Well-being

Hampshire Law Society Mental Health, Stress & Well-being Survey 2020

It is no surprise to those that work within the legal profession that it is generally considered and found to be one of the most stressful working environments. The HILS Committee have been investigating ways in which we can assist and support our members in this area. A key part of our approach is to understand to what extent the profession in our area reflects the national picture.

The Junior Lawyers Division over the last few years have been identifying issues around negative stress and mental ill-health amongst their members, and their annual survey has become something of a benchmark for the profession across the country. We want to reach out to our members and take a similar survey allowing us to compare our wellbeing with that of the profession nationally. The survey is only as useful and powerful as the number of responses and the amount of member engagement we get. We must remember that any responses received are those of our own friends, colleagues, employers and employees.

A similar survey from Bournemouth Law Society shows that 88% of those that responded (which was a significant number) have experienced stress, defined as being under too much emotional or mental pressure. Nearly one in five felt physical symptoms including feeling physically sick and or chest pains. Most worryingly of all, 2% of those that responded to the survey had experienced suicidal thoughts.

There is some really useful feedback in the responses and more than half of those that responded were aware that their firm offered help, guidance and support in relation to mental health at work. Firms are taking specific steps such as offering confidential counselling, “buddy” systems and appointing mental health first aiders. Nevertheless, and perhaps unsurprisingly, the majority (60%) still feel that their firm could do more. This is not, after all, a problem that can simply be “cured”. As a representative society, your committee are firmly of the view that we can also do more. It is our hope that the very act of carrying out the survey and publishing the results will create positive conversation on the subject and continue the campaign to destigmatise mental health issues.

Please look out for the survey which will be with you shortly – we appreciate your help in completing this. ■

Overwhelmed? Mind racing? Can’t sleep?

Life in the law can be challenging and sometimes things can get on top of you. Talk to us – we’ve been there.

LawCare is an independent charity offering emotional support, information and training to the legal community in the UK and Ireland. We work to promote good mental health and wellbeing in legal workplaces and drive change in education, training and practice. We’ve been supporting legal professionals for over 20 years and no-one knows lawyers like we do.

Our free and confidential support service offers a safe place to talk without judgement. We’re here to help, with helpline calls, emails and webchats answered in confidence by trained staff and volunteers who have first-hand experience of working in the law. We also have a network of peer supporters, people who work in the legal profession who may have been through difficult times themselves and can offer one-to-one support, friendship and mentoring to helpline callers referred to them.

We have visited hundreds of legal workplaces over the years and we have listened to thousands of legal professionals tell us about the stress, anxiety and depression they are experiencing, which is often caused or exacerbated by a difficult working environment. Lack of support or supervision, an overly critical manager, being undermined after a career break, an unreasonably heavy workload, long hours and sleep deprivation are all very common issues.

Whether you’re a barrister feeling burnt out, a young trainee experiencing sexual harassment, a student struggling with the workload, support staff worrying about a mistake you’ve made, a senior lawyer feeling like you’re being pushed out – we’re here to listen.

We are here to help all branches of the legal profession: solicitors, barristers, barrister’s clerks, judges, legal executives, paralegals, trade mark attorneys, patent agents, costs lawyers and their staff and families. ■

18 For more information on what LawCare does, how we can support you in creating a mentally healthy workplace and for additional information, resources, fact sheets visit www.lawcare.org.uk

Difficult lawyerclient relationships

The lawyer-client relationship can be complex. The lawyer is there to listen, empathise and advise. Some lawyer-client relationships can be fairly straightforward such as purchase or sale of a property, making of a will or reviewing terms and conditions. However, some clients may be facing loss of liberty, employment, relationships or reputation. These are clients you may think about a lot, who require a lot of time on the phone or email, you may start to worry about them and they can sometimes become a burden.

A client like this is often looking for more than just a lawyer – and lawyers can often play the role of teacher, counsellor, doctor, parent, psychiatrist, Samaritan, or even magician! The bottom line is the client wants to be fixed legally and, although they may not know it, emotionally. Part one is your job, part two is not but it can be difficult to step back. Why? Because to be a good lawyer you do to a certain extent have to ‘crawl around in your client’s skin for a while and see the world through their eyes’. (Atticus Finch, in To Kill a Mocking Bird).

The good news is this is a common dilemma; the bad news is that legal training leaves the lawyer ill-prepared. Here are a few tips:

■ Before you meet the client prepare. Visualise the client in your mind. Spend a few minutes putting on your imaginary armour reminding yourself that you have boundaries. ■ If you are concerned a client may become aggressive or difficult make sure there is someone else around and that they know you anticipate a potentially tough time. Sit near the door. ■ Have some stock phrases rehearsed in your mind: –“I’m sorry I really can see how angry, sad, scared you are…I will do what I can for you as your lawyer but I am just not able to help with….” “I wonder if you have thought about seeing your GP, ringing someone?” –“I wonder do you have anyone you can call when you feel like this?” –If the client gets very upset, angry or overwrought give them breathing space.“I can see this is really tough, do you want to take a few minutes?” “ Would you like a glass of water?” ■ Give them the Samaritans number or any others that you think might be useful. Don’t give them your personal mobile. ■ Sometimes just stay silent and give them the space to rage, weep or have their moan. ■ Try to finish by summarising what you have heard and what you plan to do next.

