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Carlos Valls Martinez
Augusta Abogados, Barcelona
c.valls@augustaabogados.com

Report on joint session of the IBA Professional Ethics Committee, IBA Alternative and New Law Business Structures Committee, and IBA Law Firm Management Committee at the IBA Annual Conference 2019 in Seoul
 

Session Co-Chairs

Steven Richman  Clark Hill, Princeton, New Jersey; IBA BIC Officer
Carlos Valls Martinez  Augusta Abogados, Barcelona; Co-Chair, IBA Professional Ethics Committee
 

Speakers

Tracey Calvert  Oakalls Consultancy, Halwell; Scholarships and Newsletter Officer, IBA Professional Ethics Committee
Tat Lim  Aequitas Law, Singapore; Co-Chair, IBA Mediation Committee
Richard Martin  Byrne Dean, London
Moray McLaren  Lexington Consultants, London; Co-outreach and Education Officer, IBA Law Firm Management Committee

 

The IBA Professional Ethics Committee Co-Chair, Carlos Valls, started the session by introducing the speakers, two of whom were authors of recent books:

• Richard Martin, This too will pass: anxiety in a professional world, Trigger: Newark (Nottinghamshire), 2018
• Tracey Calvert, Regulation, compliance and ethics in law firms (Good Practice Guide), Globe Law and Business: Working (Surrey), 2018

In his turn, former Committee Chair Steven Richman had been intensely involved at the American Bar Association (ABA) (as Chair of its International Section), and has consistently shown a deep knowledge of ABA rules of conduct. For his part, Moray Mclaren, IBA Law Firm Management Committee officer, having advised over 100 law firms worldwide, has a privileged perspective of how the practice of the legal profession is becoming increasingly stressful. Co-Chair of the IBA Mediation Committee, Tat Lim is a lawyer in Singapore and a mediation expert.

Richman led the discussions, by inviting the panellists and audience to tackle the definition of ‘burnout’, look at its causes and consequences in terms of ethics, and the possible solutions to it.

 

Object of the session and definition of ‘burnout’

Carlos Valls focused the session on the potential effects experiencing burnout could have on a professional’s ethical behaviour, and whether this was at all relevant from a professional ethics point of view. Richman reminded the audience that, in the United States, when a lawyer knows of a burnout case, there is an obligation to report it under ABA Rule 8.1.2.

Richard Martin helped to explain the concept as it was the subject matter of his book and he had gone through a process of burnout himself. Martin was introduced by the World Health Organisation (WHO), through its International Classification of Diseases (or ICD-11), to a diagnostic tool for medical providers known as the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM 5), which defines ‘burnout’ as emotional, mental and physical exhaustion and states ‘stress’ (not just pressure) is the most obvious cause of burnout. Stress is not an illness in itself, it is a state of mind, a perception that the demands on an individual exceed their resources. Short periods of stress are unlikely to cause long-term problems but prolonged periods of stress can lead to burnout.

This perception of an inability to cope triggers the body’s threat response. The feeling that one is unable to cope is perhaps one of the biggest perceived threats to a professional. This experience of stress that could lead to burnout has to be over a long period of time, it could be disguised or obscured, and may have the form of an anxiety response to the ‘I can cope’ attitude, when feeling under threat.

What happens physiologically when we perceive ourselves to be under threat is that our amygdala is triggered to prepare us to deal with the perceived threat. Being a primitive part of the brain, it wrongly assumes that any threat will be of the physical kind our ancient ancestors encountered and our automatic response will often be one of ‘fight or flight’. The result is that energy and oxygen-rich blood is directed towards the parts of our body that will help us run or fight, and away from parts of our body that are less important at that point, which crucially includes the brain. This results in reduced cognitive functioning as our brains do not work as well, at the exact moment maximum cognitive functioning is needed. The physical translation to such stress and fear is that the blood goes to the legs and arms and away from the brain, which leads to loss of cognitive function and concentration. The audience could immediately understand that a decreasing cognitive capability in an intellectual activity such as lawyering would intuitively have an ethical impact and would be a problem from a number of perspectives.

The effects of burnout could include depression. The anxiety triggered by stress is also likely to make people more aggressive, which could come across as heightened verbal aggression. Martin added that prolonged burnout could lead to depression, or to an increase in (verbal) violence.

Causes

Moray McLaren listed a number of factors for burnout, including:

• the corporatisation of legal services;
• the increasing competition that excluded quests to lifestyle balances;
• change of clients’ needs (‘more, quicker, cheaper’);
• excessive focus or purpose on profits;
• the impacts of technology; and
• increasing problems with alcohol and drug abuse, and depression.

McLaren expressed that in his consulting career he had focused on helping law firms obtain greater profits and admitted that perhaps he had therefore been on the side of the problem, not the solution.

For Calvert, being employed in the legal profession was, on many occasions, a lonely experience, and lawyers are often on their own if there are regulatory and ethical issues which bring them to the attention of the regulatory body. Burnout might show a failure of the law firm as an organisation, but in fact the regulations point at the individual. An additional isolating factor is that insurance providers raise premiums when burnout is reported. Lim, for his part, confirmed that regulations in Asia also point to the individual, not the law firm, and this often creates a pattern where lawyers delay facing the crisis they are living through, until the rules are broken, again stressing the factor of lawyers’ loneliness as an additional cause.

