Curbing lawyer burnout

Recently, the spotlight been put back on overwork due a stinging speech by High Court Justice Jayne Jagot, who took aim at a culture of overwork at law firms across Australia.

The renewed focus is timely given recent industry polling finding many lawyers continue to work more than 50 hours per week. It has found 20 per cent of lawyers put in 50 to 60 hours of work per week, while 13 per cent are at the desk more than 60 hours per week.

Against this backdrop, the federal government’s ‘right to disconnect’ law, which passed parliament in February, could provide some protection for lawyers from overwork.

Under the new law, an employee may refuse to monitor, read or respond to employer contact outside of their working hours, unless the refusal is unreasonable.

Prompted by a federal parliament inquiry that highlighted “availability creep” where employees are increasingly expected to work outside business hours, the law is aimed at winding back the impact of tech like smartphones that have boosted workplace connection.

Sarah Queenan, founder and managing director of Humanify HR Consulting, is one expert who sees upside in the new law for lawyers’ work-life balance.

Queenan believes the law has the potential to prompt employers to place a greater emphasis on employee wellbeing, as Australia joins other countries like France  Canada, Ireland, Spain, and Germany in making it feature of the workplace relations system.

Queenan’s view is that provided the new law is effectively implemented in workplaces, it does have potential significantly improve the way law firms respond to burnout.

A key to effective implementation, she says, is buy-in from law firm management.

“It’s very much looking at burnout as being something that’s on the risk registers of organisations and creating a culture within your organisation where burnout is understood as being a workplace health and safety hazard and something that we actually talk about in our organisation,” Canberra-based Queenan tells LSJ.

“Large organisations have diversity committees and LGBTQ committees and we encourage organisations to be talking about burnout in that same way, creating within a health and safety committee an actual space for employees to come and talk about burnout.”

She says explicit policy on the issue is important as overworked teams can be hard to spot.

“We’ve got to remember that burnout, actually for an organisation in terms of productivity, is often a good thing because what mangers will be doing when they’ve got a burnt-out person, that person is often giving 150 per cent consistently so you these mangers sometimes look amazing,” Queenan explains.

“When you actually pull the hood up and look in a little bit further you see that a lot of these people are really suffering.

The law may help stop burnout before it becomes a big problem inside firms, she says.

“We know that burnout prevention is better than a cure and we know that some of the research shows it can cost the Australian economy more than $15 billion per annum in absenteeism and presenteeism due to burnout.”

Beyond the legal profession

The HR consultant is right in that burnout more than a legal industry issue. According to Australian charity Mental Health First Aid Australia,  61 per cent of Australian workers have reported experiencing burnout, well above the global average of 48 per cent.

Rates of burnout in Australia surged 5 per cent in 2022 compared to the previous year, the charity says, leading to burnout being behind 40 per cent of employee resignations.

Key signs of the condition include decreased satisfaction or sense of accomplishment at work, feeling isolated or disengaged from tasjs, becoming upset or tearful at work and feelings of fatigue, lack of energy, or “feeling drained”.

Research also backs up claims that far from boosting bottom line, overworking employees leads to negative business outcomes.

According to the Harvard Business Review, there’s evidence that overwork impairs sleep, contributes to depression, heavy drinking, diabetes, memory loss, and heart disease. This presents as absenteeism, resignations, and rising health insurance costs in the workplace.

For law firms, Queenan says it’s essential that policy, once formulated, is embedded into operations ahead of the right to disconnect rules coming into effect later this year.

“Organisers need to be developing a right to disconnect policy, and that’s really setting out within our organisations what are your expectations for your hours of work,” she says.

“In the legal profession that’s an opportunity for senior leaders in the legal profession to say we don’t expect people to be answering emails after 6pm at night.”

Policy clarity is important because “that gives the employee that clarity and the ability to then enforce the right through the Fair Work Commission in particular if the policy is not being upheld in the organisation”.

Clauses in executive performance agreements on managing work hours can also help.

“What gets managed gets done,” Queenan says. “Often (in) executive performance agreements you can look at inserting KPIs and actually holding managers accountable if they have teams that are highly burnt out, and potentially costing the organisation significant amounts of money with workers compensation claims and the likes.

“From our perspective it’s about really holding senior leaders accountable for managing their employees work hours in a way that protects their health and safety.”

