Being Flexible With Each Other In Difficult Times: Let's Cool It With the Mandatory Videos

As someone who entered this profession in many ways as an outsider, I've never been fond of the rigid demands of etiquette and protocol in the legal profession. Most evolved when many of us were not welcome, and then acquired fixed status because they became part of the culture of our profession, its "tradition." Those who have a different perspective on what our shared culture and values might be are often silenced. Perhaps they just don't belong here if they don't respect the norms and values that have such a long rich history, even though no one similarly situated to them ever got a say in how those norms and values were identified and articulated.

Although I have deep respect for the role of the profession and the Courts, overly aristocratic notions of how a lawyer must appear and behave out of "respect" for the role and tradition of the profession have been a concern of mine from the very beginning. To me they far too often seem to be shallow bases to judge and shame each other for reasons that don't serve the true ends of the justice system. They often feel like superficial distractions that don't  reflect true merit, substance and integrity.

And often they can be harmful to those whose circumstances weren't considered or understood when they were created. In other words, far too often the burden of not being able to easily fit in with those visions of how a lawyer should look and act falls disproportionately at the feet of those who might not otherwise fit in as easily.

Enter the pandemic.

Suddenly our ways of doing things are indeed rapidly changing, at a time when we are in a situation that affects everyone (supposedly an "equalizer"), yet may have very different impacts depending on widely varying circumstances. This raises the potential to dramatically reinforce disparities if we proceed without sensitivity to this possibility.

Of course, it's a good thing that changes are being made to enable as many as possible of us to keep functioning both professionally and socially, but proceeding heedless of who may be adversely impacted by the new ways of doing things will risk those who already had the hardest time fitting in being the ones left out and/or harmed.

For instance, the sudden shift to expecting or even requiring people to participate in work, professional development, or social events via video (when the substance of what is being done doesn't truly require it) overlooks the many reasons why this may not be comfortable, possible or even safe for some. Not only do people have different comfort levels in this regard for good reason (at a time when a pandemic is triggering and intensifying existing mental health issues while also creating a risk for new ones), but people have very different spaces in which they are confined. It doesn't take a lot of imagination to appreciate that some people may be less comfortably situated than others. Some may have homes they are not comfortable sharing due to economic disadvantage, safety or privacy concerns (especially if they have had their personal space invaded or violated before and are therefore especially sensitive to those latter concerns). Some may not easily be able to find a visually acceptable private space due to the others who are in the home (perhaps the bedroom, as "unprofessional" as it may seem, is the only quiet space with sufficient internet connection for someone cohabiting with others who are using the other areas of the home). Some may not be able to ensure the privacy of the more vulnerable members of their home (e.g., very young children who have to be cared for even while work duties are performed). Some may have unsafe home environments with an ever-increasing level of tension due to the pandemic, e.g., with an unpredictable, dysfunctional and/or perhaps even abusive partner, and may therefore not feel safe or comfortable being visually available to their colleagues when they can't say for certain that their partner will be respectful of and allow them that video space.

The point is that people are in their homes enmeshed in all kinds of varying personal situations with all the heightened vulnerability which that may entail. Whatever their circumstances may be, it's none of the profession's business. It's never been our obligation to maintain our home and personal lives a certain way to be allowed to participate professionally, or to share those circumstances in a work context. Nor was there any chance to arrange our lives differently in anticipation of this sudden change in circumstances. Moreover, this doesn't simply affect lawyers (though I speak from that perspective); it has the potential to affect other participants (e.g., staff/litigants).

And to the extent that the privacy of those video sessions may not be assured (with some even being deliberately streamed and/or posted online), then an even wider array of well-being and safety considerations may arise (e.g., for those who have been targeted by others in the past and whose safety may actually be threatened by suddenly being forced into that kind of a wide-reaching public space unlike ever before with no opportunity to mitigate those dangers, or whose past fears in that regard may be triggered even if their actual safety may not currently be at risk as it was in the past) at a time when many are already especially emotionally vulnerable due to the isolation, confinement and fear caused by the pandemic.

Perhaps the answer is that those who can't suitably meet the requirements will just have to suck it up and expose themselves to the health risks involved in physically attending the workspace. After all, we will then have accommodated as many people as possible, and if there are some who don't quite "fit" our way of doing things, who can't meet those requirements, then unfortunately that's just unavoidable and they will not get the accommodations of which those who are better-situated can avail themselves.

My view: this can't be the answer either, at least not completely.

Yes, keeping the profession moving is a good thing, and, yes, those who work in essential areas may unfortunately be called upon to work in ways that aren't ideal, but shouldn't we first ask ourselves what's truly necessary before we force those who are already potentially the most marginalized within our professional spaces to be the ones who have to endure the greatest risks and disadvantages in order to maintain their ability to participate in the midst of a global crisis? Shouldn't we be minimally invasive rather than press ahead with one rigid way of doing things just because it is "preferred" by those who don't have the concerns and constraints that those others may? Shouldn't it matter that those most disproportionately impacted by more rigid and invasive requirements may be those who have already been most excluded?

Also from a public health perspective, shouldn't we do what's necessary to ensure that even those who are less ideally situated can remain at home so they needn't put public health at risk by venturing out into the workplace?