From the audience, Geraldine Clarke (Ireland) observed that the tendency of lawyers is to boast how busy they are, which leads to hiding our own situation – we do not talk. Martin added that lack of work, rather than a surplus of it, can also be a cause of stress.

McLaren introduced a structural factor of the legal profession, which in his view was that lawyers like right/wrong approaches, or applying the rules in a syllogistic manner, but the world and clients come up with grey situations, which increase the discomfort in the practice of law.

Terry Stern (Australia) pointed out from the audience that an additional factor is job insecurity, which affects both junior and senior lawyers.
 

What the ethical rules say

Richman, in raising the question whether some areas may be more prone to burnout situations (such as criminal law, family law or insolvency), drew attention to rules of competence and diligence, and the responsibility of those in a supervisory role. He also suggested applying the reasonableness test.

Calvert also focused on integrity, trust, client best interests and supervising responsibilities, and added that burnout might affect adherence to these principles, but this has not yet been looked at by regulators. Lim confirmed that as an aspirational rule, law firms have a responsibility for creating environments with burnout risks, like requirements for more hours, working on cutting-edge matters, etc.

Even if there were as yet no clear rules, someone from the floor pointed out that it could nevertheless have an impact when renewing licences or in cases of claims by clients for lack of lawyer response.

An objection from the audience was that burnout, or avoiding the risk of burnout, was not perhaps so much a matter of rules and/or rules were not the solution, rather the solution is to modify law firms' cultures. John Rubinstein (United Kingdom) forcefully denounced that the culture of the time-sheet actually tyrannised professionals, to no sufficient (ethical or organisational) reason, and could well be one of the elements to remove.
 

Solutions

Martin thought that the starting point was raising awareness of the problem, as the traditional human barriers (sleep, schedule and distinction between professional and private time) were being blurred. He also asked what drove a professional to work 2,000 hours a year, as this felt like something being driven by financial greed and, in his experience, this was not something that particularly motivated lawyers – mastery, autonomy and purpose would be better motivators for lawyers. Money did not seem the main driver to this exploit. Also, an important battle to fight was the lack of communication - we need to create cultures in our firms in which we are more able to talk about how we are. There are various ways in which this could happen but a simple example would be catching up with our team members on a monthly basis where the only agenda item was how we are doing, and Martin suggested stimulating the care of friendship and disciplined one-month lunches to be able to talk in depth of one’s situation.

He also talked about the Mindful Business Charter, an initiative from the legal profession in the UK, which calls on law firms and in-house lawyers to collaborate across the profession to remove unnecessary causes of stress in their work and treat each other with a greater degree of professional respect. Aspects of the Charter call on signatories to:

• be more thoughtful and more aware of the impact of sending emails in the evening and at the weekend;
• to respect rest periods;
• to have more open and honest conversations with each other; and
• to delegate more thoughtfully within their organisations.

A key message is that we have developed a way of working over the last 20 or 30 years which is neither helpful nor healthy even if it does allow for effective work, which is why no one has ever really sought to challenge this drift. The Charter calls on people to stop and think a little more and to challenge some of the assumptions that we have come to make about how we must operate in this new world of work. Also, the business work had to be meaningful, mindful and reasonable, as it would then trigger for example communication between two law firms that are competing for the same client to stop acting towards each other in a detrimental way. Martin also raised another recommendation to be mindful - to resist sending emails to junior lawyers on weekends, as they would be forced to answer them before the week started.

McLaren thought it methodologically appropriate first to consider the increasing tendency that companies’ ultimate purpose was not the quest for the ever-growing profits, but to create a sustainable activity. Such sustainability, in the case of legal professionals, happened to raise questions on what the professionals need to focus on, and this was the common ground between what they are good at, what they enjoy, what the market needs and how this common field be remunerated, all hopefully shared with the rest of partners as a common purpose. This approach (a mix of different and unrelated factors) would invariably lead to law firms asking themselves how much money would be enough, and what was it that the law firm was trying to achieve. This framework – which would give a sense of purpose both individually and as a law firm – would diminish factors of risk, like the sense of threat, or the senseless blurring of protective barriers to one’s private life referred to above, by helping the ‘work-life integration’ and would help to accommodate both millennials and partners. The ‘work-life integration’ was an interesting expression put forward by McLaren, as opposed to the ‘work-life balance’ which was as much an ideal as difficult to achieve in such a demanding profession as being a lawyer.

In the Asian region and, particularly in Singapore, where the debate had not really started, Lim could not advance solutions, but was glad that the discussion was already taking place in other jurisdictions. What Lim was certain of, is that the causes of stress could be easily identified in simply reading law firms’ data. For example, by comparing the average number of hours lawyers stayed in the office, and the actual number of hours recorded, if the difference was considerable, there was a clear signal of tension.

For Calvert, the regulations did not point to solutions, as they were primarily focused on individual behaviour.

Richman concluded that a final factor in the equation was the increasing lack of commitment to the profession, particularly from younger lawyers, which was partially due to lack of the traditional mentoring programmes from more senior lawyers. The profession was in fact, according to Richman, a calling, a vocation and the loss of meaning and significance in its development could well be a key factor in the descent to the abyss of burnout.

It was clear therefore from the session that avoiding burnout risks and tackling burnout are ethical duties both for the individual professional and for an organisation, and  current professional rules and duties worldwide are insufficient. It may be timely to raise this issue to the attention of the IBA to stimulate the awareness of the problem and its call for additional regulation.

 

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