Parker, Christine --- "The 'Moral Panic' over Psychological Wellbeing in the Legal Profession: A Personal or Political Ethical Response?" [2014] UNSWLawJl 40; (2014) 37(3) UNSW Law Journal 1103

THE ‘MORAL PANIC’ OVER PSYCHOLOGICAL

WELLBEING IN THE LEGAL PROFESSION:

A PERSONAL OR POLITICAL ETHICAL RESPONSE?

CHRISTINE PARKER^[*]

I INTRODUCTION

In 2001 positive psychology superstar Martin Seligman co-authored an article entitled ‘Why Lawyers Are Unhappy’,P1514F^[1]P which elegantly and compellingly described disproportionate discontent, disillusionment, depression and drug abuse among American lawyers. In 2005 the article was re-published in Australia,P1515F^[2]P followed by a steady trickle, now a small stream, of research and commentary documenting the unique psychological distress of Australian lawyers and law students,P1516F^[3]P and calling for professional associations, law firms and law schools to do something about it. This is a call that has indeed been heeded and a number of law schools and professional associations have now introduced counselling, mindfulness and wellbeing programmes.P1517F^[4]

Two large scale Australian studies are widely cited as showing the unique prevalence and intensity of clinical levels of depression, anxiety and stress among lawyers and law students, compared with other segments of the Australian population: the Beaton Consulting ‘Annual Professions Survey’ of 2007,P1518F^[5]P and the report of a survey commissioned by the Tristan Jepson Memorial Foundation and conducted by the Brain and Mind Research Institute in 2009.P1519F^[6]P Since then, several Australian scholars have also followed up with their own empirical studies of lawyer and, more commonly, law student depression.P1520F^[7]P

The first Part of this article suggests that the Beaton Study and BMRI Report, and some of the studies that have followed each have methodological limitations that mean that evidence of a unique and alarming wellbeing crisis among lawyers and law students as compared to the rest of the population is not clear cut. All statistical studies are imperfect and produce ambiguous data that require interpretation. In the wellbeing literature, there is a developing consensus that the data can be interpreted to conclude that lawyers and law students suffer disproportionately and acutely from clinical depression that is at least partly caused by the traditional adversarial idea of legal professionalism in practice and education.

The second Part of the article suggests that it is fruitful to see this developing consensus around the statistical reality of the lawyer wellbeing crisis as a ‘moral panic’.P1521F^[8]P Sociologists deploy the notion of a ‘moral panic’ as an analytical tool (not necessarily a pejorative label) in order to uncover the ways in which communities’ responses to uncomfortable social, economic and political change sometimes coalesce around a particular diagnosis and action plan. This article suggests that discussion of a wellbeing crisis is a manageable way for people to make sense of broader concerns, shifts, and indeed moral crises, in the legal profession and the law school. Evidence of serious individual and aggregate psychological distress in the legal profession is creating a powerful discourse to advocate for change.

There is, however, a danger that the wellbeing discourse will be co-opted by powerful interests that seek to confine change to the individual and not the collective social, economic and political levels. The promotion of positive professional identities that include non-adversarial dispute resolution and personal resilience are exciting and important additions to discourses of legal professionalism.P1522F^[9]P There is, however, a risk that the emphasis on diagnosing and resolving psychological distress at the individual level and identifying roles for lawyers as problem-solvers at the collective level will domesticate, depoliticise and defuse profound ethical and socio-political questions. The article concludes that legal educators, scholars, and lawyers should engage our own and our students’ ‘sociological imagination’P1523F^[10]P and critical faculties to connect private experiences of psychological distress with a recognition that legal education and the practice of law is only good when it is pursued for the public good. Shifting social, economic and political relations in society at large and the profession in particular continually demand ongoing collective conversations about the public role of the profession as social trustee of the legal system, guardian of justice, standing at the uncomfortable interstices of conflict and exploitation in a world that continues to perpetuate inequality and to court environmental, economic and social disaster.

II ALARMING STATISTICS

Two studies, the Beaton Study and the BMRI Report, are cited by a suite of practitioners, professional associations, regulators, judges, policy makers and academics to show that Australian lawyers and law students suffer from a unique degree of psychological distress when compared with other occupations and the general population.P1524F^[11]P

Writing about the wellbeing crisis typically begins with statements referring to: ‘the fact that Law Schools are “breeding ground[s] for depression, anxiety and other stress related illnesses” is now widely accepted in Australia and internationally’;P1525F^[12]P and ‘alarming levels of psychological distress experienced by Australian lawyers’.P1526F^[13]P

An academic study from the Australian National University comments that:

[The BMRI Report] hit Australian legal educators hard. No longer could we shrug off law student distress as primarily an American problem. The problem is ours too, facing us every day in our classrooms. We simply can not fail to respond to data showing that 35 per cent of Australian law students suffer from disabling symptoms of depression.P1527F^[14]P

Another academic article cites the comments of Professor Patrick McGorry, Australian of the Year 2010, youth mental health expert and high profile mental health policy advocate, that: ‘Australia is in the midst of a mental health crisis in which sufferers, including lawyers, are being struck down at their peak’.P1528F^[15]

This commentary, discussion and indeed alarm, has also prompted action and the commitment of resources by law schools, legal professional associations, law firms and private foundations.P1529F^[16]P Some of these wellbeing initiatives are long overdue. The professional associations should not have required evidence of a mental health crisis to introduce long overdue programmes such as specialist, confidential counselling services for lawyers, explicit policies for how mental health issues will be treated in disciplinary and regulatory processes, and policies that discourage or prohibit bullying and discrimination. Similarly the notion that law schools might only think to introduce education about non-adversarial dispute resolution or seek to temper hyper-competition and cynicism among law students once confronted by evidence of widespread psychological distress is in itself disturbing.P1530F^[17]P

As the remainder of this Part shows, the evidence that lawyers and law students are facing a disproportionate and alarming mental health crisis compared with other segments of the population, and that this is uniquely caused by the experience of law, is not as clear cut as the statements quoted above might suggest. As the discussion below will show, there certainly is evidence that there is widespread and significant psychological distress among law students and lawyers. Thus this article is not intended to provide ammunition for ‘naysayers’ who might deny the need to be concerned about lawyer and law student wellbeing at all.P1531F^[18]P Nor is it intended to dispute the need for many of the programmes introduced as a result of the wellbeing movement.

This article does suggest that the partial and incomplete data that has been collected is being interpreted in a particular direction that on the one hand provides a good basis for advocating for achievable improvements in legal practice and legal education, yet on the other hand runs the risk of over-individualising and medicalising more serious social, economic and political problems in the legal profession and legal ethics.

Table 1: Australian Studies of Lawyer and Law Student WellbeingP1532F^[19]

A The Reliability and Validity of the Australian Evidence of a Lawyer and Law Student Wellbeing Crisis

Table 1 summarises the findings and methodologies of the Beaton Study, BMRI Report and five subsequent published empirical studies investigating the extent of lawyer and law student wellbeing and psychological distress in Australia.

