the overall well-being of law students and lawyers.¹ Several critiques of the wellness discourse have provided opportunities for pause and reflection on the goals and validity of the claims made. Baron for example argues the ‘well-being movement’ has been duped by the ‘dominant neoliberal discourse’ into shielding law firms from responsibility for the experience of their employed lawyers, locating blame for each individual’s experience at their own feet, so that ‘the structural causes of depression and distress, including public policies that undermine people’s wellbeing, are not addressed’.² Parker agreed, saying the wellness discourse may have been co-opted by ‘powerful interests’ to keep the focus on individuals and their failure to cope rather than important socio-political questions and opportunities for system and institutional change. The focus on ‘resilience’ for example reflects the ‘over-individualising and medicalising [of] more serious, social, economic and political problems in the legal profession and legal ethics’.³ Parker also argued that some of the wellness discourse publications show methodological limitations and that there is no clear evidence of a ‘well-being crisis’ among law students compared to the rest of the population.⁴

1 Judy Allen and Paula Baron, ‘Buttercup Goes to Law School: Student Wellbeing in Stressed Law Schools’ (2004) 29 Alternative Law Journal 285, 287; Norm Kelk et al., Courting the Blues: Attitudes towards Depression in Australian Law Students and Lawyers (Brain and Mind Research Institute, 2009); Minds Count https://mindscount.org/ (formerly Tristan Jepson Memorial Foundation www.tjmf.org.au/) accessed 7 May 2019; Wellness Network for Law <http://wellnessforlaw.com/> accessed 7 May 2019; Sharon Medlow, Norm Kelk and Ian Hickie, ‘Depression and the Law: Experiences of Australian Barristers and Solicitors’ (2011) 33 Sydney Law Review 771; Molly Townes O’Brien, Stephen Tang and Kath Hall, ‘No Time to Lose: Negative Impact on Law Student Wellbeing May Begin in Year One’ (2011) 2(2) The International Journal of the First Year in Higher Education 49; Wendy Larcombe and Katherine Fethers, ‘Schooling the Blues? An Investigation of Factors Associated with Psychological Distress Among Law Students’ (2013) 36(2) UNSW Law Journal 1; Rachael Field, James Duffy and Colin James (eds), Promoting Law Student and Lawyer Wellbeing in Australia and Beyond (2016, Routledge).

2 Paula Baron, ‘Sleight of Hand: Lawyer Distress and the Attribution of Responsibility’ (2014) 23(2) Griffith Law Review 261, 280.

3 Christine Parker, ‘The “Moral Panic” Over Psychological Wellbeing in the Legal Profession: A Personal or Political Ethical Response’ (2014) 37(3) UNSW Law Journal 1103, 1107.

4 Ibid 1104. Parker makes three broad claims: that psychological distress scales have been misused to create clinical categorisations, that studies use non-representative sampling, and that studies claim evidence of law school and legal practice experience causes depression. Specifically, Parker claims the well-being discourse falsely concludes lawyers and law students suffer clinical depression disproportionately to the general population, and that it is caused by ‘the traditional adversarial idea of legal professionalism in practice and education’ (1104), that errors are produced by ‘slippage’ in language (1115), exaggeration in conclusions (1116), non-representative sampling (1116), commercial bias in selecting participant groups (1118), self-selection bias in surveys (1119), and causation bias (1120).

Similarly, Margaret Thornton has contributed a series of articles that amount to a withering critique of neoliberalism, exposing its effects on law students and lawyers and alleging it has been eagerly adopted by universities.⁵ Deepening the critiques of the well-being movement, Thornton claims that ‘the individualisation of psychological distress effectively deflects attention away from the neoliberal agenda’⁶, which privileges a new form of ‘hypermasculinity’ in the focus on power, acquisitiveness and competitiveness.⁷ Thornton condemns the ‘neoliberal turn’, which she describes as a sharp move to the right in politics, which ‘insidiously transformed higher education from a public to a private good’,⁸ departing from the egalitarian values of social liberalism.⁹ In legal practice, many workplaces offer flexible work arrangements but often the milieu or stigma discourages lawyers from accessing them.¹⁰ Thornton notes that instead of improving the conditions for lawyers, some law firms provide legal staff with free counselling services or ‘resilience’ training.¹¹ In legal education, universities, like big business, accept the pursuit of profit as the new common sense.¹² Similarly critical of the system, Richard Collier and Hilary Sommerlad claim that legal education pushes graduates into a practice that maximises workloads and competition in the pursuit of profits, leaving lawyers with little control in their lives and no hope for security in the future.¹³

5 Margaret Thornton, ‘Law Student Wellbeing: A Neoliberal Conundrum’ (2016) 58(2) Australian Universities Review 42; Margaret Thornton, ‘Squeezing the Life Out of Lawyers: Legal Practice in the Market Embrace’ (2016) 25(4) Griffith Law Review 1; Margaret Thornton, ‘Work/Life or Work/Work? Corporate Legal Practice in the 21st Century’ (2016) 23(1) International Journal of the Legal Profession 2.

