Dame Margaret Bazley’s report on the sometime goings-on at Russell McVeagh, and its ‘work hard, play hard’ culture, describes a state of affairs that is not peculiar to that firm. Dame Margaret’s report is in uncomfortable harmony with the New Zealand Law Society’s 2018 Legal Workplace Environment Survey, which shows the local legal environment as one where bullying, discrimination and a lack of civility characterise the behaviour of too many lawyers and judges.

So what is happening here? Is it that the law attracts more than its fair share of people who are prone to such behaviours? Possibly. My view is that law firms and other legal institutions generally reflect the wider culture. The systems of government and commerce in most western countries treat workplaces as silos of profit. The importance of the life of the individual outside of work is secondary; while it may be given lip service, when a clash of priorities occurs it is generally the individual’s priorities which are sacrificed. The Bazley report and the Law Society survey suggest that the profession and government ought to closely consider change and what a new legal culture might look like. There are some useful pointers.

Ethical culture

Stephen Sedley has observed that ethical culture within the legal profession counts more than ethical codes; while ethical culture is far less definable, it is “increasingly far more significant” (Stephen Sedley, Ashes and Sparks, Essays on Law and Justice, Cambridge University Press, 2011 at 299). What underlies this observation is a notion of what is damaging to the law itself, captured in spirit by s 3 of the Lawyers and Conveyancers Act 2006, which speaks of public confidence in the profession and recognition of the professional status of lawyers. The law and ethical rules contain ample protection against discrimination and abuse. But laws and rules do not change an embedded culture, particularly in a small profession, where raising one’s head above the parapets to complain can have unpredictable career consequences. Those whose interests are served by perpetuating the current culture count on this deterrence, and so they are lazy about doing anything about changing what is hidden in plain sight.

For example, against the seeming success that being part of a large commercial law firm brings, there are other factors. Some of these factors have been brought out by a recent study in the United States. In this study, things commonly associated with success in the law, such as high incomes and prestigious partnerships or positions, were found to have little correlation to individual happiness and well-being. This study reported that lawyers in lower-paying public service jobs had higher levels of well-being and job satisfaction (they also drank less alcohol than their higher income peers; see Lawrence S Kreiger and Kennon M Sheldon, “What Makes Lawyers Happy: A Data-Driven Prescription to Redefine Professional Success”, 83 Geo. Wash. L. Rev. 554 (2015)).

Outdated style

The old “do as you’re told” style of leadership is outdated and destructive. Leaders who are domineering, threatening or intimidating diminish employee productivity by triggering the release of cortisol and adrenaline into employees’ brains. These hormones and neurotransmitters shut down the prefrontal cortex region of the brain (the part that engages when work is undertaken), and thereby inhibit their ability to do their best work. This also creates a mental state that is ripe for mistakes. In contrast, when leaders create work environments that consistently value, esteem and nurture their employees, this triggers brain chemistry that is rich in the neurotransmitters serotonin, oxytocin and dopamine. In addition to enhancing focus, collaboration and resilience, the presence of these compounds correlates with higher levels of employee engagement. This is significant because engaged employees become more committed to the success of their organisations and are much more likely to give their highest levels of discretionary effort when performing legal work (P Meshanko, The Respect Effect: Using the Science of Neuroleadership to Inspire a More Loyal and Productive Workplace McGraw-Hill, 2013).

The culture of every workplace impacts upon the development of young people entering it – most young people will understand that conforming to that culture is vital if they are to progress within a firm. Socialisation – acquiring the norms and skills to function in society – primarily takes place in the peer group which, after high school or university, is the workplace. Longitudinal neuroimaging studies demonstrate that the young person’s brain continues to mature well into the 20s (Steven Pinker, The Blank Slate, London, Penguin ed, 2002 at 390). The frontal lobes, home to key components of the neural circuitry underlying executive functions such as planning, working memory, and impulse control, are among the last areas of the brain to mature; they may not be fully developed until halfway through the third decade of life. (Sowell ER, Thompson PM, Holmes CJ, et al, “In vivo evidence for post-adolescent brain maturation in frontal and striatal regions”, Nature Neuroscience, 1999 (2):859–61) This age group is when most lawyers are in the dawn of their professional lives.

As a profession, we ought to take guidance from this research, and take stock of how we treat each other, particularly young lawyers. This means we must work, and work hard, to make legal workplaces friendly to individuals of all types and ages; we must also end discrimination against and the poor treatment of women, young people and minorities. It is in the interests of the profession and of every organisation where lawyers work, including the courts and in government, that such workplace reform occurs. It is my view that an essential aspect of changing the culture of the legal profession is for lawyers to share a vision of the law as a vehicle for promoting values that are compatible with justice and fairness for all individuals. (Paraphrasing from Stephen Reinhardt, “The Role of Social Justice in Judging Cases”, 1 U St Thomas LJ 18, 20 (2003)).

Warren Pyke wcpyke@gmail.com is an Auckland barrister specialising in appeals, banco, professional discipline and negligence.