The greatest gift you can give another human being is the purity of your attention. Never forget that you are there to listen, extract what will help the client in legal terms and, if necessary, suggest that they seek help from other sources. ■

Our new web-chat service is available online Monday 9.00am–1.00pm, Wednesday 1.00–5.30pm & Friday 9.00am–1.00pm. Visit www.lawcare.org.uk

Domestic Abuse and Child Arrangements Orders

One case has recently caught the interest of legal journalists, that of JH and MF 2020] EWHC 86 (Fam) when Ms Justice Russell lambasted Judge Tolson and decided the judgment was flawed for a multiplicity of reasons.

The Mother had left and fled to a refuge due to the Father’s domestic abuse and it was two years after that the Father applied for a child arrangements order for their 4 year old child.

The Mother’s case was that the Father was aggressive, intimidating and that he was also controlling and emotionally abusive during the relationship. It is her case that she had been subjected to domestic abuse which included verbal abuse and that he had physically and sexually assaulted her while the child was present in their home.

The Judge should have had heed to Practice Direction 12J of the Family Proceedings Rules 2010 which says at part 5:

“The court must, at all stages of the proceedings, and specifically at the First Hearing Dispute Resolution Appointment (‘FHDRA’), consider whether domestic abuse is raised as an issue, either by the parties or by Cafcass , and if so must –

■ identify at the earliest opportunity the factual and welfare issues involved; ■ consider the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms; ■ give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly; ■ ensure that where domestic abuse is admitted or proven, any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and does not expose either of them to the risk of further harm; and ■ ensure that any interim child arrangements order (i.e. considered by the court before determination of the facts, and in the absence of admission) is only made having followed the guidance. ■ In particular, the court must be satisfied that any contact ordered with a parent who has perpetrated domestic abuse does not expose the child and/or other parent to the risk of harm and is in the best interests of the child.”

20 HAMPSHIRE LEGAL Here, this must have been relevant as a finding of fact hearing had been arranged when evidence was to be heard. What is so surprising here is that the Mother was not allowed to give evidence behind screens which she was entitled to request as a vulnerable witness. Instead she had to give evidence from Counsel’s bench where she was sitting near the Father and he then also gave evidence from there where he could discuss matters with his Mackenzie friend, there to assist as he was not legally represented. She must have been terrified and distressed and no wonder the Judge could barely hear her evidence and the tape recording did not record it all.

The case has primarily been reported in the press as the Judge found the Father could not have raped her as she did not physically resist and the Judge seemed to be completely ignorant of the definitions of domestic abuse:

■ “domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality.

■ “coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim

The Appeal Judge agreed the trial Judge failed to apply these definitions, or at the very least, keep them in mind. The Judge did not accept the use of language or throwing objects was controlling and coercive behaviour, which is surprising although many Judges still seem to believe domestic abuse can only be from violence.

The Mother won her appeal against the decision of the Judge that there had not been domestic abuse but now faces the awful prospect of a retrial where she will have to give evidence again. Let’s hope she is allowed to give her evidence from behind a screen or even better, by video link.

Another issue is that unfortunately abusers are seeking to see their children by accusing mothers of parental alienation.

‘Playing the parental alienation card is proving more powerful than any other in silencing the voices of women and children resisting contact with abusive men,’ said former family law barrister Dr Barnett in a recent study.

https://www.independent.co.uk/news/uk/home-news/ domestic-abuse-parental-alienation-family-courts-brunelstudy-a9294726.html

The issue of violence cannot be disregarded, the report states: “A 2016 study by Women’s Aid revealed the cases of 19 children in 12 families who were all intentionally killed by a parent who was also a known perpetrator of domestic abuse. All of the perpetrators were male and fathers to the children they killed and having contact.

The outcome of this report and the case of JH is that there must be better training of Judges to ensure they ascertain the truth and that victims are protected. ■

Wendy Hewstone Managing Partner, Access Law Southampton

THE YEAR 2020

The year is now 2020 and for the first time we need to be particularly careful when using the date! If you would normally write a date as 02/01/20 then you need to think especially carefully about doing so.

As the year ends with a date that is also the start of a century, dates you use in the format above can be altered after the event i.e. 02/01/2000 or 02/01/2014, thus making it appear as though something happened potentially years before it actually did.

Insight Legal becomes a Strategic Partner of The Law Society

Insight Legal Software is delighted to announce that following a period of assessment by the Law Society of England and Wales, it has become one of their strategic partners.

