The growth in professional indemnity (PI) claims against legal practitioners in South Africa (SA) in the last decade has been attributed to several factors, including:
Several measures have been suggested to mitigate the risk of PI claims. The suggested mitigation and risk transfer measures will have little, if any, impact if one other important consideration is not taken into account, namely the psychological well-being of legal practitioners and their staff. At the end of the day, a legal practice is made of human beings and one of the reasons that people take their ‘eye off the ball’, so to speak, is where there are underlying psychological issues they are facing, whether related to the legal practice or not. The often repeated adage that ‘lawyers are meant to think and not feel’ is neither true nor helpful to someone facing psychological challenges. Facing a PI claim or disciplinary action by the LPC could, in itself, have adverse psychological effects on the parties concerned.
Some aspects of this topic were addressed in the article: Thomas Harban ‘Personal stressors and legal practice: Your firm needs a plan’ 2017 (Dec) DR 24. The purpose of the present article is not to cover what was previously published, but to alert legal practitioners to this important risk, which does not always receive the coverage that it deserves.
The stresses of legal practice
Legal practitioners and their staff are, first and foremost, human beings. The stresses and stressors associated with legal practice are well documented. These are compounded by the various other personal factors, which a legal practitioner needs to deal with outside of practising law. The result is that, at one point or another, the competing interests and pressures on a legal practitioner may have a negative effect on the psychological well-being of the legal practitioner (or the member of staff, as the case may be). The need to meet financial targets in order to run a profitable and financially viable legal practice is one potential stressor, particularly in the current challenging economic climate. At times the demands of the professional environment are elevated above the other priorities in the life of the person concerned. In some instances, the effect of the stressors may seem all consuming for the person concerned.
The South African Anxiety and Depression Group (SADAG) puts the level of depression in South Africa at 9,7% (4,5 million) of the population (see www.sadag.org accessed 17-2-2020).
Many legal practitioners have made remarks about the constant ‘pressure-cooker’ type of environment they find themselves in, the fractious nature of practice and the demands that legal practice places on them personally. As with many other professional service industries, chasing the proverbial bottom line, meeting income targets and meeting client needs and expectations in an increasingly competitive world leaves little, if any, time for legal practitioners to take care of their own psychological well-being. The pressures do not affect the legal practitioners alone, but also affect their professional and administrative staff and the family and other relationships they have outside of the practising law. At times the expectation is that the legal practitioner will play a role over and above that of legal adviser and is expected to play the role of mediator or even lay-psychologist to their clients. These result, in many instances, in the legal practitioner taking their eye off the proverbial ball, which can have devastating effects on the legal practitioner concerned and those around them. Many legal practitioners may not have the knowledge and skills to identify the symptoms of a possible psychological breakdown in themselves or in a colleague. The skills required to avoid this are, in the best of times, acquired over time in practice and from the lessons gleaned from human behaviour. Even this will not make a legal practitioner an expert in the assessment of mental health issues.
In some instances, the drastic change in the personality of the person concerned is noted by those around them but no interventions are implemented, and no enquiries made with the affected person of their state of well-being.
Some suggested interventions
One suggestion is to manage your workload and learn to say no in appropriate circumstances, whether to clients or colleagues. IM Hoffman Lewis and Kyrou’s Handy Hints on Legal Practice 2ed (Durban: LexisNexis 2011) at p 423 writes that:
‘In considering the claims statistics published in respect of professional indemnity insurance policies each year or the number of defalcations, which have been committed by lawyers during the past decade, I can only wonder how many of them would have been avoided if the lawyer in question had shaken his or her head and sadly walked away.
The inability to refuse instructions or avoid making outlandish promises is a prime cause of trouble, both in the area of professional negligence and defalcations.’
I agree with the observation made by Ms Hoffman. One of the suggestions I often make to legal practitioners is that before accepting an instruction, they should consider whether they have the skills, appetite, resources and required time to properly attend to the matter. The continuous management of the client’s expectations is an essential aspect of the relationship between the legal practitioner and the client. Accepting an instruction – no matter how lucrative –from a client with unrealistic expectations will most likely end in discontent and possibly a claim against the legal practitioner or even a complaint to the LPC if the unrealistic expectations are not met. The need to say no and to manage the expectations of the client also extends to instances where the initial mandate was to attend to a limited part of a matter, but then there is incremental scope creep and the mandate becomes wider and wider over time as a result of the client’s unilateral expectations.