The Beaton Study and BMRI Report provide the most widely cited statistics about lawyer wellbeing.P1539F^[26]P The Beaton Study reported 15.2 per cent of lawyers with moderate to severe symptoms of depression, compared with 10.5 per cent in other professions in 2006.P1540F^[27]P The BMRI Report in 2009 found higher levels:

31% of solicitors and 19% of barristers suffered from psychological distress severe enough to warrant clinical assessment [and] 62.6% of solicitors and 43.9% of barristers experienced significant (moderate, high or very high) levels of psychological distress, compared with 37.1% of the general population.P1541F^[28]P

The BMRI Report also finds that:

31.3% of solicitors and 21.6% of barristers indicated that they would not seek help for depression [BMRI Report] and lawyers are more likely than other professional groups to use alcohol or drugs to manage feelings of sadness and depression [Beaton Study].P1542F^[29]P

Many studies also rely on the BMRI Report finding that 35.4 per cent of law students suffer from high or very high psychological distress compared with 13 per cent of the general population aged 18–34.

Both the Beaton Study and BMRI Report are flawed methodological tools for investigating the extent of lawyer psychological distress and comparing it with other segments of the Australian population as the remainder of this section demonstrates.

The main purpose of the ‘Annual Professions Survey’ conducted in 2006,

the basis for the Beaton Study, was to collect benchmarking data that

Beaton Consulting would sell to the various professional associations and professional services firms (in law, engineering, accounting and management consulting) which subscribe to their annual survey.P1543F^[30]P These firms and associations pay to join the survey and receive the results for the purposes of receiving feedback on the services they offer their clients or members and how their service compares with other firms and associations. These firms and associations pass on the contact details of their clients and members to Beaton Consulting to survey. The main survey and its data are therefore valuable proprietary information collected from this self-selecting client sample, and much information about the sample, methodology and results is not made public.P1544F^[31]P

Beaton Consulting usually include a widely publicised pro bono element on an issue of professional and community concern in the survey. The pro bono element of the survey in 2006 consisted of an optional additional mental health component which had been designed by beyondblue (a privately funded initiative aimed at developing community understanding and oriented depression and anxiety initiative). These particular questions have not been asked again in any subsequent year.P1545F^[32]P It was this pro bono element in the 2006 survey that formed the basis for the findings in the Beaton Study about the prevalence of depression in the legal profession.

The BMRI Report was commissioned by the Tristan Jepson Memorial Foundation specifically to collect evidence of depression among law students and lawyers. The suicide of young lawyer Tristan Jepson prompted discussion, anecdote sharing and soul searching among his family, friends, teachers and colleagues about the pressures faced by young lawyers working in large law firms and the extent of hidden depression and use of anti-depressants by young lawyers. Tristan Jepson’s parents set up the Foundation to raise awareness and de-stigmatise mental illness among law students and the legal profession. As they explain:

Quite quickly, our work with the University and the profession led us to believe that there was a widespread refusal to acknowledge there was a problem. One of the problems, however, was there was no Australian research on the issue. This led to ‘Courting the Blues’, a ground-breaking piece of research conducted by the Brain & Mind Institute at the University of Sydney. The study involved a [voluntary self-selected] survey of more than 2000 lawyers [and law students], and confirmed what we had feared – depression seemed to be rife among the profession and in the law schools. Sadly, 1 in 3 lawyers suffer from depression, which is an alarming statistic.P1546F^[33]

A number of Australian law school scholars have responded to the Beaton Study and BMRI Report by conducting further studies of lawyer and, in most cases, law student wellbeing, as shown in Table 1.P1547F^[34]P

As the sections below show, there are three ways in which the methodologies of these various studies introduce ambiguity into the statistics gathered: first, the use of psychological scales; second, the samples on which they are based; and, third, the difficulty of collecting evidence to establish whether or not there is a unique or causal link between being a law student or lawyer and psychological distress.

1 Using Psychological Distress Scales in Survey Research to Create Clinical Categorisations

The first issue is the way the results from the psychological distress scales used in these surveys tend to be cited to imply categorical clinical conclusions. The various studies all use either the Kessler Psychological Distress Scale (‘K-10’) or, more commonly, the Depression, Anxiety and Stress Scale (‘DASS’), as indicated by Table 1.

The full (42 questions) and 21 question versions of the DASS contain three separate sub scales designed to measure specific negative emotional states of depression, anxiety and stress.P1548F^[35]P Respondents reply on a four-point scale (scored 0–3) as to how often they have experienced symptoms in the last week. This results in scores in the range of 0–42 for each of the three specific subscales.P1549F^[36]P The K-10, by contrast, is a generalised negative emotion scale consisting of 10 questions to measure psychological distress.P1550F^[37]P It has a minimum score of 10 and a maximum of 15.

Both scales have been developed and tested against ‘normative’ populations so that data is available as to how widespread each level of distress is in the normal population. This means that data collected using these scales can be used to compare symptoms or negative emotional states (ie, feelings of distress) between samples (eg, from different occupational groups), or between a sample (eg, of law students or lawyers) and the general population, but only as long as sampling is appropriate.

The makers of both scales, however, caution that in survey type research one should not assume that application of the scales necessarily implies a categorical diagnosis of a mental disorder such as depression. Neither scale is designed to fully support a clinical diagnosis of a mental disorder. Rather, they are intended to be used as screening and monitoring tools by medical practitioners with people at risk of mental disorders before moving onto diagnosis via more specific scales, interviews and/or clinical observation. Responses to these scales in surveys inform researchers about the prevalence of symptoms that are likely to be present as a matter of degree in all members of the population at some time, but not to draw categorical conclusions about underlying clinical conditions. These scales are designed to investigate the degree of symptoms that most ‘normal’ people will have at some time, and to what degree someone is experiencing heightened symptoms that indicate a risk of more serious troubles.

The issue is that the use and reporting of these scales in survey research tends to de-emphasise the extent to which they measure shades of grey in the extent of distress always present throughout the population and exaggerate their diagnostic conclusiveness. This in turn implies the need for clinical responses to the clinical problem apparently uncovered, and heightens the sense of alarm.

For example, the results of the DASS are frequently reported by proportions of respondents in each of the categories, ‘mild’, ‘moderate’, ‘severe’, and ‘extremely severe’. According to the creators of the DASS these categories are ‘necessarily arbitrary’.P1551F^[38]P This is because:

The DASS is based on a dimensional rather than a categorical conception of psychological disorder. The assumption on which the DASS development was based (and which was confirmed by the research data) is that the differences between the depression, the anxiety, and the stress experienced by normal subjects and the clinically disturbed, are essentially differences of degree. The DASS therefore has no direct implications for the allocation of patients to discrete diagnostic categories postulated in classificatory systems such as the DSM and ICD [widely used and accepted clinical diagnosis tools].P1552F^[39]

The creators suggest that creating labelled categories of degree of severity of symptoms using the DASS may be useful for clinical purposes within the context of a more thorough clinical assessment. This allows comparison of an individual against the normative population proportions for each category (which are provided in the 1995 manual).P1553F^[40]P For research purposes, however, they suggest that it is generally more appropriate to use only the numerical scores.

