By Richard Collier, Newcastle University
This blog presents thoughts, necessarily tentative, on how Covid-19 may be reshaping the terrain around wellbeing in the legal profession and university law schools.
Lawyer wellbeing and the broader field of legal wellness studies has become, in recent years, the subject of a distinctive strand of legal scholarship; the focus of books and articles, special issues of journals, research reports and numerous data sets, with several major studies already under way or planned in relation to the UK legal community. A multitude of workshops, conferences and events have been held on the topic, including on the part of the SLSA. The recent formation in 2020 of the Advancing Wellness in Law Network, created to promote wellness within legal education and the legal profession and bring together stakeholders, is indicative of how this agenda is evolving. In short, a substantial research base suggests that, in the UK as well as internationally, significant problems exist around wellbeing and mental health for many lawyers, law students and, increasingly the focus of research, legal academics.
There is no one ‘wellbeing problem’ in the law and for all the concerns shared across the legal community, for example around tackling mental health stigma, it is not possible to extrapolate across legal practice or jurisdictions with regard to responses to Covid-19. Nonetheless, within the numerous webinars, blogs and online discussions seeking to explore the impact of the pandemic on the legal profession since lockdown in March 2020 a central narrative has emerged. Covid-19 is not just exacerbating tensions and accelerating trends around wellbeing already there; it is prompting a broader discussion about, on the one hand, opportunities for positive change in the legal community; and, on the other, concerns about the implications of the pandemic for individual wellbeing, mental health and social divisions and inequalities.
Opportunities: embracing a ‘new normal’?
There are different dimensions to the claim that, from a wellbeing perspective, the pandemic may provide an opportunity for the legal community to reinvent itself in positive ways. We see arguments, for example, that;
- a rethinking of attitudes to flexible and home working may follow the upending of traditional working patterns, after mass remote working became default for so many; a development with psychological benefits for many and wider implications for society, for gender equality, the environment, sustainability and quality of life;
- that the pandemic may lead to a greater openness about emotion in the law and our attitudes towards expressing vulnerabilities and anxieties; a shift that may, in time, change the culture around mental health; how the wholesale adoption of Zoom, Teams and so on is refiguring understandings of public/private, presentation of the self and, indeed, the very meaning of ‘professionalism’.
- that if the legal community can be so highly responsive in this short space of time, this shows not only resilience of individuals and organisations but the adaptability of the profession as a whole; if all this can happen, are the kinds of changes many of us would advocate in advancing a wellbeing agenda really so unimaginable? Is it essential to go back to old ways, even if it were possible?.
A rather different reading, however, suggests something else is happening.
Dangers: Covid-19 – a new paradigm around wellbeing and mental health in the law?
Aligned to evidence of poor wellbeing on the part of many legal professionals, and against the backdrop of what has been described as the ‘crisis’ of mental health across Higher Education institutions, UK university law schools have experienced growing concern about law student wellbeing. The expanding field of Critical University Studies, meanwhile, has prompted a new focus on academic wellbeing amidst suggestions of an epidemic of poor mental health among university staff.
If this was already the landscape of a debate about wellbeing and mental health prior to 2020, four factors suggest it is possible lawyers, legal academics and law students alike may each, in different ways, be facing new challenges, as well as opportunities, around wellbeing across a multitude of areas.
Health, security and loss
The events of the past six months raise fundamental questions about subjective experiences of health and security, on the part of the self, family, friends and wider community; for many, dealing with multiple dimensions of grief, whether through bereavement or loss of contact, emotional and physical, with loved ones and wider social connections. Maslow’s hierarchy of needs is frequently cited in the legal wellness literature (in the context of Covid-19 see, for example, Thriving in Law: Supporting Employee Wellbeing During the Pandemic). At a time when much legal wellness literature is focusing on issues of self-actualisation, esteem, imposter syndrome, recognition, belonging and so on, however, the pandemic has meant we have been, and remain, in the territory of more existential concerns around, precisely, safety, employment, security, health.
Mental health and covid-19
Since March 2020 a succession of studies from diverse sources, including ONS data, suggest significant numbers of people with no previous history of mental illness are developing psychological problems as a result of the pandemic; that depression in the UK has doubled since lockdown and that the NHS is experiencing a marked rise in people reporting mental health difficulties. This is not a diagnosis, but it is an indicator of what would appear to be a scale of everyday depressive feelings and behaviours. There is no reason to think a legal community already struggling with wellbeing issues are somehow immune, with research predicting employers across all sectors may be faced with ongoing instances of poor mental wellbeing and anxiety within the workplace over the coming year.
