Top Tier New Zealand law firm Russell McVeagh made international headlines this month for all the wrong reasons. Boozy parties ending with consensual intercourse on the boardroom table led to a culture in which young female interns felt pressured sexually, and young (or not so young) male lawyers decided that access to compliant young girls was a workplace perk.
The final result was ugly, including allegations of sexual assault made by the 2015-16 intern intake. The firm’s response when the issues came to light was standard – an inconclusive investigation, the girls moved on and the boys moved sideways. Sound familiar?
Except this time - due to a subtle shift in the Zeitgeist - there have been profound consequences, not just for the alleged perpetrators but for the whole firm. Student demonstrations, questions in Parliament and relentless scrutiny have destroyed the firm’s brand in weeks. Russell McVeagh recruiters are banned from every NZ university campus and clients face complaints for using them.
The first few rumbles of what is potentially an avalanche are being heard in Australia too. BigLaw partners with questionable histories are falling on their swords and Big4 Accountancy practices are examining past investigations to check how rigorous they were. This is not limited to the big end of town – any size firm can be vulnerable.
If you run a law firm you are on notice. Neither the New Zealand debacle nor resignations from other firms arise from isolated circumstances. There can be little doubt that inaction over bullying and sexual harassment also threatens the reputations of Australian law firms and the profession more generally.
Dr. Rebecca Michalak, as part of her doctoral thesis undertook research into the reported incidence of harassment and bullying experienced by employee solicitors in Queensland.[1]
73% of private practice lawyers experienced bullying to some degree, 19% experienced it to the point that it affected their work performance or made them more likely to leave the firm.[2]
There were similarly high levels of unwanted sexual attention (11% lawyers, 19% support staff)[3] among survey respondents in private legal firms. Sexual coercion - attempts to secure sexual compliance through coercive behaviour was experienced by 16% of staff to some degree.[4]
The vast majority (89%)[5] of employees do not report the behaviour, and of those who do, around half report subsequent retaliation.
A report[6] published by the Law Council of Australia uncovered similar levels of exposure, identifying unresolved bullying as a common reason for lawyers leaving the profession altogether.
In many ways the problem goes beyond gender, and is about power. The power of permanent staff over interns desperate for their first job. Partners who can destroy careers with a well-timed hesitation when asked for a recommendation. The power of a manager who can destroy confidence and performance with a subtle application of the managerial levers.
The intangible – and very fragile – nature of a professional’s reputation explains why so many affected individuals simply suffer in silence then leave. The owner / manager structure of many law firms exacerbates this, as HR and internal complaints staff are called upon to intervene to protect staff against their own employer.
This conduct is not just a matter for the firm. It brings the profession into disrepute as well. The Australian Solicitors Conduct Rules 2012 prohibits Sexual Harassment and Workplace Bullying.[7]
Disciplinary sanction from bullying cases to date have dealt with crude, outward manifestations such as swearing at staff: Baker v Legal Services Commissioner.[8] Repeated use of language intended to humiliate and upset staff was found to be unprofessional conduct:
‘It is inconceivable that the behaviour the subject of (the charges) could ever be regarded as acceptable behaviour by a solicitor towards a client or an employee. It is bound to bring the profession into disrepute.’[9]
Consistent with the low reporting rate there are few disciplinary cases concerning sexual harassment given the prevalence of the problem. See, for example Legal Services Commissioner v SH Nguyen[10] in which a barrister (39) was charged and convicted of sexual assault on a legal secretary (19) following a police investigation. Some of the conduct alleged occurred within the District Court precinct. Outcome: $20,000 fine.
In Legal Services Commissioner v PLP[11] the Principal of a small law firm in Victoria propositioned a law graduate on 11 separate occasions, including sending her 78 texts, showing her a video of a sexual encounter he had with a prostitute, repeated attempts to massage her, holding her in her chair in a locked room and covert filming, repeated incidences of suggestive language. Outcome: suspension.
In PLP the Tribunal listed a series of cases in which misconduct towards clients resulted in disciplinary sanction, in some cases including suspension or denial of a practicing certificate until proof of rehabilitation was supplied.
It is suggested that future prosecutions – of which there will no doubt be many – will lead to significantly more serious consequences for perpetrators once the conduct is proven. Reliance on the historical reluctance of regulators to get involved in what has been perceived as a private dispute would be imprudent.
In short, a long-overdue warning shot has been fired, and firms and practitioners who fail to heed can (and should) expect no leeway on this issue. The consequences of sexual harassment and bullying behaviour can be extreme, and it is hard to escape the conclusion that the legal profession’s well-known susceptibility to depression and self-harm is related to such behaviour.
Are you affected by the issues arising in this article?
If so, please call the QLS Ethics Centre on 07 3842 5843 for a confidential discussion. We can put you in touch with support professionals to assist you to weigh your options and reduce the psychological impact.
David Bowles
Ethics Solicitor
23 March 2018
[1] R T Michalek, ‘Causes and Consequences of Work-Related Psychosocial Risk Exposure’ (Research Report, 2015).
[2] Ibid 45.
[3] Ibid 47.
[4] Ibid 48.
[5] Ibid iii.
[6] Law Council of Australia, ‘National Attrition and Re-engagement Study (NARS) Report’ (Report, Law Council of Australia, 2013) <https://www.lawcouncil.asn.au/policy-agenda/advancing-the-profession/equal-opportunities-in-the-law/national-report-on-attrition-and-re-engagement>.
[7] Australian Solicitors Conduct Rules 2012, rule 42.
[8] [2006] QCA 145.
[9] Legal Services Commissioner v MV Baker [2005] LPT 002, [213].
[10] Legal Services Commissioner v SH Nguyen [2015] QCAT 211.
[11] [2014] VCAT 793.