It is therefore generally not appropriate, in reporting survey based research using either of these scales, to use categories or labels such as ‘mild’, ‘moderate’, ‘severe’, or ‘clinical’ versus ‘normal’ that might sound like a clinical diagnosis.P1554F^[41]

Nevertheless the Beaton Study and the other studies that use these scales generally do report their findings as if they could create a dividing line between ‘normal’ and ‘clinical’ respondents. Note, for example, the slippage in language – from indications of depressive symptoms to the incidence of depression – in the way the Beaton Study summarises its findings:

Results from a survey of over 7500 Australian professionals indicated higher than average levels of depressive symptoms when compared with the general Australian population. These higher rates of depression were consistently found across all age groups ... These preliminary findings highlight an urgent need for senior leaders in professional service firms to acknowledge and respond promptly to the high incidence of depression.P1555F^[42]

The academic studies that use the DASS are more careful – they all report the results in terms of categories but also report scores.P1556F^[43]P They show varying degrees of carefulness in reporting that their research only indicates the degree of prevalence of ‘symptoms’ of psychological distress – as opposed to implying clinical diagnoses.P1557F^[44]

Like the DASS, the K-10 is intended as a screening mechanism to be followed by more specific diagnostic tests if necessary. Interpretations differ as to where one should draw the lines on the scale of 1 to 50. All agree that scores of 31 and over (scored as ‘very high’ distress) are likely to be indicative of a serious depression or anxiety problem.P1558F^[45]P It is less clear at what point distress scores between 15 and 30 should be considered indicative of likelihood of a mental disorder. The BMRI Report refers to scores between 16 and 21 as ‘moderate’ distress, and scores between 22 and 29 as ‘high’ distress.P1559F^[46]P

The BMRI Report is careful to draw appropriate conclusions from the application of this scale. For example: ‘The law student sample had a higher level of reported distress than other Australian samples for which this measure is available’.P1560F^[47]P

As with the DASS, however, the repeated short form reporting of these categorisations tends to exaggerate the diagnostic conclusiveness of the results. Thus articles and policy statements that cite the BMRI Report and the Beaton Study make statements that imply clinical categorisations such as: ‘over 35 per cent of law student and almost a third of solicitors and one-fifth of barristers had levels of depression regarded as disabling’;P1561F^[48]P and:

The BeyondBlue and Beaton Consulting Annual Professions Survey of April 2007 found that lawyers are two and a half times more likely to suffer from clinical depression than other professionals. Late last year Sydney University’s Brain and Mind Research Institute put it at four times more likely. That research involved 2400 lawyers and found that one in three solicitors and one in five barristers report depression.P1562F^[49]P

2 Non-Representative Sampling

The second issue is that the two major studies’ reliance on voluntary, self-selected convenience samples is likely to focus in on the experience of symptoms of psychological distress in the legal profession without providing a reliable basis for comparing the exact prevalence and extent of these symptoms with other segments of the population. This focus on data collected from a voluntary self-selected sample in the Beaton Study, BMRI Report and Bergin and Jimmieson study tends to exaggerate the impression of the extent of distress in the law as compared with the rest of the population, without providing a reliable evidence base for comparison.

In order to make valid generalisations about the prevalence of depression from a sample to the profession (or law students) as a whole, a survey sample should be based on probability sampling that ensures the sample is as representative of the general population as possible. Neither the Beaton Study nor BMRI Report makes any attempt to identify what the population is from which the sample is drawn, and no attempt was made at probability or representative sampling in either study. Both were sent out widely with people self-selecting to respond.

Beaton Consulting sends out its survey via professional associations and professional services firms with which it has some relationship as a client or pro bono or marketing partner, and then it is left to those firms and associations to pass it onto members and clients and for those members and clients to choose whether to fill it out or not. There is no information provided about the representativeness of the Beaton Study sample as against the general populations of professionals in the various professional groups surveyed.P1563F^[50]P

The BMRI Report is based on a self-report survey sent out to 13 universities and the Law Society of New South Wales, Law Institute of Victoria and New South Wales Bar Association, which were then expected to send it out to students and lawyers. The authors recognise that this means that the representativeness or skewedness of the sample is unknown.P1564F^[51]P The BMRI Report notes that females are overrepresented in the survey in all categories and that the female respondents reported a higher rate of depression,P1565F^[52]P suggesting one way in which the finding of the prevalence of depression may be exaggerated. But no other information is available about the representativeness or otherwise of the sample.

The only valid conclusions about the exact extent of symptoms of psychological distress that can be drawn from these voluntary self-selected samples is that a certain proportion of the lawyers and law students who actually chose to fill in the survey had high or very high psychological stress. Indeed, those who were willing to fill out these surveys may well be more likely to be those who have experienced psychological distress themselves or seen others close to them experience distress, and are therefore motivated towards making known the experience of psychological distress so that it can be acted on.

Both the Beaton Study and BMRI Report have also been cited to show that law students and legal professionals are more depressed than other professions, students and the Australian community more generally. However, since the samples do not support generalisation to law students and legal professionals as a whole, nor can they support comparisons with other segments of the population. The BMRI Report figures, for example, are compared against other figures from the general community collected using representative sampling methods, including the Australian Bureau of Statistics (‘ABS’) National Health Survey of 2004–5,P1566F^[53]P and the National Survey of Mental Health and Wellbeing.P1567F^[54]P The fact that findings from self-selected non random samples are being compared with findings from representative community samples, and that different instruments for measuring psychological distress were used, means one should be very cautious in concluding that the findings are comparable. The BMRI Report also compares its findings with a survey of medical students conducted by the Brain and Mind Research Institute,P1568F^[55]P but with the sample drawn in a completely different way.

The Beaton Study is cited to suggest that it compared lawyer rates of depression with other professional groups and found lawyers the most depressed. This may be read to imply that lawyers are more depressed than other well-known professions such as medical doctors, dentists, teachers and clergy. The fine print in the Beaton Study, however, states that: ‘“Professionals” are defined as individuals who work for professional services firms’.P1569F^[56]P That is, law firms, accounting firms, consulting engineering firms and management consulting firms, all commercially oriented professions and the type of firms to whom Beaton Consulting markets its consulting services. This means that only nine types of professionals are included in the survey: accounting, consulting, engineering, law, patent attorney, actuarial firm, IT services, architectural, and insurance underwriting and insurance brokering. Professionals in areas such as health care, education or the social services sector are not included in the data.P1570F^[57]P Moreover the Beaton Study repeats the same sampling strategies for each of the professions, thus comparing a series of non-representative samples with each other.

Of the follow-up studies, the Bergin and Jimmieson study uses a convenience sample methodology and self-selection survey along similar lines to the BMRI Report, covering both law students and lawyers.P1571F^[58]P Its sample is less extensive than the BMRI Report, and it has quite a poor response rate.P1572F^[59]P The results are dramatic: 30 to 50 per cent of law students and lawyers answering the survey score moderate or above on the three DASS scales. The fact that this number of respondents have this experience is indeed concerning. It does not necessarily follow that the same proportion of the profession as a whole have the same experience. The poor response rate may mean that the survey findings are vulnerable to a self-selection bias, with those who have experienced psychological distress more likely to want to voice their experience.

