Recent years have witnessed a growing concern internationally in wellbeing and mental health in the legal community. Far from being the legal profession’s ‘hidden secret’ there is now an extensive and rapidly expanding literature on lawyer wellbeing, with the findings of the 2019 Junior Lawyers Division (JLD) Resilience and Wellbeing Survey painting a particularly troubling picture of the levels of negative stress and mental ill-health experienced by junior lawyers. At the same time there is increasing concern around the wellbeing and mental health of university law students and, indeed, law teachers, set against the backdrop of substantial evidence of poor mental health across the UK university sector.

Drawing on projects funded by a Leverhulme Trust and the mental health charity Anxiety UK (AUK) conducted at Newcastle University this short discussion seeks to look at these debates in a rather different way and consider some issues, themes and questions that, on closer examination, ‘connect up’ these conversations taking place in the UK about wellbeing in the law.

The importance of legal contexts: Some similarities … and differences

There is much evidence that significant problems exist around wellbeing for many lawyers who appear to be ‘surviving but not thriving’. The past three years or so, in particular, has seen extensive discussion and an array of policy developments and practical initiatives introduced across the legal profession seeking to better understand, and address, practices and cultures that exacerbate these problems.

Lawyer wellbeing is firmly on the agenda at the forthcoming Future of Legal Education and Training Conference 2019 and this is a debate I will raise important questions about a range of issues; for example, about

• Emotional competence in law practice, how best to ensure individuals are ‘fit For law’, with implications for UK regulators such as the Bar Standards Board and Solicitors Regulation Authority (here noting recent cases before the Solicitors Disciplinary Tribunal);

• The place of emotion in the traditional university law degree, what it means to learn to ‘think like a lawyer’, and how wellbeing might be better embedded within legal education and training (the issue of ‘prehab’ as Angus Lyon has put it in his 2015 book A Lawyer’s Guide to Wellbeing and Managing Stress — what happens before practice); and

• The nature of the transition from legal education and training to a career as a lawyer, with work by the City Mental Health Alliance (CMHA) and Student Minds providing a good illustration of how wellbeing and mental health agendas can be central to ensuring lawyers ‘thrive from the start’.

In both legal practice and education and training we find a shared concern to “promote better mental health and wellbeing in the legal community” and, in the words of the 2018 Mindful Business Charter, address how “we have a responsibility to try and do things differently”.

It is not, however, possible to generalise about the causes and consequences of lawyer distress. There is no one ‘wellbeing problem’ within the legal community. The wellbeing concerns of the corporate lawyer, ‘high street’ and sole practitioner, barrister, law centre and legal aid solicitor, for example, are by no means the same; nor, importantly, are the resources and structures that are increasingly being put in place to support lawyer wellbeing, with marked differences between large and small organisations. Factors seen as contributing to poor lawyer wellbeing differ across areas of practice, law firms and at the bar, and do not easily translate to the experiences of law students or legal academics. The pressures associated with client demands, concerns around vicarious trauma and, in particular, the impact of the organisation and form of billing of much legal work, the focus of especial concern, are more acute in some areas of law than others.

Importantly, and an issue often overlooked, our experiences of ‘legal life’ are mediated by diverse factors such as age, life course and stage of career, with research suggesting particular problems are being faced by junior lawyers and paralegals navigating the often tortuous (and, the AUK study suggests, anxiety inducing) route to qualification; that questions of social class, gender, race and ethnicity, sexuality, disability and health can each shape how wellbeing is understood at particular moments in a career and in specific workplace contexts. Research points to gendered differences in men’s and women’s experiences of — and willingness to speak about — poor mental health in the workplace; and that this is a wellbeing agenda in law driven to a significant, if by no means exclusive, degree by women lawyers in ways interlinked, 100 years on from the entry of women into the legal profession, to broader concerns about equality, diversity and inclusion.

Yet, digging deeper, core themes do tend to recur; the prevalence across the legal community of a pervasive cultural stigma around disclosure of mental health problems; concern about the highly competitive culture of law, poor work-life balance and, for many lawyers, long hours; the ‘personality attributes’ and characteristics of those who enter and teach law, involving ideas about a profession replete with ‘insecure overachievers’, widespread ‘imposter syndrome’ and tendencies towards perfectionism; concerns about a lack of line-manager training in dealing with mental health matters when they do arise; for some lawyers, the impact of corrosive and uncivil workplace cultures, bullying, discrimination and harassment; and, more generally, a broader sense of what Richard Martin describes in his 2018 book This Too Will Pass as the experience of living with “anxiety in a professional world”.