Employment, new technologies and public health
In the legal profession, far from a brave new world of flexibility and enhanced wellbeing, as lockdown eases concerns are being raised about the transition from furlough to redundancies or part time work. In August 2020 the Justice Committeewarned MPs about 60 per cent of high street solicitors fear going out of business as a result of the pandemic, with legal advice centres and the not for profit sector especially affected. In July the Bar Council’s Whole Bar Survey sets out the “profound and acute impact on an already stretched justice system” of the pandemic, with publicly funded barristers, the most socially diverse part of the Bar, “hit very hard”.
In universities and their law schools, meanwhile, a cursory look at the current landscape of Higher Education in the UK and events of the past month reveals widespread concern across the sector about issues of workload, restructurings of the working day, financial restraints and in some institutions, redundancies and potential closures. This is the backdrop against which any future research on legal academic wellbeing will be framed. For some law students, a generation who before the age of 30 will have experienced two recessions and a pandemic, it is also not difficult to understand why there is cause for concern. Previous research has charted the scale of problems faced by many junior lawyers, generational changes in wellbeing and mental health literacy on the part of millennial lawyers, and how the process of qualifying as a lawyer and of legal education can be, for some, highly anxiety inducing. The embedding of new ways of communicating as a result of the pandemic, however, raises issues that connect to wider questions about emotion, social inclusion and public health.
For some lawyers, legal academics and students personal circumstances can mean a move to online communication is uniquely transformative and positive (those with caring obligations, who live off campus for example). Both the legal profession and universities are now seeking to address digital wellbeing and the digital competencies of students and staff. The affective dimensions of these changes are just beginning to be explored in work on tele-proximity, transmedia identity management, digital overload, Zoom fatigue and so forth.
The public health dimensions of this transition from lockdown, however, an issue at the time of writing leading news headlines across the UK, is pervaded by significant anxieties; questions about the health implications of mass migration of students; issues of campus safety, contact tracing and community transmission, face to face teaching, social distancing, face coverings and a myriad of related concerns (and exacerbated by recent experience in other countries). Simon Marginson has written of Covid-19 and the questions it raises about a market model of higher education; how ‘something has to give, and it won’t be the pandemic’; how such a model is being expected to operate more or less as normal in this highly abnormal time, producing the uneasy tensions we are now seeing between financial sustainability, public health and welfare. These developments place those seeking to manage and work with such change, and ‘look after’ their own personal wellbeing and that of others, in a particularly invidious position.
Equality Diversity and Inclusion
Seeing wellbeing as a social and not simply a professional problem raises further concerns about whether Covid-19 is exacerbating existing inequalities. An extensive body of work is now tracking how the intersections of gender, race, ethnicity, health and socio-economic background can shape both susceptibility to and experiences of Covid-19 within specific communities. In May 2020 a survey by the team behind the First 100 Years project, for example, suggests the pandemic may be having a disproportionate mental health impact on women lawyers. The upending of traditional working lives in law during the pandemic has revealed deep fault-lines around issues of care of the young and the elderly, important, and difficult, questions about who assumes responsibility for the preponderance of housework and caring. In academia, we are seeing calls to ‘step off the treadmill’ and recognise that not all academics are in a position to ‘churn out endless papers during lockdowns, nor should’.
Looking beyond the as yet unknown economic fallout of the pandemic, this reading of developments since March 2020 supports the argument of Emma Jones in her book Emotions in the Law School (2019) with regard to the legal community’s historical engagement (or lack of it) with emotion. The cognitive dissonance involved in maintaining a traditional professional ideal of the unemotional lawyer or, indeed, legal academic, becomes even harder to hold in place in the context of a global pandemic and the kinds and scale of anxieties discussed above. The emotional labour the pandemic has entailed for so many of us, and which is ongoing, is significant not just in the context of self-care, calls to prioritise emotional wellbeing and so on. In responding to Covid-19 it is essential that the legal community as a whole think afresh about ways of working that might embed emotional wellbeing as part of our everyday lives; not simply as a matter of enhancing productivity and ‘working better’ but as an ethical issue. Covid-19, I suggest, constitutes a potential paradigm shift that will reshape, in complex and unpredictable ways, the terrain of wellbeing in law for some time to come.
Richard Collier is currently completing the book Wellbeing, Law And Society for Cambridge University Press and has been involved in a range of wellbeing projects in the legal community.