Partnership status means that the Law Society is satisfied that Insight Legal’s software can help law firms with performance and management challenges including compliance, productivity and efficiency. In reaching its decision, the Law Society also considered a number of partnership suitability criteria including cyber-security, equal opportunities/equality & diversity, data protection, GDPR and Corporate Social Responsibility.

Law Society president Simon Davis said: “I am pleased with our new partnership with Insight Legal – a leader in practice management software for solicitors. Their in-depth knowledge of the legal profession allows our members to benefit from their award-winning legal accounts, case management and practice management solutions”.

Brian Welsh, CEO of Insight Legal said: “Confirmation of this partnership is fantastic news and is a reward for the hard work and talent within our business. We have always tried to develop our software, and support our law firm clients in a way consistent with their best interests and also with our own Core Values. It is good for law firms in England & Wales that they are able to gain access to The Law Society Strategic Partners in market segments that are critical to effective functioning, including Practice Management”. ■

All someone needs to do is add some additional numbers to the end of the original date and it appears as though the date is completely different. To combat this always ensure that you write the date out in full this year on anything that you have to complete, that way it cannot be altered easily.

Always write the complete year as 2020 so that nobody can change what was intended. Please think about this, particularly when signing and dating anything of importance! ■

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Solicitors: are you ready for the changes to the SRA’s Code of Conduct?

On 25 November 2019 the Code of Conduct in the SRA Handbook 2011 (the Code of Conduct 2011) will be replaced with two new codes of conduct – one for solicitors and one for regulated firms. Are you ready?

In this article, James Robins and Ivan Roots of Womble Bond Dickinson’s professional risks team take a high level look at the changes being implemented and the impact upon solicitors.

The Changes

The 2011 Handbook is being replaced by the 2019 Handbook and the 10 mandatory principles have been cut down to 7 principles.

Legal professionals must act:

■ in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice ■ in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons ■ with independence ■ with honesty ■ with integrity ■ in a way that encourages equality, diversity and inclusion ■ in the best interests of each client

In broad terms, the aim of the changes is a drive towards ethics based principles of practice, rather than adhering to a full set of black and white rules. The focus is now very much upon the behaviour of the individual, including a personal obligation to report breaches; the rules send a strong message that the solicitor will be personally accountable for any breaches.

What does this mean for you?

Solicitors will need to:

■ Review the 2019 Handbook (note that the current version on the SRA website is not final and may change before 25 November 2019). ■ Read the SRA enforcement strategy and linked ‘topic guides’ for a summary of the main mitigating and aggravating factors the SRA will take into account when considering cases. ■ Understand the personal obligation to report: –Solicitors must report a reasonable belief that there has been a ‘serious breach of the standards’ by your own behaviour, or that of other solicitors you work or deal with. –The obligation to report extends to other legal services regulators such as CILEX. –Reports must be made promptly – early engagement with the SRA is key. –Document anything which involves personal judgment, such as a decision not to report, or the timing of any report made, so that this can be justified to the SRA if necessary. ■ Read your firm’s social media policy. Be alive to issues such as client confidentiality when using social media. Firms and In-house legal teams should:

■ Review internal policies and procedures, in particular whistleblowing and reporting breaches policies, so that they reflect the SRA’s enforcement strategy and the new obligation to report ’serious breaches’. ■ Ensure that members of the in-house legal teams are aware of their personal obligations in the new Handbook, the reporting expectations and the reporting procedure.

Comment

The SRA has confirmed that the 2019 Handbook is designed to be more flexible, allowing “solicitors greater flexibility in how they work – making it easier for people to get help”.

However, with this flexibility comes increased risk as the focus by the SRA on the conduct of solicitors outside work as well as in practice will inevitably lead to an increase in prosecutions. There is a pattern of the SRA taking an extremely tough approach, with little room for second chances. In 2018 alone, the SDT ordered that 80 solicitors be struck off the roll. Indeed, the SRA is expecting a sharp increase in the number of cases referred to it in 2020, with the new requirement to report a ‘reasonable belief’ that there has been a serious breach.

The SRA is also anticipating a shift in the nature of cases being brought, with an expected increase in the number of sexual misconduct cases, those relating to the use of social media and cases concerning conduct outside of the professional arena. Indeed, disciplinary decisions handed down since the SRA’s August 2017 Warning Notice illustrate the stance the SRA is likely to take in response to a perceived ‘threat’ to the solicitors’ brand. For example, disciplinary action has been taken against solicitors for posting offensive anti-Semitic comments on Facebook, assaulting paramedics while intoxicated and posting ‘puerile’ comments on social media about cases being worked on.

Firms and individual solicitors can expect increased scrutiny, and more active engagement with the SRA. Those who fail to prepare for these changes are at risk of disciplinary action and unwelcome and damaging publicity. ■

James Robins & Ivan Roots Womble Bond Dickinson