The four university based studies following on from the Beaton Study and BMRI Report generally work with much better samples and response rates than the Beaton Study and BMRI ReportP1573F^[60]P – probably because they focus on law students at their own institutions, thus providing an identifiable and easily accessible population for study. Moreover, the fact that these studies are based on particular law school cohorts means that the researchers can better evaluate the representativeness of their samples and interpret results accordingly. These studies still rely on voluntary self-filled surveys and will therefore still be vulnerable to self-selection bias. They are largely based on law students experiencing the first year of university study and assessment which may in itself be a disruptive and distressing experience.

The Monash Study,P1574F^[61]P which has by far the best response rate,P1575F^[62]P and also the most extensive survey questions,P1576F^[63]P also finds the least dramatic results: 15 per cent moderate or greater on the DASS at the end of the year.P1577F^[64]P The University of Adelaide Study with the poorest response rate (and therefore the conclusions perhaps most biased by self-selection) finds 48 per cent of law students psychologically distressed (4.4 times more so than an age matched peer sample).P1578F^[65]P This suggests that better samples may lead to much less dramatic results.

3 Proving That Law Causes Psychological Distress

The Beaton Study and BMRI Report are often cited as if they proved that the experience of law school or legal practice causes depression. Studying law students and lawyers in isolation may lead to the impression that there is a causal link between the study or practice of law and mental health problems, yet such studies have not yet been published.P1579F^[66]P

The evidence suggests that it is not only lawyers and law students who have a high and increasing rate of reported psychological distress and mental health disorders. According to the Australian Institute of Health and Welfare’s 2013 ‘Mental Health Services’ report,P1580F^[67]P 45 per cent of all Australians aged between 16 and 85 will experience one or other of the common mental health-related disorders over their lifetime. Every year, 20 per cent of the Australian population will experience the symptoms of a mental disorder.P1581F^[68]P The most common are mood disorders, such as depression and anxiety, and substance use disorder. The last ABS National Mental Health Survey shows that mental health disorders are more common in younger members of the population.P1582F^[69]P Affective (depressive) and anxiety disorders are more common in women while substance use disorders are more common in men. The Mental Health Services Report also estimates that there were 32.7 million prescriptions for mental health related medications dispensed in 2011–12, 11.2 per cent of PBS subsidised prescriptions for the year, and an average growth of 3 per cent per year in the number of prescriptions for the previous 5 years.P1583F^[70]P In that context, it should hardly be surprising that when researchers look, they will find evidence of high levels of distress in any particular segment of the population where there is time and money to seek out that distress.P1584F^[71]P In the long term, disproportionate attention to some sectors of the population may even skew understandings of the extent and severity of psychological distress in different segments of the population on the basis of meta-analyses and literature reviews.

The evidence from these studies, as well as earlier investigations,P1585F^[72]P is that many law students and young lawyers experience distress with the transformation of thinking and identity they experience as they come to terms with the ‘lawyer cast of mind’,P1586F^[73]P as well as the stresses and strains of high workloads, high competition, little control and uncertain job opportunities and work futures.P1587F^[74]P But is this unique to law?

The University of Adelaide Study,P1588F^[75]P which compares law students with other university students, was prompted by a concern that it was medical students suffering uniquely high psychological distress. Although the law students in the sample group did turn out to have the highest scores for psychological distress (58 per cent), all students had very high levels (average of 44 per cent across the various disciplines), compared with an age matched population sample (11 per cent).P1589F^[76]P The authors suggest that although disciplines may cluster into bands with varying levels, all the disciplines had a large proportion of students who were highly distressed in their study and in a range of studies on tertiary students from a host of other countries: ‘The disturbing factor from all these findings is not that one discipline may be comparatively more distressed than another, but that they all appear to be more distressed than age matched peers from the general population’.P1590F^[77]

Another study cites 84 per cent of all Australian university students suffering symptoms of psychological distress.P1591F^[78]P It might be more accurate to interpret the various studies indicating severe psychological distress among law students, in the same way that the authors of the ANU Study do. They suggest that first-year law students ‘experience psychological struggles and changes in their thinking styles, self-concept and sense of wellbeing’ as they navigate the first year of law school and face their end of year assessment.P1592F^[79]P These struggles are expressed in a particular way in law school but relate to the inevitable development and change of identity as any young person comes to terms with tertiary education in the current climate.

Similarly, Collier points out the proliferation of literature, noting that lawyers in all areas of practices face:

concerns around poor work/life balance, frequent long hours and ‘work-aholism (especially in large commercial ‘City’ firms), job insecurity, cultures of ‘presenteeism, career dissatisfaction, high pressure/high stakes environments, lack of autonomy ... the increasingly hyper-competitive and business-like nature of law ... exacerbated in the context of an intensively competitive credentialisation process which, set within a user-pays systems of education, has heightened concerns around an individual’s potential ‘fear of failure’.P1593F^[80]P

Collier connects these pressures that are particular to legal education and the practice of law to broader trends of marketisation of universities and the way the logic of the market has now come to shape civil society, including the profession, and the provision of core public services such as health care, justice and education.P1594F^[81]

B Responding to Imperfect Statistics

Thus, although these data establish that many law students and lawyers experience worrying symptoms of psychological distress, the studies are not necessarily adequate to say that lawyers and law students are dramatically more clinically depressed, anxious or suffering from other mental illnesses as compared with the general population, or that it is law specifically that causes it. Nevertheless, Seligman’s 2005 article,P1595F^[82]P and the more dramatic summaries of the evidence cited at the beginning of this article, tend to assume these conclusions can be drawn. This may well have helped advocates for change convince sceptical law school administrators and professional leaders to accept the need to take sensible and compassionate action to address mental health issues in the profession. The second Part of this article suggests that there might also be a price to pay for emphasising the clinical, individual and unique aspects of lawyer and law student psychological distress in calls for action, rather than the politics of commercialisation and marketisation of legal education and practice.

III CONNECTING THE PERSONAL AND THE POLITICAL

A A Moral Panic

The proliferation of lawyer wellbeing studies and programmesP1596F^[83]P suggests something approaching a ‘moral panic’. In criminologist Stanley Cohen’s classic definition, a moral panic was a situation where mass media amplified deviance and created an opportunity for moral entrepreneurs (‘editors, bishops, politicians and other right-thinking people’) to create hostility to ‘[a] condition, episode, a person or group of persons ... as a threat to societal values and interests’.P1597F^[84]P Moral crusaders with the support of media and politicians could then use the moral panic to create or reinforce certain social rules. A moral panic in this sense can be defined as a situation in which:

the official reaction to a person, groups of persons or series of events is out of all proportion to the actual threat offered, when ‘experts’ ... perceive the threat in all but identical terms, and appear to talk ‘with one voice’ of rates, diagnoses, prognoses and solutions, when the media representations universally stress ‘sudden and dramatic’ increases (in numbers involved or events) and ‘novelty’, above and beyond that which a sober, realistic appraisal could sustain.P1598F^[85]P

A classic moral panic might be a situation where media representations of crime and violence associated with bikie gangs is followed by a social outcry and repressive legislation criminalising biker gangs and all associated with them.P1599F^[86]

More recently, social scientists have broadened the scope of situations to which the term ‘moral panic’ might be applied. Krinsky suggests that the essence of moral panics is that they are ‘misleading expressions of enduring social and economic conflicts’.P1600F^[87]P Writing about the history of the English Bar in the 1860s, Wes Pue has suggested that a ‘moral panic’ may be an expression of moral outrage over the behaviour or life circumstances of a particular set of individuals – but this outrage is an outworking of a sense of discomfort, contest and conflict stemming from broader social, legal or normative changes.P1601F^[88]P In this case, the outrage is the sense of alarm and concern about the psychological distress experienced by many individuals and the failure of professional associations and law schools to address it. As in a classic moral panic, there is strong language emphasising the uniqueness of the extent of lawyer depression, an apparent consensus about rates and diagnoses, and a unity in proposing that it is important to respond with priority and alarm in adopting certain solutions.P1602F^[89]P Scholarly and activist critique of the profession may well be coalescing around the diagnosis of a crisis of psychological wellbeing in the legal profession and a series of programmes aimed at improving lawyer wellbeing in response.

