Mental Health Legal Issues
Content
20-year veteran of the Federal Court bench wants to break open this stigma,
particularly in the legal profession. At a National Wellness for Law Forum in
Canberra this month, Justice Marshall talked openly about his experience of
depression, and how a punishing work schedule contributed to his illness.
Shane Marshall: The full complement of judges in the Federal Court in Victoria
was 13. We were running at 10. And I was looking after Tasmania as well. And I
remember coming back from a holiday, coming back sick, and just continuing to
work sick, being in a hotel room in Hobart and not been able to sleep because
every time I coughed it felt like there was a knife going through my back, and
then having to sit there and listen to submissions and then write the judgement.
It was just relentless.
Di Martin: The legal profession is renowned for high rates of mental illness.
Surveys show that 1 in 3 lawyers has experienced depression due to overwork,
intense pressures and deadlines. Justice Marshall has also witnessed bullying in
his courtroom.
Shane Marshall: Unfortunately what I have seen male senior counsel do to
female junior solicitors is to embarrass them and admonish them in front of the
court for handing out the wrong document or giving them the wrong document.
To embarrass the QC I said, 'Oh, thank your junior, she is doing a wonderful job in
assisting you.' [laughs] But I think the court room still isn't totally a safe place in
which to do work unfortunately.
Di Martin: It's a striking observation from a sitting judge.
After the speech, Justice Marshall told Background Briefing that bullying has
extended to the bench, including by Federal Court judges.
Shane Marshall: There's been instances where I have observed members of full
courts a long time ago perhaps have a bit too much of a robust attitude to
counsel, especially very junior counsel, and I have in the past made a comment
to them that I didn't think that that was the appropriate way to go, that it wasn't
fair on them, and that we had power, immense power over them, and we could
shatter somebody by our reaction to them, especially a junior practitioner.
Di Martin: How was that comment received?
Shane Marshall: Not very well. [laughs]
Di Martin: Do you think it made a difference?
Shane Marshall: Well, there was less intervention in the afternoon.
Di Martin: This is Justice Shane Marshall's first interview about high rates of
mental illness in the law. But as we hear later in the program, it is also believed
to be the first time a sitting Australian judge has openly discussed his own
experience of depression on the bench. Justice Marshall says the law's already
intense pressures are getting worse.
Shane Marshall: Undoubtedly. Undoubtedly. One is almost tempted to go to law
school and put up a sign up, 'Beware: toxic profession.' [laughs]
Justice Shane Marshall specialised in industrial relations at the bar before
becoming a Federal Court judge 20 years ago.
Shane Marshall: I thrived at the bar, really enjoyed the bar. I found aspects of
coming to the bench very difficult, and those were the subject of most of the
discussions between myself and the psychologists.
Di Martin: Justice Marshall was appointed by the Keating government to a newly
created Industrial Relations Court. But it was soon abolished by an incoming
Howard government, and Justice Marshall suddenly found himself adjudicating
unfamiliar law in a sometimes hostile environment.
Shane Marshall: My whole life as a solicitor, barrister and even as a judge up to
then apart from two refugee review cases was IR. So I had the weird experience
of sitting in cases where council was reminding me of propositions that I had
never heard of, and the learning curve was exponential. And there was also a
feeling in some of the legal establishment that this person who had come from
an industrial relations background, who acted even worse when he was at the
bar on the union side of the fence, had no right being on the Federal Court when
there were silks around that coveted that job. So there was a lot of whispering
and I suppose people who weren't very happy about that.
Di Martin: You talked about overwork being one of the reasons for your mental
illness. How have you dealt with that within the workplace?
Shane Marshall: I was just too proud to go to the Chief Justice and say I need
help. Part of that was just the way I was brought up. Dad was a wharfie and Mum
was a migrant factory worker. I was taught never to show any sign of weakness.
If there was an issue, you just tough it through. So it was very difficult to admit
there was something wrong. I had a very supportive doctor who just threatened
to drag me to a psychologist connected to his practice if I didn't make the first
appointment. And but for that I probably would never have gone.
Di Martin: If you've found it difficult, how did your fellow jurists respond to your
disclosure?
Shane Marshall: Most of them pretty well. There's a couple I'm not sure, they
haven't spoken to me about my decision to go early or anything to do with the
publicity about coming out. I don't know whether that's disapproval or whether
they find it difficult to deal with it, or I have inadvertently offended them in some
other way.
