Top judge calls the billable hour into question

One of the country’s top judges has explored the impact of the billable hour during a moving speech at a lecture on the issue of anxiety and depression in the legal profession

Many young lawyers report the unsatisfying nature of their work in a time-billing environment, and it seems there could be a perceived disconnect between professional values and the experience of practice. 

This is according to the Honourable Justice Virginia Bell AC, Justice of the High Court of Australia, who delivered the 9th annual Tristan Jepson Memorial Lecture last week.

The purpose of the lecture was to put out a call to arms in the legal community about a set of best practice guidelines and their significance in driving change in the profession.

The guidelines were developed earlier this year by the Tristan Jepson Memorial Foundation (TJMF), an organisation set up in memory of Tristan Jepson, a young lawyer and comedian who suffered from severe clinical depression and tragically took his own life in 2004.

The charity’s objective is to decrease work related psychological ill-health in the legal community and to promote workplace psychological health and safety.

Its latest and perhaps most important programme to date has been the initiation of the best practice guidelines that law firms and related workplaces can become signatories of.

They are intended to support lawyers, law firms and others working within the profession to raise awareness of mental health issues, and to understand the initiatives and methods of management that assist in the creation and maintenance of psychologically healthy and supportive workplaces.

During her lecture, Justice Bell revealed that the importance TJMF’s work was brought home to her last weekend upon receiving an email from a friend. He had apologised for the fact he would be unable to attend the lecture, and said he still had the notes he’d take from the annual event a few years ago.

“Then he mentioned that at the time he had been suicidal and that it had taken him more than two years to recover from this difficult period in his life.  He said he was pleased to see that I was supporting the foundation because he thought its work so valuable,” Bell said. 

“He and I are the same age and our careers at the Bar pursued much the same course.  Statistically, the high risk years for the onset of mental illness are the late teens and twenties.  My friend's illness came in the mid-50s and was provoked by a "relatively minor matter" that got out of control.  Throughout our working lives we are all at risk of the disabling experience of depression.” 

In her speech, Bell said the decision to sign up to the TJMF guidelines is a step towards effecting cultural change within an organisation.

She pointed to sexual harassment in the workplace as an example. While it’s  now accepted as a given that the workplace be free from such conduct, in the judge’s early days at the Bar, the notion that it was inappropriate for senior barristers to make sexual comments to women juniors would have been “surprising” to both the barristers and their female juniors.

The same thing must happen with psychological well-being, and the legal profession needs to accept they are obligated to address this problem, she said.

“It is not as though we have been slow to impose high standards on other professions,” Bell said.

In her speech, she highlighted a suggestion by Professor Ian Hickey from the Brain and Mind Research Institute at Sydney University.

He has said that perhaps the reason the incidence of anxiety and depression among young doctors doesn’t compare with that of young lawyers despite their similar workloads could be because the doctors know that their work is “valued and worthwhile”.

“By contrast, many young lawyers report the unsatisfying nature of their work in a time-billing environment.  For many it would seem there is a perceived disconnect between professional values and the experience of practice,” said Bell.

Chief Justice Bathurst is also critical of a culture in which young lawyers are left with the impression that the be-all and end-all of legal practice is the billable hour, Bell said, and he takes his place in a line of Chief Justices who have “doubted the legitimacy of a system that rewards inefficiency with higher remuneration”.

But things are changing slowly.

Bell sees the creation of pro bono practices as having an “incidental but important” by-product by giving young lawyers opportunities to do work that is self-evidently worthwhile and has an obvious connection to the core business of being a legal practitioner. 

“The firms are to be congratulated for their substantial commitment to pro bono work – one which in many cases exceeds the requirements of government tender arrangements for the provision of legal services and in several cases exceeds the National Pro Bono Aspirational Target. The firms are also to be commended for their uptake of the Guidelines,” she said.

And she thinks TJMF gives us another vital vehicle in the fight against anxiety and depression amongst lawyers.

“The work of the Foundation, initially through its research and now through the adoption of the Guidelines, has given us a tangible way of reducing the risk of psychological injury within our profession.  I am pleased to see that it is so well supported by young lawyers across Australia.” 

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