The ‘moral panic’ analysis suggests that, as a community’s constellations

of social, economic and political power change, so must its normative understandings of what practices and behaviours are legitimate or illegitimate, appropriate and inappropriate, or ethical and unethical. This is likely to cause discomfort, contest and conflict.P1603F^[90]P In other words, a moral panic is an indication that a community is experiencing an uncomfortable change, a contestation, strengthening, or adjustment of political and economic arrangements that is forcing change in the community’s social mores. And as social mores change, the inherited ethical ideologies that underlie them must change too. A moral panic is a point at which discomfort, contest and conflict manifest and crystallise. It is a point at which certain interests and values may be asserted and contested while others may be ignored, de-emphasised or even demonised.P1604F^[91]P It is a point at which such conflict can come to the surface and cause productive change or be swept under the carpet. It creates a discourse around what matters. These discourses are powerful in either legitimating or destabilising current social, political and economic arrangements.

Wherever there is a moral panic, an important question is whose interests are furthered by the creation of the moral panic and its proposed solutions and which are downplayed or displaced. The following sections suggest that the lawyer wellbeing crisis is a manifestation of growing commercialisation and resultant employment uncertainty in legal education and the legal profession. This certainly has implications for individuals’ psyches but there is a danger that too much focus on prescribing individual psychological and medical solutions will make individuals ethically responsible for managing their own responses to a social, economic and political situation that itself should be questioned and changed. In the case of law, there is also the danger that it will draw attention away from the public purpose of legal education and the legal profession itself, including the provision of justice through the public court system.

B Contests over Broader Social, Political and Economic Arrangements

As Wes Pue points out in his history of earlier moral panics over lawyer conduct, a moral panic might be sparked by ‘seemingly chance factors’.P1605F^[92]P In the case of the lawyer wellbeing crisis they are indeed tragic ones – depression and suicideP1606F^[93]P – and discussion and soul searching followed. Yet the fact that these individual tragedies have caught the collective attention and imagination of the profession at a particular point time are also ‘the products of specific historical forces in specific social environments’.P1607F^[94]P

In law there has been significant change in the profit models for both commercial legal advice and also advice to individuals and small businesses. The changes in the social, political and economic arrangements of legal practice in recent decades are so great and obvious that they hardly need to be rehearsed here. Important developments include: the growth, industrialisation and commercialisation of large corporate law firms; the contestation of law firm power by in-house lawyers, boutique firms, and off-shore outsourced legal services; the consolidation, increased profit orientation, and financialisation

of personal plight firms; and reduced funding and increased regulation of

legal aid provision.P1608F^[95]P There has also been considerable change in the funding and regulation of law schools including the withdrawal of public funding from universities, law degrees as profit centres for universities, and the pressures

of increasing regulation of academic teaching and research performance.P1609F^[96]P This

all makes lawyers’ own employment and careers less certain and secure,

more competitive, more ‘liquid’, and less embedded in one firm or even

one profession.P1610F^[97]P These changes are not at all unique to the law, although, as suggested above, they will manifest in particular expressions in law.

In the midst of such change in legal practice and education, it is expected that people’s sense of what behaviours are appropriate and inappropriate will also change and conflict. In the 1980s and 1990s, there was much discussion in scholarship and the profession about the impact of commercialisation on lawyers’ ethics.P1611F^[98]P In the last decade, however, the concern with lawyer mental health has become a more prominent theme in the literature,P1612F^[99]P and appears to have had an impact on the programmes offered by law schools, professional associations and legal profession regulators.P1613F^[100]P

The question is what social, economic and ideological interests are being served and which are being ignored by this particular diagnosis of the problem and proposed solution?

C An Individualising Discourse

The danger is that paying attention to lawyer depression as a clinical issue that uniquely faces the legal profession might create a discourse around lawyers’ ethics that emphasises individual lawyers’ ‘ethical’ responsibility to recognise and treat the signs of depression in themselves and others, rather than to work collectively as a profession to create a meaningful role in society and a better, more just polity and economy. It is useful, supportive, perhaps even foundational to human and professional functioning to teach individuals coping mechanisms and resilience. It is also a matter of fundamental fairness to practice tolerance and non-discrimination in relation to those with mental health problems, and to make it clear that there is no shame in seeking therapy, pharmaceuticals and appropriate medical treatment when necessary. At the same time these are also all responses that can, if emphasised as the only response to distress, ‘responsibilise’ individuals for their experiences, and may serve to disconnect them from the broader social, economic and political relations in which those experiences make sense.

Critics of neoliberalism have pointed out that the increasing marketisation of economy and society has made each individual more and more responsible for his or her own education and career, yet at the same time more precarious in

his or her financial, employment and social relations than ever before.P1614F^[101]P Hilary Sommerlad shows how commercial law firms’ human resources management discourses look for young lawyers who can present themselves as entrepreneurial, self-regulating, robust and resilient individuals,P1615F^[102]P even as law firm partners cede more and more of their own professional autonomy over to clients.P1616F^[103]P As Sommerlad points out:

The responsibility to develop a client base and meet targets is cascaded down to each employee ... Corporate identity is thereby individualised through a reflective process in which the needs of the law firm [and thereby service to the client] are ‘emphasised within individual thought as means for achieving career success’ ... the aspiring vacation placement student must demonstrate the ability to engage in ... enterprise as a project of personal fulfilment.P1617F^[104]P

Thus the successful young lawyer must present himself or herself as an autonomous individual, but in fact work in a law firm team that is always available to serve the client and thus derogates from the ideal of a law firm and professional which autonomously serve the law and the public good, not just the client. Sommerlad’s analysis of young lawyers’ experiences in recruitment and summer clerkships and her reading of law firm human resource management discourse shows starkly how it is the individual lawyer, himself or herself, who is asked to manage this contradiction in the presentation of himself or herself.

As I argue below, there is a contradiction, or a balancing act, between service to client and court, advocacy and legal justice, that has traditionally been at the heart of the profession’s collective understanding of its public role. It has certainly always been contested and picked over by lawyers with different views as to where the balance should lie – but in a way that is a chief responsibility of the collective project of the profession as a community. There is a danger that wellbeing advocates will be co-opted to support an individualising and responsibilising discourse that further confines this contradiction to the psyche of the individual lawyer, seeking to make the individual bear what the profession as a collective should take responsibility for.