Kate Galloway, a property lawyer and Dean of the Thomas More Law School at the Australian Catholic University is less upbeat about the potential of the right to disconnect.

Galloway’s opinion is that there are long-running cultural problems around working hours in the legal industry, such as presenteeism, that are unlikely to be fixed via the new law.

It’s big law firms where overwork is often most ingrained, she says, describing the status quo as a “don’t ask don’t tell” situation in many cases.

“Based on what I’m told by a lot of junior lawyers who go in there is that they have constraints around working after 6pm, so they already have strategies to stop their grad lawyers, their junior staff, from working late unless they have partner permission,” she says.

“But what happens is there is a tacit understanding that you will stay to get the work done regardless.

“You can have a right to disconnect and you can have an explicit office policy that says you’re not permitted to work after this time, but those junior lawyers who produce the work that they have to work all of that extra time for are the ones that get rewarded.”

Galloway says there can be a disconnect in law firms between internal policy and that reality on the ground. This is especially the case  in work-heavy and time-sensitive areas like dispute resolution where “they just work crazy hours all the time”.

The academic says, based on anecdotes told to her, a culture of overwork is often quickly taken up by young lawyers at large law firms, and then passed on to new recruits.

“They have the talk from HR and the talk from partners and they say ‘we’re all about work-life balance, you’re not allowed to work after 6pm’”, Galloway tells LSJ.

“Then they get the previous cohort to come in and they say things like ‘my time is really precious to me so I make sure that on Thursday nights when I play netball so that I can leave the office at 7pm on the dot I make sure that I work late on Monday Tuesday and Wednesday and I’m only in on a Saturday afternoon.

“Until that culture changes, until the law firms themselves withhold rewards for those who work after hours and keep coming in and don’t stop, it’s going to continue.”

She says there needs to be a mindset shift that starts when lawyers are still at university. According to the academic, this should start with a paradigm shift around law’s purpose.

“I’m not saying lawyers shouldn’t be able to make money we have to earn a living and I’m also not saying that lawyers shouldn’t be remunerated for risk, but we have to get back to what we are as a profession, and that is not a business, it’s actually serving the interests of justice,” she says. “We can remember that people come first.”

Addressing a global problem

Australia is not the only country where lawyers are working themselves to exhaustion.

In the UK, some lawyers are clocking up over 12 hours a day at the desk and don’t log off before 10pm, according to UK legal news site Legal Cheek’s annual survey of working hours

Across the Atlantic, many US lawyers work even longer than their UK counterparts, with billable hour targets often reportedly sitting between 1,700 and 2,300 hours per year.

Globally, female lawyers are those most overworked. Women put in around 100 more hours annually than men, while younger lawyers in work the greatest number of hours and those over the age of 60 work the fewest, according to Thomson Reuters Institute research.

Burnout has a global reach, with the international Bar Association, a body that represents around 80,000 lawyers,  finding two-thirds of legal professionals worldwide have experienced burnout at some point in their careers.

Mike Schmidt, managing partner at major US law firm The Schmidt Firm urges the Australian legal profession to take action on the issue before it hits North American levels.

Schmidt stresses the importance of de-linking longer work hours from “superior outcomes”.

“In fact, there’s a risk of burnout and diminishing efficiency when attorneys are stretched too thin. Therefore, a paradigm shift within law firms is necessary, urging a departure from the conventional belief that longer hours equate to better results,” Schmidt tells LSJ.
Like Queenan, he suggests strong internal policies governing work hours and billing.

Culture is also important, he says, particularly “establishing reasonable expectations for billable hours and encouraging lawyers to take regular breaks and vacations are essential”.

“Moreover, offering flexibility in work schedules can be transformative, enabling attorneys to manage their time more efficiently and fulfil personal commitments outside of work.

“By emphasizing a balance between professional and personal life, firms can contribute to a healthier and more sustainable working environment.”

Setting up support systems for lawyers who feel overworked can also assist, he says.

“When attorneys feel supported by their colleagues and supervisors, they are more likely to feel comfortable discussing workload concerns and seeking help when needed. This can help prevent individuals from feeling overwhelmed and burning out,” Schmidt explains.

“Additionally, promoting open communication and transparency regarding workload expectations can help ensure that attorneys have the resources and support they need to effectively manage their time and responsibilities.”