"The impact is being felt both in terms of the considerable workloads and demands, as well as grappling with the current and future implications of the inquiry. It's about having robust systems in place for effectively managing matters such as this, including the potential impacts on people."

While fatigue experts despair that truck drivers can work 14-hour days, in legal circles days can expand to be 30 hours long by working all day, all night and all through the next day.

At the top-tier firms, where clients can be billed anywhere between $250 or $950 per lawyer per hour, the hours worked can make investment banking look cushy.

Rite of passage

One lawyer who has worked for a top-tier firm says he knows of one case when a senior lawyer was sent home because she was shaking from exhaustion and fatigue.

Allens managing partner Richard Spurio says the royal commission process has been demanding for all involved. Louie Douvis

Of course long hours at law firms are nothing new.

Working late into the night – if not through it – is a rite of passage for junior lawyers smart and ambitious enough to be accepted into a top-tier law firm. And the royal commission's demands for quick turnarounds were extreme, which made it hard to manage.


But across the profession the WorkSafe Victoria investigation has prompted some to wonder if the no-rules culture should change, particularly as the path to riches that is the partner track is taking longer and longer to complete.

King & Wood Mallesons' Berkeley Cox has said the firm didn't respond quickly enough to the increased workload and that the firm will review its processes.

Berkeley Cox of KWM says the firm is committed to change. Janie Barrett

Among the other major law firms, which have all watched profits rise this year boosted by commission work, class actions, mergers and acquisitions and more, there's more than a slight sense of "it could have been us".

When asked by AFR Weekend whether workplace policies are often not much more than warm and fuzzy motherhood statements, Herbert Smith Freehills global chief executive Mark Rigotti says that's always a risk.

"It's how you live it [the policies] that counts and I think King & Wood Mallesons with the investigation, to be honest – that could be any law firm or not even law firms, people on the commissioner's side of the fence are working very hard as well," he says.

In the case of KWM, insiders say the royal commission did unquestionably create extreme conditions. KWM had four royal commission clients: AMP, IOOF, Youi and Suncorp. Many firms just had one big bank client.

Slow to respond


Lawyers say the demands of the Hayne royal commission were unlike any other and KWM was slow to respond, taking two months to implement work rosters. These don't make the long hours go away but they do give staff some time to breathe by ensuring that after six weeks of long hours and weekend work, junior staff are rotated on to a less taxing assignment.

Last month Cox said no formal complaint had been made internally but some KWM staff have questioned this. At least one written internal complaint about overwork in the Hayne commission team was made to partners. KWM is understood to be reviewing the processes it has for complaints or concerns, which in the past have been handled by the partner in charge of the work.

"Without people eventually complaining loudly, the little that was done toward three months into the matter would not have occurred," one source says.

KWM's Cox says the firm is committed to change.

"We acknowledge that responding to the unprecedented and unusual demands of the financial services royal commission was challenging, in particular, meeting turnaround times for review, analysis and production of large volumes of documents," Cox says in an emailed statement.

"We are very conscious of the impact that this situation has had on our people. Concerns raised internally were acted upon with additional measures and we thank those who gave us valuable feedback on the existing and additional systems and processes put in place to effectively manage resourcing."

Highly competitive

In many ways, it's business as usual. On October 14, KWM sent out offers for Melbourne clerkships to final-year law students, the traditional first step on the path to a post-university job. As usual it was a highly competitive field with hundreds competing for tens of jobs.


But some lawyers say the traditional trade-off – work long hours now on the promise of a partnership in the future – doesn't hold the same appeal it once did because current partners are staying on longer than before.

"There's nearly no partner track left," one comments. The impact of the unprecedented Worksafe investigation is uncertain.

Worksafe may decide the issues are so serious the firm should be prosecuted or it may find the firm has already done enough to mitigate fatigue issues.

But in some ways law firms make it easy for anyone seeking to probe working conditions.

Clyde & Co health and safety partner Michael Tooma says "evidence gathering in fatigue is typically a difficult exercise – except where there is an environment of record-keeping on hours of work, as is the case in trucking and, obviously, law firms."

Studies have found that staying awake for longer than 17 hours has the same effect on behaviour as a blood alcohol level of 0.05 per cent. After 21 hours, it's like a person has a blood alcohol level of 0.1 per cent, twice the legal limit.

Central Queensland University sleep expert Professor Drew Dawson says over the last 12 months regulators have been more likely to issue fatigue improvement notices to professional service firms, from merchant banking to accountants.

At one merchant bank, the regulator intervened after staff worked 106-hour weeks, or about 15 hours a day, seven days a week. At the accounting firm, a tax accountant died after driving back home after working long hours.


"These actions by regulators are part of a cultural shift," Dawson says. "There's no doubt fatigue is more of an issue now than it was 10 to 15 years ago."

Start of change

Unlike, say, construction or jobs with heavy machinery, fatigue does not have an obvious risk to health and safety for those who work in offices, outside of driving home. So the investment bank could address fatigue concerns by introducing a policy for a car to pick up staff who worked past 8pm and drive them home.

However, Tooma says if such working patterns can be shown to be systemic rather than a one-off, then "normal discretionary factors and the public interest would weigh more favourably towards a prosecution than a simple provision of a notice".

For his part, Tooma says he hopes the inquiry marks the start of change.

"I hope we look back at this investigation in a few years' time and say this was a watershed moment when the industry took a long hard look at itself over fatigue in young lawyers."

With David Marin Guzman and Michael Pelly