A safe space

The impact of psychological safety on lawyer wellbeing and turnover in legal practice is enormous. Emma Clarke argues that feeling safe to speak up is key, but it needs to be backed up by changes in work practices and specific employee supports

Although I didn’t realise it at the time, I first experienced psychological safety when I was 14 years old. I was in year ten, and was failing mathematics. I always felt so stupid not being able to figure out the answer – I decided I was a complete failure.

My mother asked her friend Shirley, a teacher from another school, if she would tutor me. My progress improved surprisingly quickly.

Shirley encouraged me to see that getting the final answer wrong doesn’t mean I’m a complete failure – after all, I was getting most of the preliminary calculations correct! Shirley helped me to feel safe about experimentation and learning, which bolstered my confidence and enhanced the belief in my ability to figure out the correct answer.

I now realise that Shirley wasn’t just teaching me how to do mathematics, she was enabling me to feel psychologically safe. By the end of year 12, I was among the top students in my class and went on to study statistics and calculus at university.

Respect and trust

Amy Edmondson (2004) defined psychological safety as a belief that team members hold, regarding the respect and trust they have for each other, affecting their willingness to take intellectual risks and speak up about issues and mistakes without fear of negative repercussions to themselves or their career.

From 2021 to 2022, as part of my PhD research, I conducted surveys with 89 lawyers at two time points, and interviewed 35 practitioners (21 lawyers and 14 partners) across New Zealand who had previously or were currently working in law firms.

My objective was to examine leadership behaviours, psychological safety, and employee wellbeing in legal practice, and to identify factors that lead to employees’ decisions to leave.

Early in my interviews, I found that some female lawyers had resigned from their firms, leading to discussions about their decisions. Interestingly, all participants who had resigned or were considering leaving were women.

I also uncovered insights influencing male lawyers, too. High turnover of junior lawyers working in the legal profession, particularly among women, has been reported internationally and in New Zealand for over a decade.

Lawyers are unlikely to want to share their true reasons for leaving or their desire to leave, due to poor psychological safety, which my first study indicated is present in some NZ law firms.

Stress and poor wellbeing have also been extensively reported within the legal profession, likely playing a role in high turnover rates.

Employee retention should be a high priority for law firms, due to the cost of recruiting and training, sometimes exceeding 200% of an employee’s annual salary.

Substantial risks

Formal hierarchical work environments are obstructive for some lawyers, as they can generate fear and create a barrier that discourages employees from speaking to their leader about issues and sources of work pressure.

Many lawyers described scenarios when they felt unable to ‘be themselves’ at work, the apprehension they felt about challenging a senior member in the law firm’s hierarchy, and when taking intellectual risks.

These encounters led to a large number of female employees feeling unable to be open and honest about problems that were having an impact on their work. They either resigned or were contemplating leaving because they believed that expressing themselves openly in the workplace carried substantial risks.

These lawyers also believed that it was necessary to not disclose their real reasons for leaving, in order to protect their career prospects.

Alongside hierarchical structures, billable units were identified as one of the main sources of work pressure and a factor contributing to longer working hours.

Employees explained that billable units placed enormous pressure on them and, in some cases, this led to feeling overworked and stressed.

Billable-units bias

Many female employees interviewed argued that poor work/life balance stems from the billable-units system and was one of their primary reasons for leaving or for considering leaving.

I argue that the billable-units system is biased because it rewards those who work and bill longer hours, and disadvantages those who work part-time or have commitments outside of work, such as child-care obligations.

My research supports previous findings that show that when employees are provided with flexible working arrangements, women tend to use this resource to achieve better work/life balance, whereas men tend to increase their work commitment, enabling them to work longer hours.

When law firms measure performance using billable units, and provide employees with flexible work options, this reinforces a stereotypical pattern of work. As the billable hours system incentivises long hours, this behaviour is rewarded with promotions and bonuses.

Men have a comparative advantage because they are able to use time to create more value, and are able to complete work at a lower opportunity cost than women.

Access to resources

I also discovered gender differences in the allocation and access to resources at work, such as autonomy, leader support, and a culture of learning. Resources help lawyers to cope with stress in high-demand environments.

Half the leaders in my research evaluated the ability of employees to cope in stressful situations as something that is managed by the individual, and considered that “some people are just better [at coping]”.

One interpretation of this is that employees who were perceived by their leaders as more adept at coping may have had access to particular resources that facilitated better time management, enabling them to cope with stressful situations.

Alternatively, perhaps these employees had the ability to recognise the availability of resources and could easily access them, thereby enhancing their engagement at work, and were more effective at handling stress.

Imbalances in the distribution of unpaid work in the home also expose women to additional stress in paid employment, as they have less time available to complete their work.

Male participants said that they had considered leaving, but stayed due to high pay, feeling trapped in their job as primary breadwinners. Male lawyers also feel more cultural and societal pressures than women to stay working in legal practice, and could face social disapproval if they decide to leave.

Law firms need to reflect societal diversity to stay effective and economically relevant. Achieving a shift in organisational culture in order to build a psychologically safe climate and achieve greater gender diversity requires leadership committed to effecting change over an extended period of time.

This is particularly important for law firms and all organisations that operate under a formal hierarchical structure, where employees may not feel safe voicing their concerns.

Emma Clarke is a PhD candidate at the University of Canterbury, New Zealand.

SUGGESTIONS FOR CHANGE

 

Adjust the billable-units system

Adjusting billable units as the primary measure of performance is likely to help improve employee wellbeing and retain valuable talent, particularly among early-career women. Alternative business models for law firms include project-based models that measure success based on outcomes and provide clients with a fixed price, and subscription-based models where the price for legal work is agreed with the client and based on outcomes.

From an employment perspective, law firms could explore new methods of rewarding employee performance, such as the quality and outcome of their work, their contribution to value creation, the cultivation of strong client relationships, and the display of innovation and creativity in their roles.

Fostering psychological safety will help challenge gender stereotypes within legal practice by enabling employees to feel safe to speak up. Enhancing psychological safety within law firms will also increase awareness of the real origins of work-related pressures and the detrimental effects of the billable-units system on lawyers.

Foster a psychologically safe climate

Law firm leaders should develop a culture that counteracts the barriers brought on by formal hierarchical structures. When leaders behave in a way that minimises the perceptions of formal and informal hierarchies, this will improve perceptions of psychological safety and positively influence employee wellbeing.

Such behaviours will enable more open and honest communication among colleagues, shielding lawyers from stress and burnout.

Creating an environment of psychological safety in law firms, where errors can have high-stakes consequences, is challenging. Empathetic leaders who foster a learning culture and are able to recognise and respond to their own and others’ emotions, while providing support during challenging situations, contribute to improved perceptions of psychological safety.

Ultimately, these positive work environments protect lawyers from stressors and reduce turnover intentions, particularly among women.

Address unconscious bias

Women may be disadvantaged in the allocation and level of access to valuable resources that support them effectively in the development of their professional career and when coping with stress.

This could be due to the informal hierarchy in law firms as well as unconscious and gender biases that are present in legal practice. Law firm leaders should acknowledge that men and women use time differently, and address gender differences in how resources at work are allocated.

Leadership training in unconscious and gender biases, emotional regulation skills, self-awareness, empathy, and recognising when colleagues are struggling is essential.

Understanding the different ways in which individuals access resources in order to cope with stress will bring greater awareness of gender differences to law firms. Law firm partners who seek professional development in these areas are likely to have more positive working environments, resulting in improved employee wellbeing and reduced turnover.