In the neo-liberal context, fostering individual ‘resilience’ has become an integral part of social governance.P1618F^[105]P As Matthew Ball argues on the basis of his analysis of various texts aimed at fostering law student ‘resilience’ in Australia, the United Kingdom and United States, students are being encouraged to manage their own uncertainty and risk by taking up:

psychologically- and biomedically-infused subject positions, becom[ing] well-disciplined subjects, entrepreneurs of the self ... and even virtuous persons as ways of avoiding, or ‘bouncing back’ from educational experiences likely to be produce mental ill-health.P1619F^[106]

The ‘Resilience’ DVD produced by the New South Wales College of Law with the sponsorship of several law firms and distributed widely to lawyers and law students as an educational tool to raise awareness of lawyer depression appears to perform a similar function. Throughout the DVD, four lawyers – all working for large commercial law firms – recount their stories of depression, mental breakdown and rehabilitation via counselling, medication and the support of family, friends and firm. Their stories are interspersed with information about depression, anxiety and stress from a medical point of view, and supportive statements from leaders in the profession about how lawyers should report their psychological distress to their firms and regulatory bodies in order to seek psychological help and treatment so that they can get back to work.

D Moral Panic as Individualising Discourse

The chief function of a moral panic is to make a public issue of the need to treat and control individual behaviour – and thereby divert attention away from the interests served by current and changing social, political and economic arrangements. In the classic conception of a moral panic a particular group of individuals are demonised in an attempt to draw and reinforce moral boundaries. Thus Cohen conceptualised a moral panic as creating ‘folk devils’ whose deviance must be controlled.P1620F^[107]P The lawyer wellbeing crisis does not demonise individual lawyers who are depressed. To the contrary, it seeks to support and de-stigmatise those who suffer depression, anxiety, stress and mental disorders in the profession. The danger, however, is that those who benefit from the current system can use wellbeing programmes to direct attention and support to the personal burden borne by individuals for the stresses and strains of the system without addressing the necessity for individuals collectively to act as citizens to change political, social and economic arrangements.

Many others have made the point more generally that the mental health crisis facing the western world is both an experienced fact and a social construction.P1621F^[108]P It is an experienced fact: individuals are under great social, economic and political stress and suffer psychological distress and seek individual psychological treatment as a result. But it is also a social construction. It is part of the neoliberal condition to interpret dissatisfaction with our lives in terms of individual troubles to be addressed by medication and personal coping and wellbeing strategies rather than collective political and social action.P1622F^[109]P ‘Coping with fear becomes a problem of individual psychology or a medical issue, while the material conditions and the strategic aims of the production of fear remain invisible.’P1623F^[110]P We may feel powerless to change the social and economic system in which we live our lives, but we might feel that we can at least be responsible for our own psychological response to that situation and help others to also respond in a psychologically healthy way. This is dangerous if it is the only response. This moral panic could divert attention away from fundamental social, economic and political issues in the way law is practised and taught that are known to create or sustain depression and anxiety. If the issue is framed in a largely psychological ‘wellbeing’ framework, there are powerful factors and interests in our society and political economy that will seek to confine it to the personal rather than the political.

E Exercising Sociological Imagination through Legal Ethics

Scholars and commentators who write on the lawyer wellbeing crisis do of course recognise the need for individual psychological distress to be understood in the context of social conditions.P1624F^[111]P The seminal article by Seligman,P1625F^[112]P for example, points out that firm cultures and the adversarialism of the profession probably contribute to lawyer distress.P1626F^[113]P But there is a danger in the wellbeing literature that the public professional role of lawyers as adversarial advocates and guardians of justice is the thing that is demonised. The notion that the lawyer role can be richer than just client service is also de-emphasised.P1627F^[114]P

Traditional professional legal ethics, by contrast, draws on a ‘sociological imagination’ that, at its best,P1628F^[115]P does the opposite. This idea of the ‘sociological imagination’ comes from Wright Mills’ humanistic vision for sociology: to educate individuals to avoid being ‘falsely conscious of their social positions’.P1629F^[116]P Mills argues that, while individuals often feel that the circumstances of their daily life are their own problems alone, the ‘sociological imagination’ connects their personal troubles to public issues so that they can understand that their personal problems are shared by others and can only be solved by change to the structure of the groups and societies in which they live.P1630F^[117]P It finds personal issues and troubles in the practice of a profession and connects them to broader public issues in the role and function of that profession in society, and the virtues and practices of a profession. It suggests that the troubles that individual professionals face are shared, and that therefore solutions must and can be found through collective political, economic and social action. Legal ethics scholarship and commentary thus provide a set of discursive resources that can be used as a basis for talking and teaching about the profound challenges and opportunities facing the law and all those of us who work with it. This literature addresses the question not so much of what will make an individual lawyer feel comfortable, but what makes for a good life as a lawyer in a profession that contributes to the public good in economy, society and polity.

The following section illustrates the potential for legal ethics discourse to help address the problems identified by wellbeing advocates by contrasting Seligman’s three (potentially individualising) diagnoses and solutions for the lawyer wellbeing crisis, and the socio-political insights and questions of lawyers’ ethics discourses. This contrast shows how the questions posed by legal ethics literature might prompt the sociological imagination of the legal profession in responding to change and conflict.P1631F^[118]

F Seligman’s Three Diagnoses and Solutions for Lawyers: Wellbeing Discourse Contrasted with Legal Ethics Discourse

First, Seligman argues that lawyer depression is the result of law students and lawyers being selected or trained for a lawyer ‘cast of mind’P1632F^[119]P that is essentially risk focused and inherently pessimistic because it is technical, narrow and exclusively focused on foreseeing problems, conflicts and adversarial resolutions.P1633F^[120]P

Seligman proposes as a solution that lawyers and law students can learn optimism and broader coping skills through various individual coping strategies or practices of resilience that include counselling, cognitive behavioural therapy, mindfulness meditation and other wellbeing resources. He suggests they can also learn flexibility to use pessimism when appropriate in specific professional situations, such as advising a client or preparing for a court case, while maintaining optimism as the basic attitude towards their personal relationships and the management of their own careers.P1634F^[121]

Legal ethics literature does not accept the assumption that the lawyer ‘cast of mind’ is inherently pessimistic. Much legal ethics literature is concerned precisely with the urgent question of how to conceptualise and communicate lawyers’ social role so that it is not about adversarial advocacy in the narrowest, most technical and potentially socially negative sense – but rather to see

lawyers as responsible also for helping clients comply with the law, engage in preventive and problem solving lawyering to achieve positive commercial

and personal goals, and build good personal and business relationships.P1635F^[122]P Legal ethics literature sees the lawyer’s role as something to be proud of, not primarily because it is personally fulfilling or economically rewarding, but because the legal professional uses his or her personal skills to contribute to the advancement of law and justice.P PLegal professionals have a specific responsibility to make the law work as both a public good and in individual clients’ lives to help people live together.