Di Martin: What's your assessment of where the legal profession finds itself in
tackling the high rates of depression and anxiety within its own ranks?
Shane Marshall: I'm really concerned about where the legal profession is
heading. I hear stories anecdotally about seasonal clerks, these are people who
are law students going into work for law firms where they're…I thought they
were just supposed to go and watch and observe what happened...being abused
by partners for doing work that is not up to the standard that the partner wanted
and having documents ripped up in front of them.
I mean, I've also heard anecdotal stories of partners screaming at lawyers, I've
heard gutsy young kids, including one I mentored, going to a top tier law firm
and saying, 'I was forced to work the last two weekends. There is an industrial
award, this is what I am entitled to and you've got to pay me overtime for this
period.' And the response by a senior associate was, 'You can put that to the
partner of our section at your peril. If you expect this firm to comply with that
award you've got no future here.' Now, that's a major top tier law firm breaching
the industrial law of the country.
Di Martin: Is this the norm?
Shane Marshall: It's hard for me to say it's the norm. There's enough anecdotal
evidence from the people I mentored and from former associates to say that
there's a problem.
Di Martin: What would that indicate needs to happen?
Shane Marshall: I think it starts at law school. I think there needs to be more
emphasis on subjects on mindfulness and subjects on mental health and wellbeing. And I also think it's got to come from the very top, from the managers of
the huge law firms. The problem is many of them are mega-firms with
international headquarters.
Di Martin: Just spell out how that makes it difficult.
Shane Marshall: Got hundreds of partners, and I was told that it's very complex
because the particular person said that their firm had international headquarters
in London but it was something they were starting to become alarmed by and
needed to reassess.
Di Martin: And did they discuss what they were alarmed by?
Shane Marshall: Yes, by the growing numbers of mainly young lawyers coming to
them from law school with issues and developing issues and not responding well
to pressures of billable hours and the like.
Di Martin: Do you see this issue getting worse?
Shane Marshall: Undoubtedly. Undoubtedly. I think it's almost…one is almost
tempted to go to law school and put up a sign up, 'Beware: toxic profession'
[laughs]. It's all very well for me to say that now that I'm on the way out, but
things are definitely much tougher and this is a space that needs to be talked
about a lot more.
Shane Marshall: Justice Shane Marshall, who is now on leave pending his
retirement later this year.
particularly in the legal profession. At a National Wellness for Law Forum in
Canberra this month, Justice Marshall talked openly about his experience of
depression, and how a punishing work schedule contributed to his illness.
Shane Marshall: The full complement of judges in the Federal Court in Victoria
was 13. We were running at 10. And I was looking after Tasmania as well. And I
remember coming back from a holiday, coming back sick, and just continuing to
work sick, being in a hotel room in Hobart and not been able to sleep because
every time I coughed it felt like there was a knife going through my back, and
then having to sit there and listen to submissions and then write the judgement.
It was just relentless.
Di Martin: The legal profession is renowned for high rates of mental illness.
Surveys show that 1 in 3 lawyers has experienced depression due to overwork,
intense pressures and deadlines. Justice Marshall has also witnessed bullying in
his courtroom.
Shane Marshall: Unfortunately what I have seen male senior counsel do to
female junior solicitors is to embarrass them and admonish them in front of the
court for handing out the wrong document or giving them the wrong document.
To embarrass the QC I said, 'Oh, thank your junior, she is doing a wonderful job in
assisting you.' [laughs] But I think the court room still isn't totally a safe place in
which to do work unfortunately.
Di Martin: It's a striking observation from a sitting judge.
After the speech, Justice Marshall told Background Briefing that bullying has
extended to the bench, including by Federal Court judges.
Shane Marshall: There's been instances where I have observed members of full
courts a long time ago perhaps have a bit too much of a robust attitude to
counsel, especially very junior counsel, and I have in the past made a comment
to them that I didn't think that that was the appropriate way to go, that it wasn't
fair on them, and that we had power, immense power over them, and we could
shatter somebody by our reaction to them, especially a junior practitioner.
Di Martin: How was that comment received?
Shane Marshall: Not very well. [laughs]
Di Martin: Do you think it made a difference?
Shane Marshall: Well, there was less intervention in the afternoon.
Di Martin: This is Justice Shane Marshall's first interview about high rates of
mental illness in the law. But as we hear later in the program, it is also believed
to be the first time a sitting Australian judge has openly discussed his own
experience of depression on the bench. Justice Marshall says the law's already
intense pressures are getting worse.
