"The future of the profession is ours. So let us be professional about tackling its long-running structural and cultural crises with the relevant structural solutions."
Marcus Dahl offers a structural answer to the structural crisis of law practitioners.
We've all heard it before. A colleague has been getting home late, frustrated by their work conditions, stressed, sleep deprived and noticeably unhappy. But they'll persevere, because with the right career progression, there might be a well-paid light at the end of the tunnel some time in their 30s or 40s.
I've heard it all too many times, but when a young lawyer described their early career to me as "just doing their time for a few years" during the same week that I'd been to a maximum security prison inspection, I decided that perhaps something deeper is wrong here. At least the prisoners were afforded the dignity of regular sleep and meals.
One answer, though radical for some, is that all salaried lawyers (below the partner or management level) should unionise, so as to collectively counter the disproportionate power of those who dictate the formal and cultural conditions of their employment. In this piece, I argue that there are three issues demanding structural labor changes in the profession, to all of which unionisation is a perfectly reasonable and professional response.
The first way in which the wheels are coming off in the legal profession is, of course, poor work conditions. This is particularly so for lawyers in subordinate positions in large firms or public legal workplaces. The problematic symptoms include excessive or irregular hours, isolating environments, high stress and an expectation of poor sleep and work-life balance. These issues are compounded by inflexible or non-existent policies around leave, travel and severance, not to mention career advancement. High rates of unethical workplace behaviour including bullying, intimidation, discrimination and harassment only heighten these environmental risk factors.
All this is magnified by the menace that is billable hours, which acts as an instrument of commercialisation over professionalism. Such an approach inherently disincentivises investment in continuing education, career development programs and teambuilding. It also encourages an unhealthy minimization of hours spent on general office work and daily activities such as eating. It is no secret that these work conditions are dehumanising, and that they have a distinctly gendered impact upon the profession. This is not assisted by unhealthy expectations of an unencumbered male lawyer as the ideal employee. These are long-term, structural issues with labor conditions which are firmly within the scope of collective action and negotiation.
For modern law, the problem runs deeper, and the second issue (and buzzword of the day) is wellbeing. Lawyers have higher rates of depression, anxiety, suicide, alcohol and substance abuse, heart disease and stress than many other professionals. They have lower work satisfaction, lower trust in supervisory and reporting procedures, and lower female retention. These facts have been well-known for years. But the responses have been individualistic. They have painted the lawyers affected as sick and needing support (which may in many cases be true), but have failed to tackle the deeper cultural and institutional problems which enable such unhealthy workplaces. Individualistic discourse shrouds systemic problems. These issues are symptoms of broader problems that often occur in unchecked large and hierarchical organisations, and without broader, industry-wide solutions, redress will remain insufficient.
The third crisis in law is one we do not consider often enough: failure to meet ethical and professional obligations. As lawyers we owe duties of independent judgment and diligent work which we cannot provide if we do not feel safe, respected, well rested and time-rich in our work environment. For example, if our executive functioning is impaired on a regular basis by poor sleep, then we are less able to show the attention to detail, assessment of risk, creative solutions and effective multitasking which is expected of us. If we are overworked and dealing with multiple shards of fractured cases divided between many lawyers on a production line, how can we confidently fulfill our ethical obligations? Some would say there is nothing to be done - it is the nature of a fast paced profession. But others, more persuasively I think, would say the opposite. If we are unable to live up to our professional obligations, then our duty is action to remedy those defects as soon as possible.
Lawyers around the world have long said they are too individualistic to make unions. Too professional, too rich, too stubborn. But what defines the need for collective action is not the work you do or the wages you earn for completing it. It is the existence of a power imbalance against workers and a need to remedy and constantly improve their work conditions. Diverse professionals including doctors, dentists, architects and pharmacists have been doing so for years.
Thankfully, it can and has been done, and by some brave lawyers too. Because it is possible and reasonable to try. After some such cases the American Bar Association has given the green light to unionisation since 1967 and to strikes since 1975 (with conditions to protect clients). New York Legal Aid lawyers went on strike in 1982 and 1994. For both public sector lawyers and private (non sole-practitioner) lawyers, there is much to be gained.
Unionised lawyers can use the vehicles of collective bargaining, interest arbitration and even strikes to seek the structural change we need.We can advocate for defined maximums of daily and weekly billable and total hours as well as clarity on breaks and professional training and development hours. Additionally, we can demand clearer termination, severance, hiring, travel and reporting policies, and clearer communication of the circumstances in which we can refuse work. Public sector lawyers can also argue for better resources, libraries and computers, access to clerk and paralegal support and more reasonable pay and caseloads. All lawyers can benefit from a stronger sense of allegiance to our colleagues, improved morale and better quality of work.
The future of the profession is ours. So let us be professional about tackling its long-running structural and cultural crises with the relevant structural solutions. Our future selves and colleagues might just thank us for it.