Second, Seligman argues that lawyer depression is caused by employed lawyers’ lack of professional autonomy. Lawyers, especially young lawyers,

as Seligman points out, work in situations ‘characterized by high pressure

and low decision latitude, exactly the conditions that promote poor health

and poor morale’.P1636F^[123]P A similar critique might be applied to the modern university experience, with students working to support themselves and make themselves employable after university and managing high assessment loads.

To ameliorate this situation, Seligman proposes that lawyers should be offered personal enrichment opportunities within these firms so that they feel that they have a say in how things are decided and get to use their ‘signature strengths’ that make them feel valued as people.P1637F^[124]P They should be given more opportunity to connect with clients and colleagues as individuals. According to Seligman, this will help them perform better and bill more hours. Seligman certainly hopes that young lawyers might actually have the opportunity to change the way their firms work, at least a little, but recognises that the ‘illusion of decision latitude’ could be enough.P1638F^[125]

The legal ethics literature, however, raises the question of whether legal practice can any longer be organised in a way that supports the degree of independence, autonomy and personal resilience that lawyers need to fulfil their public professional roles. A repeated theme in the literature has been the problems for the traditional role of the lawyer as client advocate/representative and officer of the court where they do not actually have sufficient autonomy and independence to relate to clients, understand their situation and advise them strongly. The lack of lawyer autonomy and professionalism that has accompanied commercialisation and industrialisation of law is commonly noted in the literature, and the legal ethics literature points out that structural change at the social, economic and political level is probably necessary to address it.P1639F^[126]P Personal enrichment opportunities and the use of personal coping strategies cannot solve a problem that requires a collective solution.P1640F^[127]P

Third, Seligman points to the problem of excessive adversarialism and lack of civility in the legal system. Seligman sees it as almost inevitable that the adversarial system makes lawyers aggressive and competitive because it exaggerates negative emotions. ‘American law is to some extent a zero-sum game, and negative emotions flow from zero-sum games.’P1641F^[128]P

Here Seligman comes to the central issue of legal ethics scholarship. He notes that there is a connection between the individual’s experience of and satisfaction with professional life and the overall purpose of the profession. But instead he frames public good (the adversary system) and personal satisfaction (lawyer wellbeing) as inherently themselves adversaries: ‘Lawyers are trained to be aggressive and competitive precisely because they must win the litigation game. This training, because it is fuelled by negative emotions, can be a source of lawyer demoralization, even if it fulfils a social function’.P1642F^[129]

Seligman goes on to ask an important question, but he frames it in terms of individual psychology: ‘whether adversaries can be competitive without being pessimistic’.P1643F^[130]P Seligman suggests that law schools and law firms should teach lawyers that it is okay to be ‘civil’ and provide opportunities for lawyers to engage in alternative dispute resolution practice.P1644F^[131]P Similarly, Allen and Baron suggest that law students will have a greater sense of wellbeing if they can focus on their own positive personal values and intrinsic motivations,P1645F^[132]P rather than intense competition.

This is where legal ethics literature can be most helpful in addressing the discontent evidenced by the wellbeing crisis in a more sociologically imaginative way. Legal ethics literature argues that, in the practice of law, it is not enough to simply seek to inculcate a purely personal ethics and individual motivation and value. No matter what their other differences on the precise contours of lawyers’ ethics, most legal ethics scholar see lawyers’ private service provision as inherently part of a collective endeavour in a public system of justice in which they can take pride. It is not merely a matter of private civility tempering the negative emotions that are the cost of our adversarial system. Even the most ardent proponent of the lawyers’ role as adversarial advocate for his or her client recognises that the practice of law is a collective professional endeavour in the public good. That is, even when the lawyer is acting as a client advocate, they are doing so because it is a public good to have lawyers available to help citizens navigate the legal system and protect their rights.P1646F^[133]P

Ethics scholars who emphasise the role of lawyers as responsible officers of the court,P1647F^[134]P or moral activists responsible for representing underrepresented causes and ensuring the social justice of the legal system,P1648F^[135]P go even further in arguing that lawyers have public ethical duties to make the legal system work according to the spirit of the law, or indeed to pursue substantive justice even where the legal system operates unjustly. Those who advocate for the practice of caring or relational lawyering point out that lawyers can fulfil their role as counsellors and problem-solvers without always using adversarialism.P1649F^[136]P

In short, as even this brief summary suggests, discourses on the social ethics of the legal profession already suggest a much richer range of roles and associated ethics that lawyers can, do and should use beyond narrowly technical client service. These are the type of substantive questions – and differences of approach to lawyers’ role – that can be discussed and debated to help lawyers understand and feel that their individual roles contribute to a broader, more meaningful project in society. Individual resilience is just one resource in connecting the individual experience of being a professional to working out how, individually and collectively, to help create better institutions that can help lawyers, law students, legal academics better pursue legal justice.P1650F^[137]

IV CONCLUSION

At its best, the wellbeing literature reframes and situates traditional professional ethical concerns at the individual psychological level and thus connects individuals’ feelings and experiences with broader ethical concerns facing the profession. Legal ethics may have spent so much time focusing on the social role and function of the legal profession, that it sometimes forgot the individual humanity of the lawyer him or herself. The lawyer wellbeing movement is a welcome corrective to that failure in legal ethics discourse. It reminds legal ethics scholars of the need to include questions about how the individual lawyer can maintain their humanity and relationships whole exercising their public professional role. But professional legal ethics points out that the experience of being a lawyer should not just be about individual wellbeing. It should be about the wellbeing of the profession and the law as a whole.

There is a danger that the alarming statistics and resultant moral panic that have been created about lawyer wellbeing will further privatise away lawyers’ and law students’ ethical responsibilities for the profession and for the role of law in society. The ways that lawyers and academics talk and write about these issues are powerful – they create discourses that frame the way young lawyers see their situation, and the ways that the profession and public respond. It is important to note dissatisfaction with legal professional roles and jobs, and respond compassionately and appropriately to individual distress. It is also important to notice that these statements of distress and discontent raise fundamental and enduring questions about the role of the legal profession and the rule of law in society. We should be extremely wary of the possibility that instead we are creating a regime that treats, manages and palliates lawyers and law students in distress so that they can cope with getting back to work in a system that is itself broken.

APPENDIX 1: SCHOLARLY ARTICLES AND MAJOR SPEECHES AND REPORTS ON LAWYER AND LAW STUDENT WELLBEING IN AUSTRALIA 2005 TO SEPTEMBER 2014P1651F^[138]

APPENDIX 2: PRACTICAL AND POLICY RESPONSES ON LAW STUDENT AND LAWYER WELLBEING

[*] Professor, Monash University Law Faculty. Thanks to Linda Haller, Lars Jansson, Rob Rosen and Michelle Sharpe for discussions and encouragement that helped me write this article; to Josie de Costa and Carly Brunswick for research assistance; and to Paula Baron (discussant), Kim Economides and Mark Rankine (organisers) for the opportunity I had to present and receive feedback on an earlier version of this article at the opening plenary for the Australia New Zealand Legal Ethics Colloquium 4: Challenging Professional Boundaries, Flinders University, 28–9 November 2013. I am also grateful to Rachael Field, Michelle Sharpe and the anonymous reviewers for comments and discussions about a draft of this article that helped me clarify my thinking. None of these people should be taken as sharing any of my views and I look forward to further dialogue.