This and other autobiographical accounts, such as that by Lloyd Rees recently published on Legal Cheek, detail with openness diverse experiences of anxiety, exhaustion, unhappiness, overload, insomnia, shame, guilt, hurt, worthlessness yet also something else; at the same time, a recognition of the intrinsic joys, rewards, pleasures and challenges of a career as a lawyer and how high levels of job stress can coincide with high levels of job satisfaction. It is important that these ‘upsides’ of a career in law, the profession’s role as a route to social mobility and numerous instances of collegiality, support and kindness in practice, are not lost in discussing law’s wellbeing problem.

At the same time, however, there remains a view on the part of some that this is just ‘how things are’ and that the ‘bottom line’ of financialisation and client satisfaction will ensure there are limits to how far this wellbeing agenda can be pushed; a degree of acceptance that the ‘package deal’ of being a lawyer will itself involve working practices that can be harmful to health. And therein lies the problem.

What to do? Some questions on the problem of wellbeing in the legal profession

There is a need for caution and to reflect on what we mean by ‘wellbeing’ in the first place. Concerns have been raised by some in the legal community, for example, about how this is at times a discussion all too often focused on encouraging the individual lawyer, law student or law teacher to ‘do something’ about their own wellbeing; how this can then frame the responsibility to tackle these issues at the level of the individual and not, say, the structures, cultures and working practices productive of experiences of poor lawyer wellbeing in the first place.

This raises troubling questions about how the ‘good lawyer’ is often positioned as someone who will, or should, respond to seemingly ever greater work demands, to time-pressures, billing targets, the impact of new technologies and so on, by better attending to their own personal wellbeing — by becoming resilient. The problem is that this can easily mask the long-term consequences of working at a level of ‘peak performance’ that these cultures bring about in people (as these recent accounts of poor wellbeing testify); how far from seeing resilience as something called upon in exceptional circumstances, it can be seen as a ‘baseline’ requirement in ways that reinforce what are, at the end of the day, still viewed as highly desirable traits in the profession (the ability to work long hours, say, to work without apparent caring commitments, or to be ‘careless’, to see oneself, and be seen by others, as a competitive individual).

What we are seeing in both legal practice, notably but not exclusively the larger corporate commercial firms, and university law schools alike, is a debate often focused on the introduction of, say, online cognitive behavioural therapy (CBT) provision, ‘wellbeing weeks’ and days, ‘wellbeing rooms’, yoga and tai chi, self-knowledge, spirituality and mindfulness taster sessions; ‘digital detox’ periods; the provision of five-minute massages and so forth. Each can be important, welcome and positive interventions in and of themselves. The danger, however, is that if wellbeing is seen as a matter best be solved by ‘changing the self’ this can slide troublingly into self-blame and, with it, a furthering of distress. It can also serve to legitimate in the legal profession a focus on cosmetic and superficial answers, on ‘ticking the box’, rather than bringing about more substantive change; ‘how is your law firm doing on wellbeing? See our new league table’.

Finally, it is important to note the deeper significance of this debate. Underscoring these discussions are questions about how the legal community responds to evidence of a far greater awareness of the complex interactions between mental health and the workplace; of the need to work in more effective, efficient and safer ways; and, looking to generational shifts in attitudes, of the greater willingness of millennials to be open about mental health issues, a theme reflected in the recent JLD surveys and the discussions taking place amongst many younger members of the legal community, in legal practice and in law schools.

Central to this wellbeing debate are ultimately questions about the future of the profession itself, recruitment, retention, the nature of a career in law and understanding what it means to be a lawyer. It is a discussion taking place against the backdrop of wider public conversations about mental health and the emergence of an entire wellbeing industry. In the context of an evolving global marketplace for legal services in which the very idea of ‘wellbeing’ has become an increasingly important part of what it now means to be a good employer and provide a first-class service to clients, this suggests wellbeing is an issue that will not ‘go away’ any time soon.

