The Legal Profession is in crisis. We all know the data. Mental health issues, drug use, dependencies and addictions including gambling – all rampant in the law and in criminal defence. Sexual harassment by male criminal defence lawyers is a constant epidemic nobody talks about. Except I guess the Toronto Star all of a sudden, which is a revelation.

I’ve spent countless hours with law students lately – for example yesterday and today I will have taught at four different law schools for a total of eight hours as a guest lecturer. I have noticed many trends. The first is that our law students are getting brighter – unquestionably, these students are just brilliant and to me they seem more intellectually curious and emotionally invested, compassionate, sensitive but yet analytical, than generations before them. They are also crippled with stress and anxiety. Not unreasonably, they fear the future – the practice. I have more to say on that in a moment.

For now I want to make the following observation – never in my 32 years at the bar have I seen my colleagues so overwhelmed and hovering at the breaking point – myself included. My defence bar colleagues but also Crowns and others, missing deadlines, missing meetings, failing to diarize commitments, unprepared to proceed, and it’s not just the lawyers – adjudication in my area of law is witnessing a decline in quality and care. Appreciably so. I have never seen so many errors in decisions and reasons that make little to no sense. There is something in the air and it isn’t good. What’s going on?

I am not sure – I have some hunches. And we can do better. We need structural change and food for the soul that’s hungry to excel and do more than put out fires or race around.

Perhaps unexpectedly, what got me thinking these very big thoughts was Ottawa Lawyer Jolene Hansell’s appearance on my dear friend Maya Shukairy’s WiCCD Find Your Niche series here:

I would really encourage everyone to watch this episode. Jolene has a lot of very thoughtful things to say. What I think struck a chord with me was that ultimately she reminds me of me. Not now, necessarily, but 20 years ago when my own children were toddlers. And I never stopped doing all the things that gave my work life meaning. Like me, Jolene here talks about the particular pleasure she gets from teaching courses both within and outside her regular practice area of criminal defence at the uOttawa, for example. And why that enhances, rather than overburdens her existence as a whole human being.

Many of my very successful women colleagues have echoed these same sentiments, among them of course, without meaning to leave anyone out, our rockstars of our bar like Neha Chugh, Cassandra DeMelo, Sarah Rankin, Maya Shukairy, Naomi Sayers, Shira Brass and countless others. WiCCD’s Executive – Amanda Ross, Maija Martin, Breana Vandebeek – our former Exec member, Shaunna Kelly, members at large like Natasha Calvinho, Connie D’Angelo, Kyla Lee and so many more, lead by example. They get involved, they contribute, they find rewarding experiences in different places, initiatives, various ways. What they don’t do is enforce a strict schedule that is mandated for them by those who have decided we must not do more than the bare minimum of anything or else we are failing at life.

I recall being told all the time to slow down and stop taking on extra things that were not absolutely necessary for my day to day file related work. And yet I kept doing speaking engagements, writing, volunteering, teaching and more. Why? Because those are all things I love doing and they’re part of a BALANCE. If all you do all day is the same thing, and you’re jumping from file related process related disaster to disaster, that gets pretty old pretty fast.

Getting bored with your day job doesn’t retain you in the profession. And yet that is all people have time for now, either because they’re overwhelmed by those routine obligations and/or because they feel actually compelled to turn down opportunities for more creative endeavours like writing or publishing, to avoid criticism or censure for “glorifying overwork” or failing at “work-life balance.”

Both these impediments can and should be called out and addressed – structurally, by the profession.

A lot of this wildly popular discourse — the boundary drawing mantra of “work-life” balance is toxic. It is both illusory and for many areas of law, particularly those serving vulnerable clients whose liberty is always at stake, a frank fantasy AND it is ultimately driving talented people away from the law, rather than keeping them in it. This is because the messages are confusing, prescriptive, judgmental, imposing and interventionist where what we need to do is allow people to find their own joy within the profession as well as outside of it, and do what they want, with real meaningful, structural support.

The KIDS are NOT ALRIGHT

There is a massive crisis among our newest generation entering the legal profession. Never before have I seen such high levels of stress, anxiety, depression and consequent inability to function to meet minimum expectations, among this cohort. And this is DESPITE the fact that as I say, they’re unbelievably talented. Megastars in fact.

The entire legal profession is at fault for what’s happening, but it’s not necessarily what you might think has caused this pandemic of inertia and paralysis among our newest colleagues. Yes, previously unhealthy expectations of round-the-clock availability and 80 hour workweeks were causing burnout. Yes, it was important to identify those inhumane conditions often imposed by big firms and in particular, abuses that were rampant in the articling process, exposed by some investigations in the past few years. Also, it is definitely progress to see a concerted effort in the legal profession to de-stigmatize mental health issues and to reduce the fear that law students and young lawyers may have felt about disclosing that they’re struggling. All steps in the right direction, sure.

Where we took a wrong turn is leaving misleading impressions with our students and new lawyers on two fronts.