6 Thornton, ‘Law Student Wellbeing’ (n 5) 42.

7 Margaret Thornton, ‘Hypercompetitiveness or a Balanced Life? Gendered Discourses in the Globalisation of Australian Law Firms’ (2014) 17(2) Legal Ethics 153, 156; See also Margaret Thornton, Privatising the Public University: The Case of Law (Routledge, 2012).

8 Thornton, ‘Law Student Wellbeing’ (n 5) 43.

9 Ibid 44.

10 Thornton, ‘Work/Life’ (n 5) 12–15.

11 Ibid. The Law Society of New South Wales set up a counselling service for its members rather than discussing or acting to address causes of distress such as overwork, discrimination and bullying in law firms. Leanne Mezrani, ‘Lawyers Get a Lifeline’ Lawyers Weekly (26 June 2014).

12 Thornton, ‘Law Student Wellbeing’ (n 5) 44; Thornton refers to the Vice Chancellors in Australia who were almost unanimous in accepting the government’s suggestion of fee deregulation in the pursuit of higher profits; Stephen Parker, ‘Vice Chancellor of Canberra University, ABC’ Radio National Sunday Profile (26 April, 2015).

13 Richard Collier, ‘ “Love Law, Love Life”: Neoliberalism, Wellbeing and Gender in the Legal Profession – The Case of Law School’ (2014) 17(2) Legal Ethics 202; Hilary Sommerlad, ‘The Commercialisation of Law and the Enterprising Legal Practitioner: Continuity and Change’ (2011) 18 International Journal of the Legal Profession 73.

In legal practice under neoliberalism therefore, individuals must care for themselves. Law firms are authorised to consider employed lawyers dispensable and their well-being a superfluous cost, because profitability has become legitimised as their sole purpose. The buy-off for the individual under neoliberalism is ‘autonomy’, but not in the sense of self-determination theory that aligns it with competence and connecting with others in shared enterprises.¹⁴ Here, autonomy is the ‘freedom’ to accept or reject the job, and with it the harsh realities of long hours, aggressive billing and a competitive atmosphere.¹⁵ The method, drawing on Foucault, has led to individual lawyers being under increased surveillance and control with competitive billing practices using electronic time recording and monitoring of performance, misnamed as ‘productivity’.¹⁶

14 Edward L Deci and Richard M Ryan, ‘Self-determination Theory: When Mind Mediates Behavior’ (1980) 1(1) Journal of Mind & Behavior 33.

15 Christine Parker and David Ruschena, ‘The Pressures of Billable Hours: Lessons From a Survey of Billing Practices Inside Law Firms’ (2011) 9(2) University of St. Thomas Law Journal 619; Susan Saab Fortney, ‘I Don’t Have Time to Be Ethical: Addressing the Effects of Billable Hour Pressure’ (2003) 39 Idaho Law Review 305.

16 Lois McNay, ‘Self as Enterprise: Dilemmas of Control and Resistance in Foucault’s the Birth of Biopolitics’ (2009) 26(6) Theory, Culture & Society 56; Colin James, ‘Legal Practice on Time: The Ethical Risk and Inefficiency of the Six-Minute Unit’ (2017) 42(1) Alternative Law Journal 61; Maryam Om...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• List of contributors
• Preface
• Acknowledgements
• 1 The ethics of well-being: Psychological health as the vanguard for sociological change
• 2 Self-care as a professional virtue for lawyers
• 3 Values: The flip side of the well-being coin
• 4 Well-being and a positive professional identity in the legal profession: A snapshot of the UK Bar
• 5 Determined to be professional, ethical and well
• 6 The information gap: A comparative study of the paradigms shaping perceptions of career success for law undergraduates and professional legal training students in Australia and the latent implications of non-professional legal career opportunities for law graduates in England
• 7 Widening the approach to ethics teaching and positively affecting the ethical professional identity of trainee solicitors in Ireland
• 8 Connectivity, socialisation and identity formation: Exploring mental well-being in online distance learning law students
• 9 Which hat shall I wear today? Exploring the professional and ethical implications of law clinic supervision
• 10 Clinical legal education and the hidden curriculum in the neoliberal university in England and Wales
• 11 Resilience, positive motivation and professional identity: The experience of law clinic students working with real clients
• 12 Meditation in legal education: The value added toward the well-being of law students
• 13 Identity, well-being and law students
• Index