[1] Martin Seligman, Paul Verkuil and Terry Kang, ‘Why Lawyers Are Unhappy’ (2001) 23 Cardozo Law Review 33. Seligman’s article was not original or unique in noting the problems and potential answers. It had long been foreshadowed, most notably in famous works by Susan Daicoff and by Patrick Schiltz in the United States: see Susan Daicoff, ‘Lawyer, Know Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism’ (1997) 46 American University Law Review 1337; Patrick J Schiltz, ‘On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession’ (1999) 52 Vanderbilt Law Review 871. In Australia, Allen and Baron had also pointed to these issues earlier and did so in a way that connected the personal and the political: see Judy Allen and Paula Baron, ‘Buttercup Goes to Law School: Student Wellbeing in Stressed Law Schools’ (2004) 29 Alternative Law Journal 285.

[2] Martin Seligman, Paul Verkuil and Terry Kang, ‘Why Lawyers Are Unhappy’ [2005] DeakinLawRw 4; (2005) 10 Deakin Law Review 49.

[3] See Appendix 1.

[4] See Appendix 2.

[5] Beaton Consulting, ‘Annual Professions Survey’ (Research Summary, beyondblue, April 2007) <http://www.beatonglobal.com/pdfs/Depression_in_the_professions_survey.pdf> (‘Beaton Study’).

[6] Norm Kelk et al, ‘Courting the Blues: Attitudes towards Depression in Australian Law Students and Lawyers’ (Report, Brain and Mind Research Institute, University of Sydney, January 2009) <http://www.cald.asn.au/docs/Law%20Report%20Website%20version%204%20May%2009.pdf> (‘BRMI Report’). See also, Norm Kelk, Sharon Medlow and Ian Hickie, ‘Distress and Depression among Australian Law Students: Incidence, Attitudes and the Role of Universities’ [2010] SydLawRw 5; (2010) 32 Sydney Law Review 113; Sharon Medlow, Norm Kelk and Ian Hickie, ‘Depression and the Law: Experiences of Australian Barristers and Solicitors’ [2011] SydLawRw 31; (2011) 33 Sydney Law Review 771.

[7] Five follow-up studies are summarised in Table 1, along with the Beaton Study and BMRI Report: see Catherine Leahy et al, ‘Distress Levels and Self-Reported Treatment Rates for Medicine, Law, Psychology and Mechanical Engineering Tertiary Students: Cross-Sectional Study’ (2010) 44 Australian and New Zealand Journal of Psychiatry 608 (‘University of Adelaide Study’); Molly Townes O’Brien, Stephen Tang and Kath Hall, ‘Changing Our Thinking: Empirical Research on Law Student Wellbeing, Thinking Styles and the Law Curriculum’ (2011) 21 Legal Education Review 149 (‘ANU Study’); Anthony Lester, Lloyd England and Natalia Antolak-Saper, ‘Health and Wellbeing in the First Year: the Law School Experience’ (2011) 36 Alternative Law Journal 47 (‘Monash Study’); Adele J Bergin and Nerina L Jimmieson, ‘Australian Lawyer Well-Being: Workplace Demands, Resources and the Impact of Time-Billing Targets’ (2014) 21 Psychiatry, Psychology and Law 427; Wendy Larcombe et al, ‘Does an Improved Experience of Law School Protect Students against Depression, Anxiety and Stress? An Empirical Study of Wellbeing and the Law School Experience of LLB and JD Students’ [2013] SydLawRw 15; (2013) 35 Sydney Law Review 407 (‘Melbourne Law School Study’).

[8] For a definition and explanation of this term, see below Part III(A).

[9] See Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis, 2014).

[10] For a definition and explanation of this term, see below Part III(E).

[11] Appendix 1 sets out the scholarly articles and major speeches and reports on lawyer and law student wellbeing published in Australia since Seligman’s articles was published in Australia in 2005 – indicating the growing interest the topic has attracted among both scholars and practitioners including legal profession associations and regulators.

[12] Larcombe et al, Melbourne Law School Study, above n 7, 430–1, quoting Ruth Ann McKinney, ‘Depression and Anxiety in Law Students: Are We Part of the Problem and Can We Be Part of the Solution?’ (2002) 8 Journal of the Legal Writing Institute 229, 229. In the Melbourne Law School Study, Larcombe et al cite American and Australian literature, including the BMRI Report.

[13] Bergin and Jimmieson, above n 7, 1.

[14] Townes O’Brien, Tang and Hall, ANU Study, above n 7, 149. The 35 per cent figure is from BMRI Report, above n 6, 12.

[15] Frances Gibson, ‘Psychiatric Disability and the Practising Lawyer in Australia’ (2012) 20 Journal of Law and Medicine 391, 391. Gibson goes on to cite the BMRI Report, above n 6, which is what McGorry was also referring to when he made this comment in his 2010 Tristan Jepson Memorial Foundation Annual Lecture: see Claire Chaffey, ‘McGorry Links Firm Environment to Depression’, Lawyers Weekly (online), 2 September 2010 <http://allnet.com/community/lwau/blogs/top_stories/archive/2010/09/02/

mcgorry-links-firm-environment-to-depression.aspx>.

[16] Appendix 2 summarises the various wellbeing programmes that have been set up nationwide and in the three most populous states (NSW, Victoria and Queensland) for practising professionals and law students by legal profession and law student associations and legal education institutions focused on individual wellbeing, resilience and mental health.

[17] See Kath Hall, ‘Do We Really Want to Know? Recognising the Importance of Student Psychological Wellbeing in Australian Law Schools’ [2009] QUTLawJJl 1; (2009) 9(1) QUT Law and Justice Journal 1; Kate Galloway and Peter Jones, ‘Guarding Our Identities: The Dilemma of Transformation in the Legal Academy’ (2014) 14 QUT Law Review 15.

[18] Rachael Field has challenged ‘naysayers to front up ... meet us in print and explain why our concerns for student stress levels, anxiety and depression are exaggerated, or should not be acted upon’: Rachael Field and James Duffy, ‘Better to Light a Single Candle Than to Curse the Darkness: Promoting Law Student Well-Being through a First Year Law Subject’ (2012) 12(2) QUT Law and Justice Journal 133, 137.

[19] Table 1 contains all published studies of lawyer and law student wellbeing in Australia that could be identified. All studies are fully referenced in the footnotes to the main article. Note that most of the law student wellbeing surveys also asked about positive wellbeing and satisfaction variables. This article focuses only on the measuring of negative emotions. In addition, see also Massimiliano Tani and Prue Vines, ‘Law Students’ Attitudes to Education: Pointers to Depression in the Legal Academy and the Profession?’ [2009] LegEdRev 2; (2009) 19 Legal Education Review 3, which is an empirical study that does not directly study wellbeing but other attitudes and relates to wellbeing. See also Anna Huggins, ‘Autonomy Supportive Curriculum Design: A Salient Factor in Promoting Law Students’ Wellbeing’ [2012] UNSWLawJl 28; (2012) 35 University of New South Wales Law Journal 683, who provides a useful theoretical consideration of extant data collected by other scholars.