First, we led them to believe that if they are experiencing anxiety or crippling mental health issues, this is something that the law accommodates in the practice of it, structurally – it doesn’t. Law schools, generally, but especially during and following COVID, have become really good at extending accommodations by way of extensions and extra time, even supports for those with mental health issues. Real life and the real practice of the law are nowhere near there, however. While a particular employer may be empathic and try to find ways to put out fires when there’s a sudden breakdown for example, the courts, judges, colleagues opposite – their expectations do not evaporate. Deadlines continue to be enforced. There is no buffer zone built in for when someone just can’t get their work done. That work has to be done regardless, it just means someone else has to do it. And we have zero regard for how these gaps get filled.

Senior lawyers and supervisors are not free to offer the mental health crisis as an excuse for a failure to file documents overdue to a Court, for example. So that’s problem number one. As mental health issues among this newest generation reach epidemic levels, the entire profession has to sit up and realize – the system is going to bottleneck and then crash because of this and we have to allow for time and space to assist and accommodate – structurally, a generation that is struggling to keep up, literally. According to a recent National Study on Mental Health in the Legal Profession 72% of articling students indicate they are experiencing very high levels of psychological distress. That’s not something we can ignore but yet we are either doing nothing about it, or in my own view, doing all the wrong things.

And here is the second thing we have done that contributes, in my opinion, to the shock and horror articling students are experiencing, and their deep distress. We have sold the next generation a myth and encouraged them to behave in ways that do not bring the reactions they’ve been taught to expect. We have led students and lawyers to believe that they can achieve the coveted “work-life balance” and establish “healthy patterns” by “drawing boundaries” from the moment they graduate law school. They’ve come, not unreasonably based on the constant messaging they’ve received in this regard, to believe that they can practice law 9-5. That if they work hard at making sure they protect their personal time for self-care, this is something for which the profession will congratulate them. Nothing, but nothing, could be further from the truth.  And it’s this disconnect between what they thought could be readily achieved versus what the law’s actual expectations are of lawyers, that is causing or minimally exacerbating the stress, anxiety and ultimately the paralysis we are witnessing on such an astronomical scale at the minute.

But it gets worse. Because we are constantly messaging that they must not do more than is absolutely required of them, students and new lawyers are looking upon opportunities to advance their careers as unnecessary stressors and declining to participate in things that, quite apart from being good for their CVs, might very well be good for them. So they clock in and out not necessarily enjoying their day job and wonder how they’ve come to hate the law so fast. It’s because they’re refusing to do anything fun so long as it’s seen as an extra-curricular. They’re missing out. But it’s because they’re scared because they also want to be seen as protecting their mental health by ensuring they don’t take on things not required of them. In the process though they’ve thrown out the baby with the bathwater. Yes, they’ve learned to say no to restringing the big firm lawyer’s tennis racket – and rightly so – but now they’re declining to participate in teaching opportunities or contributing a paper to a publication.

And we have done nothing to show them the value of what may be enjoyable within the construct of the law, outside of their day jobs. We have simply not considered how to engage them in things that feed their minds and keep them engaged in the profession of the law, without overburdening them elsewhere. Because the system is so flawed overall, that all anyone can do, junior and senior counsel alike, is constantly tread water. I really feel the system is on the brink of collapse if we don’t thoughtfully hit pause and regroup.

As a profession, we have to figure out a way to slow the pace for EVERYONE. To allow judges to have the time they need to make thoughtful, informed decisions, to learn what they need to feel confident in adjudicating in any particular area – same goes for tribunal adjudicators of course. Lawyers have to have breathing space. A five minute break doesn’t let us speak to our client, get instructions and PEE. And we have to build in structural safeguards while we figure out a way to navigate and address in serious, meaningful ways, the fact that a big chunk of our workforce is very often simply unable to work right now.

The administration of justice must build in the space and time to accommodate extensions based solely on mental health triggered complications. At the same time lawyers have to learn to differentiate paralyzing anxiety as a disorder from the ordinary stress of a looming deadline, which we all actually have to learn to tolerate and accept as an expectation of real life. No justice system will ever run as a 9-5 enterprise overall, lawyers and articling students are going to have to work after business hours and sometimes, on weekends. This is the current reality. Let’s acknowledge that honestly first and then figure out how to save a whole generation from souring on the law before they ever really get out of the gate. Brilliant minds want to engage with difficult stuff. Document review 8 hours a day is going to satisfy nobody’s intellectual appetite. If we want lawyers sticking around for a decades long career, we have to show them what about the law is meaningful and figure out ways for them to draw satisfaction from it beyond running from disaster to disaster.

We want our new colleagues to succeed. We want them to feel less stress and distress. I suggest some actually honest, candid conversations that explore how to meet needs rather than dictate how people find their equilibrium. That pressure to “win” at “life” at the expense of the “work” or the “law” is strangling the next generation. It’s making them hate their jobs and ultimately leave the law because it’s what they think they don’t enjoy. We can fix this but we have to be thoughtful and honest about it all.