Is empathy a skill lawyers need?

“Empathy, I would posit, is the most important ingredient of being a good lawyer.”

Empathy is not sympathy, and it does not entail feeling sorry for clients, feeling sad about their situation nor taking on their psychosocial needs, Szigeti says.

Szigeti is principal lawyer at Anita Szigeti Advocates, a firm focused on mental health and the law. She is president and founder of the Law and Mental Disorder Association and co-author of Guide to Mental Disorder Law in Canadian Criminal Justice.

Szigeti represents clients with serious mental health and addiction issues, who are often faced with overwhelming state power.

Empathy allows a lawyer in her situation to appreciate the experience of losing autonomy, being locked in psychiatric hospitals – sometimes in seclusion – and injected with “powerful, mind-altering psychiatric medicine” against their will, she says.

“To advocate their position, we have to understand and appreciate their position. In order to do so fearlessly and zealously, we have to know the impact that state control has over the person.”

“If we come at the case from a different place, without being able to see the case from the client’s perspective, then we become part of the system and the machinery depriving people of rights. If we come at these cases with a paternalism, where we see the clients as less than autonomous, where we see the clients as lacking decisional capacity, where we view the clients as people who need ‘help’ or ‘treatment’ or ‘hospitalization’ for their own safety, then we risk becoming part of the state against them.”

Extending empathy to colleagues in the legal profession

Empathy as a necessary component of professionalism also extends to colleagues, especially during a pandemic that has imposed “severe burdens and disruptions” on many lawyers, says Szigeti. Rules of professional conduct dictate certain professional courtesies and civility in communications, but lawyers should follow empathy and realize when a lapse in these standards may be a symptom of something deeper occurring out of sight.

“We are seeing more uncivil communication. We are seeing ill-tempered lawyers. We’re seeing failure to respond, failure to communicate. People fall off the radar. They're overwhelmed.”

“We also have significant mental health and addictions in the practicing bar and particularly among sole practitioners. Particularly in the criminal-defence bar. Particularly in the mental-health bar.”

 “True civility” is achieved with empathy as a tool, she says. When dealing with opposing counsel, there is nothing wrong with offering a “listening ear” and supporting colleagues in these “strange, strange times.”

Knowing your limits

But there is a limit. When dealing with clients, colleagues or others, Szigeti notes that too much empathy can be incapacitating.

“If you give yourself a to-do list that includes trying to address every inequity your client has faced, you'll be paralyzed into inaction,” she says. “You can burn yourself out if you misunderstand what we mean by empathy, and you take your client’s problems on personally, and you're haunted by them, and you try and fix them and you internalize them.”

“It will create anxiety and depression, hopelessness and helplessness in you. And then you're useless to your clients. So, you really got to be careful.”

While empathy is often discussed as an outward-facing practice and perception of others, it is important to shine that light back on yourself too, says Naomi Sayers, a sole practitioner based in Sault Ste. Marie, Ont.

“The more my practice grows, the more I realize I also have to be empathetic towards myself,” says Sayers.

Practising public, Indigenous, administrative, corporate and criminal law, she also offers services related to duty to consult and accommodate in Aboriginal Law, litigation, professional discipline, workplace investigations and alternative dispute resolution. Sayers is called in Ontario and Alberta and has a wide range of clients from all over the country.

“Oftentimes, what lawyers don't talk about – especially Indigenous women lawyers, and especially Indigenous women solo-practitioners, who are practicing in a northern or rural areas – the extent of the abuse is different,” she says.

“The one thing that we have to be careful of is narratives around kindness.”

While lawyers often say, “be kind to everybody, your reputation will follow,” do not tolerate abuse, including from other lawyers, says Sayers.

Growing up, her mother taught her that she did not have to be everyone’s friend, but she must be kind. She balances that lesson with the kindness she also owes herself.

“If my relationship with another lawyer is going to affect me personally to the point that I can't uphold my values and be kind and practice with integrity and stick to my ethics, I cannot have that person in my life.”

“Other times, there will be lawyers where you will have to interact with them, right? Because they're opposite of you. Or they're always opposite of you, because they represent a client, and you represent a client and there's ongoing issues… And in that moment, always be kind because that's the bare minimum that we can do.”

As a sole-practitioner, opportunities for advice from a senior lawyer are not as readily available, as they may be for a law firm lawyer, says Sayers. She has found the Law Society of Ontario’s practice management helpline helpful for inquiries related to the Rules of Professional Conduct.

“I just asked them generally, ‘is there anything else I should be thinking about?’ And I tell them what I've already done and what sort of rules I'm thinking of and if there's anything else that I should consider,” she says. “Sometimes, they just affirm what I'm doing and that there’s nothing more that I can do. And other times, they point to a rule that I didn't think about.”