Time-billing a legal health risk

LAW firms that put pressure on their staff to meet billing targets could be in breach of occupational health and safety laws, and could find themselves the target of criminal legal action, a seminar in Perth was told this week.

Norton Rose partner Maria Saraceni told the seminar that upcoming amendments to occupational health and safety laws would impose a more onerous duty on partners to look after the health and wellbeing of their lawyers.

This discussion coincides with the launch of the Law Society of Western Australia’s ‘Report on Psychological Distress and Depression in the Legal Profession’, which examines the increasing incidence of depression, anxiety and fatigue among law students and lawyers.

Report co-author and barrister Christopher Kendall said lawyers had the highest incidence of depression of all the professions and were more likely to resort to alcohol and drug use.

“This issue has been ignored for far too long and has been silenced through ignorance or prejudice and we are losing people that this profession needs,” Dr Kendall said.

The practice of time billing and hourly targets, in particular, was criticised by WA Supreme Court chief justice Wayne Martin late last year.

“It discourages the active and detailed supervision of junior staff, it discourages collegiality and mutual cooperation between colleagues and it reduces quality of life,” Mr Martin said.

Mallesons Stephen Jaques solicitor Michael Robbins told the seminar that billing targets were causing young lawyers to view their worth in six-minute intervals.

“Law firms are a business; in order to be profitable the young lawyer must make enough money, not only to cover their own salary and their own overheads, but also make money for the firm,” Mr Robbins said.

“It is often reported that having a billable target of 6.5 hours, which is not uncommon for a large firm, can mean that a lawyer will have to spend 12 hours in the office.”

Some firms, such as Lavan Legal, are switching their focus to ‘fixed-price’ billing to achieve greater profitability and relieve lawyers of time-billing pressures.

Lavan Legal managing partner Greg Gaunt said timesheets could promote lawyer inefficiency.

“You often find that people will spend an inordinate amount of time on a particular job because the perception is that they need to fill up their timesheet,” Mr Gaunt told WA Business News.

“Instead of writing work off, the focus should be on doing the work, turning it around efficiently and getting good client feedback.”

While law firms have a “moral obligation” to look after wellbeing of their lawyers, Ms Sarancini said that, more importantly, firms had a legal obligation.

“When we think of occupational safety and health we often think of blue-collar safety, the loss of a leg, the loss of an eye, the loss of a life, but what’s missing is the understanding of the ‘health’ part,” she said.

“The health part deals with emotional health, psychological health and wellness generally and that is the part of occupational safety and health that needs to be looked at.”

Ms Saraceni said the Occupational Health and Safety Act required an employer to provide an employee with a safe place of work and a safe system of work.

“Billable hours I suggest is part of a ‘system of work’ and when lawyers are given billing targets or a blackberry so they can be accessible 24 hours a day, I ask, what is the law firm doing to meet its obligations under the Act?” she said.

Failing to comply with the Act can result in a criminal record and a substantial penalty and with amendments to the laws on the agenda; firms will need to be more aware of their obligations.

“It’s possible that, come January 1 2012, partners in law firms will have a positive duty to ensure that the business does the right thing by its lawyers and there will also be personal liability on those officers,” Ms Saraceni said.

“The fact that no-one has gotten done for breach of the health and safety laws, doesn’t mean it’s not going to happen.”