By Thomas Harban

In this column, the Attorneys Insurance Indemnity Fund (NPC) (AIIF) have sought to raise a number of risk management issues for legal practitioners to consider and have also suggested appropriate measures that could be implemented by firms in order to mitigate or avoid the risks materialising. All these risk management suggestions may be futile if the most important part of the practice is not addressed, namely, the people making up the practice. In a number of jurisdictions internationally studies have been conducted on the level of stress faced by legal practitioners. The AIIF are not aware of a similar study conducted in South Africa. However, one international professional indemnity (PI) insurer has pointed out that as part of their post-claim analysis, a discussion is held with the insured practitioner in order to identify what, in the practitioner’s behaviour, could be changed in order to avoid future claims. It has been indicated that, in many instances, factors outside of the legal practice have been identified as having affected the practitioner concerned to the extent that this led to the practitioner not being able to give the practice the required level of attention resulting in the PI claim. Issues such as debt, divorces, the illness of a loved one, a death in the family and the abuse of alcohol and drugs have been identified as some of the factors, which practitioners report as having affected them at the time that the events giving rise to the claim arose.

The practice of law, by its very nature, can be a very stressful undertaking. There are a host of competing pressures on the legal practitioners, their staff and even their families. These include the challenges of chasing multiple deadlines, ensuring that the practice is financially viable, securing clients and carrying out the mandates received from clients. The often adversarial nature of legal work adds to the stressors. At the end of the day, the people who make up the practice are human beings who have to deal with the stresses of practice, as well as those associated with their lives outside of the law firm. It is trite that these stresses must be acknowledged and managed. Each person will have their own individual tolerance level for stress and some may have adopted certain stress management techniques. The approach adopted by some that ‘stress is a part of the job and nothing can be done about it’ is not helpful.

In planning the firm’s risk management strategy, the risks associated with stress (and all other personnel related risks) should also be taken into account. Have you considered how the firm and its clients will be affected if a key person is unable to function for a significant period due to stress or some other unexpected illness? Do your policies encourage staff to manage their stress levels? Is the culture in the firm one that encourages personnel to work very long hours over extended periods of time? Does the firm culture encourage the attaining of fee targets at all costs (no matter the personal sacrifices involved)? All these factors could add to the ‘pressure cooker’ environment that many people in the profession find themselves in. High stress levels could lead to a lowering of motivation and affect the standard of output produced. This in turn may lead to dissatisfaction by clients and result in PI claims being brought against the firm.

A person facing financial stress may, unfortunately, be tempted to misappropriate funds. If a practice is facing constant financial pressures, the attorney concerned should consider closing the firm rather than continue with an entity that is not commercially viable.

It is not always possible to live the various components of one’s life (the professional and the personal) in silos and to completely isolate the pursuit of practice from everything else that is happening in other areas of life. A legal practitioner or member of the support staff that is ‘snowed under’ by work for extended periods of time could be in potential danger of burn out and of something falling through the proverbial cracks. Similarly, a member of the firm facing stressors from outside of the work environment may not be able to meet the outputs expected of them in the practice.

The symptoms of stress should never be ignored. Legal practitioners must have an awareness of their own stress levels, as well as those of their staff. If, for example, there has been a decline in the quality of work produced, a sudden change in behaviour or some other indication that the person concerned is under an increased amount of stress and is not coping, these should be addressed in a compassionate manner. The person concerned should be assisted in getting the required professional assistance (and encouraged to get the appropriate professional help). There are a number of organisations that offer assistance to people facing stress related or psychological issues. A firm may consider developing an employee wellness programme.

A PI claim brought against a legal practitioner will also result in heightened levels of anxiety and stress. A pending disciplinary inquiry by the provincial law society could have the same effect. In one particular matter notified to the AIIF, the issue was whether the practitioner concerned had taken an instruction from his client on a particular point. In preparation for trial it emerged that the practitioner had very little recollection of the events around the issue. He had been dealing with many professional and personal issues at the time in question and was thus unable to pay the required level of attention to the instruction at hand. This resulted in him breaching his mandate that he received from the client and the latter instituted action against him for the resultant damages. By the time the PI claim was finalised, the practitioner was unable to function due to the many issues he had had to deal with.

Some measures that firms can consider in order to assist with the management of stress include:

• Being a caring employer and adopting a compassionate approach to stresses faced by practitioners and staff.
• Implementing an appropriate support system with stress management techniques and an employee wellness programme.
• Ensuring that there is a manageable workload across the firm.
• Not accepting instructions unless the firm has the appetite, time and capacity to carry out the mandate.
• Properly managing client expectations and avoiding unreasonable demands from clients.

Thomas Harban BA LLB (Wits) is the General Manager of the Attorneys Insurance Indemnity Fund NPC in Centurion.

This article was first published in De Rebus in 2017 (Dec) DR 24.