Under pressure

For the majority of solicitors, stress is part of everyday life – whether that arises in the course of preparation and conduct of a court case, closing a corporate transaction, dealing with executors and beneficiaries or settling an awkward conveyancing transaction on time.  Coupled with demands of clients and deadlines are the pressures to make fee targets and, in the case of principals, to manage the business effectively.  

A certain amount of pressure is no doubt healthy for most professionals but a variety of risks arise when this gets out of control and individuals begin to function in a permanently stressed state. Consider the following claim example:

Example – The present

Mr Whyterabet is now sole principal of Whyterabet & Carroll. He became significantly busier following the untimely death of Mr Carroll six months ago.  The practice was heavily reliant on conveyancing business, although Mr Carroll had also undertaken some employment law work for several small companies.  Whyterabet required to bring himself very rapidly up to speed on the Accounts Rules, since Mr Carroll had been the Designated Cashroom Partner.

As a response to the requirement to pay out Mr Carroll’s capital in the business, efforts were made to find alternative, less expensive premises.  Whyterabet saw fee income halve, despite his attempts to take on even more business.  He realised that he could not afford to turn away any business and, in the evenings, attempted to catch up on the developments in employment law since 1971.  He also wished to take on an assistant, but felt that he could not afford to take on someone experienced – however, neither had he any time to train someone new. With all of these problems on his mind, Whyterabet settled six transactions on Friday 13th June.  

The future

Three years later the business is on the up and up, with two new partners and a larger office. Just when everything seems to be going particularly well, a problem comes to light concerning a remortgage security which was one of the transactions Whyterabet had completed on Friday 13th. The bank discovered the defect in the security when attempting to sell the property following repossession.  A claim is intimated to the Master Policy insurers.

The reason for the claim may have been inserting an incorrect description of the property secured, but was the underlying cause of that error connected with the background events in the six months preceding settlement? Whyterabet certainly found it difficult to understand how he could have made the mistake. He was always meticulous about the preparation and checking of securities. Could stress have been a factor?

Stress as underlying cause of problems?

Stress can have a dramatic impact on efficiency, productivity and conduct. Could stress therefore be the cause, or one of the causes, of some instances of otherwise unexplained behaviour which might explain certain complaints and claims resulting from, for example –

• Errors of judgment despite long experience
• Abruptness or rudeness to clients or to other solicitors
• Misleading clients
• Misappropriation of funds

Inability to focus on work – errors of judgment

If an individual is suffering from stress, they are exposed to a situation where their normal behavioural patterns are altered.  Any such change increases the likelihood of an individual acting out of character. In a professional context, this may result in unexpected errors of judgment and this, sometimes in combination with unusual circumstances, can result in claims.

Inability to process tasks efficiently – reduced efficiency

All solicitors require to be able to prioritise a number of tasks during the course of every working day.  It is part of their ‘job description’ to be able to balance competing demands on time. That ability may be compromised through overwork or lack of experience.  If an individual is distracted during the course of the working day, inevitably their productivity will suffer which in turn can be a cause of unexplained delay and missed critical dates.

Absence

Some individuals may not be able to handle stressful situations as well as others.  If they feel that they will not be afforded a sympathetic hearing and are unable to articulate their concerns to others, they may begin to show a higher level of absence than colleagues.

Breakdown

In the worst scenario, someone suffering from subjectively high levels of stress may feel unable to continue working.  This may happen if warning signs, such as increased absences, higher levels of errors and reduced productivity, are ignored.  An employee (or partner) on long-term absence is a problem for a practice. The work done by that individual will require to be redistributed, which may place a greater burden on colleagues. The practice loses the benefit of that individual’s skills and expertise. In some unfortunate cases, breakdowns have resulted in frauds and deceptions being committed.

Risk awareness and risk control

A stressful circumstance is one with which you cannot cope successfully (or believe you cannot cope) and which results in unwanted physical, mental or emotional reactions. Stress is your reaction to an inappropriate level of pressure.

There are a number of steps that can be taken to attempt to ensure that a high pressure work environment, such as a busy practice, does not become stressful to the point of causing ill health either to principals or staff.

Recognise the symptoms (in yourself and others):

• Poorly explained absences
• Sudden downturns in productivity
• Abnormal mood swings
• Physical symptoms e.g. excessive fatigue, headaches, stomach pains

As with all aspects of risk management, awareness of the risks is crucial. How aware are you of the risks? Are you able to recognise stress? Do you take appropriate action?

Assessing workloads

How well do you assess workloads, as opposed to simply measuring hours worked?

Analysing complaints, claims etc

Is a comprehensive record maintained and analysed of instances of complaints, claims, re-work and ‘near misses’ to identify problem areas, including (possible) stress?

Considering sickness/absence records

Does analysis of records reveal problems within a particular area of the practice?

Fear culture?

What is the culture of the practice or of the department or team in terms of attitude to honest mistakes or asking for help? Is everyone able, willing and encouraged to admit to mistakes or to needing help or are people afraid to own up and more inclined to cover the situation up?

Stress management

Taking action may include the following issues:

• Address culture issues
• Review individuals’ responsibilities
• Encourage a system of reporting difficulties
• Make sure regular performance reviews cover stress issues
• Take advantage of assistance such as LawCare, provided though the Society (see below)

Learning to cope with stress is not a substitute for identifying the underlying causes and dealing with them at source.

As with all areas of effective risk management, the  benefits are likely to be realised in more than one aspect of the practice. As well as minimising the risks which could result in complaints or a negligence claim against the practice, improved job satisfaction and morale ought to result as well as improved business efficiency.

LawCare – Health Support and Advice for Lawyers

The following is an extract from LawCare’s website and literature:

“As a service to Solicitors and Barristers The Law Society of England and Wales Charity Fund and the Bar Council have funded LawCare, an advisory service to help Solicitors and Barristers, their staff and their immediate families to deal with health problems and related emotional difficulties. The service was subsequently extended to Scotland by arrangement with their Law Society.

We offer the opportunity to discuss health issues and problems which are interfering with, or have the potential to interfere with, work performance and/or family life – and to seek help in resolving the problem in its early stages.

Help and support is accordingly available to those who are suffering stress or depression as a result of their work, family or financial problems, or who have an alcohol drug or other misuse or dependency problem. Ignoring problems and hoping they will go away is no solution. The first step is to recognise the existence of a problem. The second is to seek objective and non-judgmental expert advice. This is where LawCare comes in.

Our service:

• Is strictly confidential between all parties
• Takes the form of an initial telephone assessment, advice and/or referral where necessary
• Is available to all Solicitors and Barristers, their staff and immediate families
• Is provided as a free service, although any subsequent professional counselling or treatment will normally have to be paid for unless available on the National Health Service or covered by private health insurance”

LawCare contact details
We have three Freephone Helplines to help with your health problems They are staffed from 9.00 a.m. to 7.30 p.m. each weekday and from 10.00 a.m. to 4.00 p.m. on Saturdays and Sundays.”

Telephone 0800 279 6869 or e-mail help@lawcare.org.uk or help@LawCare.org.uk.

The information in this page is (a) intended to provide guidance on matters of practical risk management and not on issues of law (b) necessarily of a generalised nature and (c) not intended to endorse or recommend any particular product or service. It is not specific to any practice or to any individual and should not be relied on as stating the correct legal position. Alistair Sim is Associate Director, Professional and Financial Risk Division, Marsh UK Limited