Ms Hoffman also writes of what she terms ‘professional paralysis’, which is the situation some practitioners find themselves in when they are no longer able to cope with the demands of practice and choose to avoid, rather than deal with, the challenges they are facing. Ms Hoffman describes it as ‘a form of professional breakdown; a bewildering, mind-blurring condition that is illogical, inexplicable and sometimes untreatable’ (p 419). Some of the possible causes are listed at p 420 to 421, as –
The need for intervention
I am not aware of any published South African study on the effect of stress on the profession. I am also not aware of a dedicated confidential reporting line available to the profession for this type of challenge. SADAG is one of a number of organisations that offer a helpline to all members of the public. The unfortunate stigma attached to depression and other psychological challenges are another stumbling block to effectively dealing with these challenges. The silence by some legal practitioners on this subject may be compounded by an unfounded fear that the disclosure of depression or another psychological challenge could be seen as a potential trigger for action being taken against them by the LPC. This is an unhelpful approach as the person concerned may be sinking deeper and deeper into a dark hole with each passing day and becoming a greater risk to themselves, their clients and their families. There is a need to change the attitude and responses to this risk.
In some other jurisdictions, the effects of stress on legal practitioners have been recognised and some regulators have gone so far as to develop diversion programmes for legal practitioners in appropriate circumstances. Other jurisdictions have recognised the effects of psychological and mental illness that may lead to the abuse of drugs (prescription or otherwise) and alcohol. For example, writing on the launch of a diversion programme by the Office of Enrolment and Discipline (OED) of the United States Patent and Trademark Office (USPTO), Michael E McCabe Jr notes that:
‘Several years ago, the [American Bar Association’s (ABA)] Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation commissioned a study of 15 000 attorneys across 19 states. Their research found that between 21% and 36% of lawyers drink at levels consistent with an alcohol use disorder. For comparison, those numbers are roughly [three to five] times higher than the government estimates for alcohol use disorders in the general population. A report summarising the research was published in the Journal of Addiction Medicine in February 2016 … . The ABA-Hazelden report stated: “Compared with other populations, we find the significantly higher prevalence of problematic alcohol use among attorneys to be compelling and suggestive of the need for tailored, profession-informed services’ (www.ipethicslaw.com, accessed 17-2-2020).
The various diversion programmes applied in other jurisdictions each have their own entry requirements and outcomes. The OED diversion rules are modelled on those of the ABA Model Rules for Lawyer Disciplinary Enforcement and state that the misconduct at issue must not –
– ‘involve the misappropriation of funds or dishonesty, deceit, fraud or misrepresentation;
– result in or likely result in substantial prejudice to a client or other person;
– constitute a “serious crime” … ; or
– be part of a pattern of similar misconduct or be of the same nature of misconduct for which the practitioner has been disciplined within the past [five] years’ (uspto.gov, accessed 28-2-2020).
Many of the other diversion programmes have similar requirements. The effect is that diversion is not a path for legal practitioners to avoid criminal or regulatory accountability for serious misconduct but rather a programme aimed at rehabilitation. Only time will tell whether the LPC will consider and develop a diversion programme for appropriate cases in SA.
Some suggestions for legal practitioners
The steps that practitioners could consider implementing in order to address psychological and mental health issues include:
As aptly put by Ms Hoffman, ‘[the] inability of a lawyer to refuse instructions when unable to cope with work on hand is a symptom of a major problem: the failure of lawyers to recognise when it is time to quit’ (p 427).
Conclusion
It is hoped that readers will, to a greater extent, appreciate the importance of mental health issues and take steps to ensure that their own mental health and that of their colleagues is adequately protected.
Thomas Harban BA LLB (Wits) is the General Manager of the Legal Practitioners’ Indemnity Insurance Fund NPC in Centurion.
This article was first published in De Rebus in 2020 (April) DR 4.