Much has changed. No so very long ago, wellbeing and mental health in the law was a topic all too often silenced from the formal spaces of discussion. The profession has moved on in many positive ways, as the growth of training as a mental health first aider (MHFA), use of role models and ‘wellbeing champions’, the expanded provision of advice and support via ‘wellbeing portals’ and the wellbeing work of the JLD, LawCare, Bar Council, SRA, the Taskforce and many others bodies and initiatives illustrate. The danger remains, however, that for all recent welcome interventions the perception ‘on the ground’ may be of a disconnect between a genuine and well-meaning commitment to improving lawyer wellbeing and the systemic causes of their distress; and that the very welcome initiatives introduced within the law’s wellbeing turn will be seen by many lawyers, at the end of the day, as little more than sticking plasters.

Richard Collier is a professor of law and social theory at Newcastle University. He will be speaking during the afternoon session, ‘Mental health, wellbeing and resilience’ at the Future of Legal Education and Training Conference 2019 on Wednesday 22 May. General release tickets are available to purchase.

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The debate surrounding the Solicitors Qualifying Examination (SQE) has moved beyond the ‘Will it actually happen?’ stage towards questions about implementation. There’s no avoiding it, folks.

Preparations are underway at law firms and law schools across the country for the exam which will replace traditional routes to qualification. The Legal Practice Course (LPC) and the Graduate Diploma in Law (GDL) are toast once it comes into force in September 2021.

It’s an exciting time for Solicitors Regulation Authority (SRA) education and training chief Julie Brannan, the brains behind the SQE and spearhead of the biggest shake-up of legal education in a generation. “We’re dealing with lots of practical questions to ensure the detail is right. There is a lot of preparation going on which I am very pleased to see,” she told me in an interview ahead of her appearance at the Future of Legal Education and Training Conference in May, for which Early Bird ticket sales close at midnight tonight.

For students seeking to enter the legal profession during this time of change, what does it mean?

Although large law firms cover the cost of their future trainees’ GDL and LPC fees, and will continue to do so for the SQE, the majority of students self-fund these courses. Legal Cheek’s LPC Most List shows a student in London can pay northwards of £16,000 for the year-long course required to practise as a solicitor in England & Wales. One of the overriding objectives behind the SQE is to reduce this cost. In November, the SRA projected the two-part exam is likely to cost between £3,000-£4,500. SQE1, which focuses on black letter law is likely to cost between £1,100 and £1,650, and SQE2, which tests practical legal skills such as advocacy, is likely to cost between £1,900 and £2,850.

But these amounts are for the exams only. Preparatory course fees will be on top of that. No one is sure exactly how much they will cost, but when you put both figures together some have suggested that you might be looking at a greater amount than students pay at present for the LPC. So why bother bringing in the SQE at all? they ask.

That’s not an entirely fair proposition. As Brannan points out, the SQE will create lots of different options, and present opportunities for future lawyers to potentially save a lot of money — with new routes including a combined LLB-SQE that some universities are already working on and standalone budget SQE courses.

“There will be a wide range of courses available to students and this will impact cost. The cheapest option is likely to be a law degree with the integrated SQE and that will cost within the £9,000 fee cap which is cheaper than the LPC as it stands,” she explains.

Two tier fears

However, it seems likely that the big corporate law firms — which account for a significant percentage of new trainees entering the profession each year and influence the market because they are seen by students as high status — will design their own bespoke SQE courses in association with existing providers such as BPP Law School and the University of Law that look very similar to the LPC in its present form (and cost the same and perhaps even more!). That would be fine for these firms’ future trainees who are benefitting from law school sponsorship deals, but what about students without training contracts who may feel under pressure to complete these same prep courses because they are seen as market-leading and more likely to lead to a job? On this, Brannan says:

“I think we will see a range of different provision emerging. At the very top-end there may be gold-plated courses designed for the particular needs of City law firms. These firms recruit up to two years in advance and provide funding so it’s up to them how best to prepare their future trainees.”

As for law firms outside this elite bracket, Brannan, who has spent the last few days visiting various outfits across the country, comments: “If you think about the sector as a whole, it may well be the case that different law firms have different requirements — it’s no longer one size fits all.” Many of these firms view the new solicitor training regime as an opportunity to recruit in a different way that could reduce their training costs and allow them access to a more diverse pool of potentially hungrier and more street-smart students. Brannan continues: “The SQE provides the scaffolding for law firms to recruit well-rounded individuals from a wider cohort. It’s a real gain for the profession. Some have already dipped a toe in the water with apprenticeships — they liked what came through the door and are open to exploring new pathways,” she reflects.