Perhaps the "insiders" in the profession don't realize the extent to which many "outsiders" already have to sacrifice so much of their comfort, well-being and perhaps even safety on a regular basis simply to navigate and fit within the existing culture, protocols and etiquette that were not informed very much if at all by their input or experiences.

And due to the failure to appreciate that reality, those "insiders" may also fail to appreciate how readily mandatory protocols and norms that may "only" have been oppressive before can quickly become crushing when the context suddenly shifts and they become more invasive, taking away the little bits of privacy and/or dignity some of us were able to hold onto before: collapsing our private lives, our personal spaces, our control over our own image, our ability to do what needs to be done to get through the day in our own way in the absence of prying eyes when the personal and professional unexpectedly collide.

So how should we do this? This is all happening so quickly. I get it. It's tough. Keeping things going is important. We can't do the kind of consultation and planning that (one would hope) would be done if major changes were contemplated in ordinary circumstances to assess the unintended impacts new procedures may have on wellness, safety, equality, diversity and inclusion. So here are my suggestions for how we should proceed in the meantime:

• Flexibility should be the rule: this is new territory for everyone. We can't imagine all the varying ways in which those around us may be affected and we need to recognize it may not be safe or comfortable for them to tell us. So new procedures whenever possible should allow for maximum flexibility without the need for explanation. For instance, if video meetings etc. are happening, then there should be options available for everyone to participate in a way that feels comfortable and safe to them without any questions or obstacles. That means allowing an audio only option (unless it's a situation where credibility is at stake and we truly have reason why we must see people's faces, as opposed to simply preferring to do so). This also means ensuring an option of adding a blank or false background so participants needn't invite us into their personal space. This further means ensuring the privacy of the recording to the greatest extent possible because we have no way of knowing the ways in which people's health and safety may be affected by a sudden change in how widely distributed their personal image is, and a global pandemic isn't the time to force people to have to also suddenly adapt to having to surrender their privacy to a far greater extent than ever before, with all the health and safety concerns this may involve. It means minimizing judgments and criticisms about the circumstances in which people "appear" (the bedroom may be all that's available; someone's only two or three suits may be at the office--so be it. It's time to get over rigid and harsh judgments and just focus on substance). Generally it means pro-actively expressing an openness to participants being able to raise concerns or delay non-essential matters if the available options aren't comfortable or safe for them.  

• Input should be sought from potential participants before procedures are developed and on an ongoing basis: there is no way those making these decisions are magically intuitively aware of all the diverse ways in which people may be affected by a proposed new way of doing things. A willingness to listen, learn and adapt is essential: we must have the humility to realize that any proposed procedures will have unintended consequences for those who are differently situated. Input should be sought (with the understanding that not everyone may currently feel safe and comfortable providing it, which is why flexibility is so important).

• We need to use our empathy and imagination rather than assume everyone is similarly situated: not everyone has a nice den in which to set up a camera, a large home in which it's possible to carve out visually private space, and a sense of comfort and safety to feel okay about inviting colleagues and other participants into their private life in an unprecedented way. Before creating procedures based on a set of assumptions about what this will involve for participants, some empathic imagination needs to be employed. What about those who are economically marginalized and have very limited space? What about those who disproportionately end up with the burden of care-taking obligations of dependents? What about those who are especially vulnerable and whose sense of safety and perhaps even actual safety may be jeopardized by suddenly having to surrender their privacy during an already vulnerable situation in an unprecedented invasive way? What obstacles might be in place that could prevent those who have concerns from raising them? How can we be flexible and compassionate to avoid disproportionately harming, burdening, and excluding those who have already been most marginalized? 

Deliberately exercising caution as we decide which norms and values must remain rigid and which can be flexible is more essential than ever, unless we want this pandemic to render our procedures even less inclusive than they were before. Yes, we are used to seeing each other's lovely faces, and surely it's "preferable" to continue to be able to do so. But as we've witnessed, this unprecedented situation requires us to rapidly do things differently than we have in the past. Our judgments about which things should be rigid and which should be flexible could have serious repercussions for the equality, inclusion, well-being, and even safety of those involved at a time when those affected are limited in their ability to share their concerns. Let's be as flexible as we can. Those of us who still have the option of working are lucky and I realize that there may be countervailing considerations to some of what I've expressed above which also need to be considered. But unless we want those who are "fortunate" enough to be able to keep working to be disproportionately composed of those who were most privileged and "fortunate" to begin with, we need to start showing some flexibility, compassion, and a willingness to rethink our impulses about how things "must" be done.

As always, please note that I am a lawyer, not a mental health professional of any kind. I have no expertise in trauma or mental health. Also, please note that any opinions and views expressed in this blog are solely my own and are not intended to represent the views or opinions of my employer in any way. For more information about the purpose of this blog, please see here and for a bit more information about my personal perspective on this issue, please see "my story" here

I am very grateful to have received a "Clawbie" Award for this blog (which reflects the importance of this topic): https://www.clawbies.ca/2019-clawbies-canadian-law-blog-awards/

For some of my external writing on this topic, see: 

• https://www.canadianlawyermag.com/news/opinion/a-more-inclusive-discussion-on-the-impact-of-trauma-on-lawyers-mental-health-is-needed/276166 
• https://www.cbabc.org/BarTalk/Articles/2020/February/Features/Speaking-Up-About-Trauma-and-Mental-Health    
• https://www.canadianlawyermag.com/news/opinion/changing-the-conversation/326240