Shane Marshall: Undoubtedly. Undoubtedly. One is almost tempted to go to law
school and put up a sign up, 'Beware: toxic profession.' [laughs]
Justice Shane Marshall specialised in industrial relations at the bar before
becoming a Federal Court judge 20 years ago.
Shane Marshall: I thrived at the bar, really enjoyed the bar. I found aspects of
coming to the bench very difficult, and those were the subject of most of the
discussions between myself and the psychologists.
Di Martin: Justice Marshall was appointed by the Keating government to a newly
created Industrial Relations Court. But it was soon abolished by an incoming
Howard government, and Justice Marshall suddenly found himself adjudicating
unfamiliar law in a sometimes hostile environment.
Shane Marshall: My whole life as a solicitor, barrister and even as a judge up to
then apart from two refugee review cases was IR. So I had the weird experience
of sitting in cases where council was reminding me of propositions that I had
never heard of, and the learning curve was exponential. And there was also a
feeling in some of the legal establishment that this person who had come from
an industrial relations background, who acted even worse when he was at the
bar on the union side of the fence, had no right being on the Federal Court when
there were silks around that coveted that job. So there was a lot of whispering
and I suppose people who weren't very happy about that.
Di Martin: You talked about overwork being one of the reasons for your mental
illness. How have you dealt with that within the workplace?
Shane Marshall: I was just too proud to go to the Chief Justice and say I need
help. Part of that was just the way I was brought up. Dad was a wharfie and Mum
was a migrant factory worker. I was taught never to show any sign of weakness.
If there was an issue, you just tough it through. So it was very difficult to admit
there was something wrong. I had a very supportive doctor who just threatened
to drag me to a psychologist connected to his practice if I didn't make the first
appointment. And but for that I probably would never have gone.
Di Martin: If you've found it difficult, how did your fellow jurists respond to your
disclosure?
Shane Marshall: Most of them pretty well. There's a couple I'm not sure, they
haven't spoken to me about my decision to go early or anything to do with the
publicity about coming out. I don't know whether that's disapproval or whether
they find it difficult to deal with it, or I have inadvertently offended them in some
other way.
Di Martin: What's your assessment of where the legal profession finds itself in
tackling the high rates of depression and anxiety within its own ranks?
Shane Marshall: I'm really concerned about where the legal profession is
heading. I hear stories anecdotally about seasonal clerks, these are people who
are law students going into work for law firms where they're…I thought they
were just supposed to go and watch and observe what happened...being abused
by partners for doing work that is not up to the standard that the partner wanted
and having documents ripped up in front of them.
I mean, I've also heard anecdotal stories of partners screaming at lawyers, I've
heard gutsy young kids, including one I mentored, going to a top tier law firm
and saying, 'I was forced to work the last two weekends. There is an industrial
award, this is what I am entitled to and you've got to pay me overtime for this
period.' And the response by a senior associate was, 'You can put that to the
partner of our section at your peril. If you expect this firm to comply with that
award you've got no future here.' Now, that's a major top tier law firm breaching
the industrial law of the country.
Di Martin: Is this the norm?
Shane Marshall: It's hard for me to say it's the norm. There's enough anecdotal
evidence from the people I mentored and from former associates to say that
there's a problem.
Di Martin: What would that indicate needs to happen?
Shane Marshall: I think it starts at law school. I think there needs to be more
emphasis on subjects on mindfulness and subjects on mental health and wellbeing. And I also think it's got to come from the very top, from the managers of
the huge law firms. The problem is many of them are mega-firms with
international headquarters.
Di Martin: Just spell out how that makes it difficult.
Shane Marshall: Got hundreds of partners, and I was told that it's very complex
because the particular person said that their firm had international headquarters
in London but it was something they were starting to become alarmed by and
needed to reassess.
Di Martin: And did they discuss what they were alarmed by?
Shane Marshall: Yes, by the growing numbers of mainly young lawyers coming to
them from law school with issues and developing issues and not responding well
to pressures of billable hours and the like.
Di Martin: Do you see this issue getting worse?
Shane Marshall: Undoubtedly. Undoubtedly. I think it's almost…one is almost
tempted to go to law school and put up a sign up, 'Beware: toxic profession'
[laughs]. It's all very well for me to say that now that I'm on the way out, but
things are definitely much tougher and this is a space that needs to be talked
about a lot more.
Shane Marshall: Justice Shane Marshall, who is now on leave pending his
retirement later this year.