But what of the risk of creating a two-tier solicitors’ profession, divided according to whether new entrants did a fancy elite firm SQE or a budget version of the course?

The main way that the SRA is seeking to mitigate this risk is through plans to publish the different SQE providers’ exam results. This would mean prospective SQE students could make purchasing decisions on the basis of provider performance rather than simply perceived status. A new course provider, for example, could be shown to be getting better grades than the long-established law schools. “It’s a very positive thing,” says Brannan, “that degree of transparency will help universities and training providers learn and improve.”

It is probably also fair to say that students’ A-level and undergraduate university grades, and the reputation of the undergraduate university they attended, will — rightly or wrongly — continue to be more influential than where they did the LPC/SQE (and what they scored on it) in graduate recruitment decisions.

New law schools and a roaring illicit trade in course materials?

Where the SQE is likely to have a big impact is in increasing the level of competition among providers, which would over time should contribute to the further driving down of costs. Currently, LPC providers set the assessments and award the qualification. That requires substantial resources and infrastructure. But the SQE will be centrally assessed, with the SRA last year choosing global education giant Kaplan, which closed down its UK law school operations in 2016, to handle exams and marking in an eight-year long deal. This takes away a considerable barrier to entry to the market for new law schools who lack the resources to run assessment processes.

One of the new entrants, for example, is set to be US-based legal education provider BARBRI, whose New York and California Bar prep course are well-known globally. Other players with comparable track records are rumoured to be circling the market with interest. We may also see some start-ups in this space.

Legal Cheek reckons we’ll also be hearing stories from students that have taught themselves. We might even see candidates sharing course materials with their friends post-completion of the SQE. We put this to Brannan and she said:

“The course providers may include a clause on this as part of their contractual arrangements when they sell materials, but this is not something we would regulate. The idea that students could teach themselves the course and all they’ll need is textbooks may be deluded or it may be right. Who can tell? We are providing the opportunity to put that to the test.”

Another aspect of the new super-exam that has sparked controversy is the form it will take. SQE1 will be a computer-based, multiple-choice assessment. Durham Law School dean Thom Brooks, who spoke at last year’s Conference, labelled this as “not the most effective way of discerning ability” as he expressed concern about a new era of “factory-produced” wannabe lawyers being taught to pass standardised assessments. What are Brannan’s thoughts on the proposed exam style?

“We know that MCQs or ‘single best answer’ questions can test the competencies required for SQE1. It is already used for the QLTS and Multistate Bar Examination and used widely in the assessment of medical, dental and pharmacy students. It’s not a cutting-edge form of assessment. When designing the assessment we have to ensure we are using the right methodology. What we are testing is candidates’ ability to take fundamental legal principles and apply them in a practical context — in situations we’d expect a newly-qualified solicitor to encounter, and we can absolutely use MCQs for that purpose.”

Brannan will be headlining the after-lunch SQE discussion at this year’s Conference in May. What are her next steps between now and then? “We’re ploughing ahead with the piloting phase,” she replies. The SRA launched a campaign last year recruiting student ‘guinea pigs’ to test the new exam. “We had a really good response to that,” reveals Brannan. “Kapan ended up with more applicants than we needed which meant we were able to recruit a representative cross-section from those that applied. It shows that students are willing to invest their time to get the exam right,” she says. The pilot for SQE1 will take place between 20-22 March, while Kaplan is planning to pilot SQE2 towards the end of this year.

Will there be a big reveal at the Conference in May? “I suppose there will be an update,” teases Brannan, “it will be an opportunity to discuss next steps with plentiful discussion through a Q&A.”

Julie Brannan will be speaking at Legal Cheek’s Future of Legal Education and Training Conference which takes place on Wednesday 22 May 2019 at Kings Place London. Tickets are available at the early bird rate of £190 + VAT until midnight tonight (Thursday 31 January).

Students interested in attending (we do not charge students for attending our events) should contact us about becoming part of Legal Cheek‘s campus ambassador programme.

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