Opinion: Gillian Mawdsley

Solicitors come in all sizes: the product of their education, legal or otherwise, background and culture. What is in common is the requirement for adherence to professional responsibilities and values. These must be upheld when representing the best interests of their client. Responsibility is theirs; that accountability to their client is shared with their employers or organisations.

When graduating in law, few of us really know what to expect. Equipped with our black letter law degrees, and the acquisition of softer skills such as teamwork through the Diploma, the trainee is now “oven ready” (a term used since before Brexit to describe the student with the Diploma). Does that allow them to cope with the harsh realities of practice? 

Scanning press headlines today reveals stories of sexual abuse (historical and current), domestic violence, child cruelty, and extreme violence exacerbated by the stress of the cost of living crisis and poverty. Today’s solicitor must operate effectively within that ever-changing and challenging environment. Feelings of despondency, inadequacy or darkness may result, affecting sleep and work. These previously unrecognised symptoms may amount to vicarious trauma (“VT”). As legal professionals, being in control, they just get on with the day job of advising clients.

No change to behaviour is required – or is it?

The British Medical Association defines VT as “the process of change resulting from empathetic engagement with trauma survivors. Anyone who engages empathetically with survivors of traumatic incidents, torture, and material relating to their trauma, is potentially affected”. The police and healthcare as professions earlier recognised the effect of VT on staff. Slowly, perhaps, the legal profession is recognising that VT exists, though resistance is encountered from those who consider that lawyers today are spoon-fed and should “man up”.

Support for VT is now seen more widely. In 2018, the Scottish Government established a National Trauma Training Programme with a cost to date of £9.6 million. It supports development, practice, and implementation of trauma-informed practice. The societal need for trauma-informed practice is endorsed in the current Victims, Witnesses, and Justice Reform (Scotland) Bill (part 2). Section 69 defines “trauma-informed practice” as “a means of operating that (a) recognises that a person may have experienced trauma; (b) understands the effects which trauma may have on the person; and (c) involves adapting processes and practices, based on that understanding of the effects of trauma, to seek to avoid, or minimise the risk of, exposing the person to (i) any recurrence of past trauma, or (ii) further trauma”.

An excellent definition. However, the “person” focuses on the complainer. It is not bilateral in considering the experience of, and support required for, the solicitor. Enter VT and the legal profession’s needs. It is essential to accept that VT training is required.

Who should be required to provide VT training? It is a collective responsibility of all the legal fraternity.

The universities come first. Experience has shown that first year students are not immune from VT. They may struggle with the concepts of criminal law, endorsed in cases such as R v Brown [1993] UKHL 19 (sadomasochism). Pro bono work advising clients in a law clinic too may impact, as realisation dawns that clients’ problems are not textbook problem questions neatly solved. Students and lawyers experience flashbacks and post-traumatic stress.

Universities with under- or postgraduate curricula have an opportunity to familiarise students with VT, raising awareness of its effects, while signposting support routes.

Legal education does not stop there. The profession requires completion of CPD requirements. Regulators therefore can play a part in requiring that both in qualifying and when maintaining practice requirements, the solicitor continues to have the skills successfully to discharge their responsibilities to their clients. VT training then assists in achieving that trauma-informed practice envisaged by the bill.

Society today is risk-focused, with obligations, personal and professional, to maintain the safety of our legal workplaces. Managing potential liability from VT lies within the scope of that safety provision. Developing a VT risk policy is required, with provision of VT training and demonstrating good management practice with identified supervision and support routes. A one-off course does not provide the final solution. It is about continuing practice, honesty and reality.

The impact of Covid-19 examined the way we worked, but not always negatively. That opportunity allowed a reboot. Apply this to the existence of VT within law spheres and its potential impact on the solicitor.

Whether in person, or with colleagues, firms or institutions, we are responsible for ensuring that the existence and impact of VT on us is understood and support provided. Ensuring that we manage VT successfully can only enhance the reputation and effectiveness of the Scottish legal profession.