The following content has been provided by the panel presenting on this topic during the afternoon on Day 2 of ICLR 2019.
Synopsis
The panel will focus on sexual harassment in the legal profession as a regulatory issue, and explore the regulatory issues that can arise in the use of non-disclosure agreements (NDAs) in sexual harassment claims.
A range of research, including most recently the work of the IBA, indicate that sexual harassment is a significant and wide-scale problem in the legal profession. This is despite the potential professional consequences and attendant civil or criminal liability. Lawyers drafting unfair and unenforceable NDAs in sexual harassment claims have also been subject to serious public and regulatory criticism.
Legal regulators have a clear remit to take action in respect of lawyers who engage in sexual harassment, or who engage in unethical practices in service of their clients. Both types of conduct undermine public confidence and trust in the integrity of the legal profession as a whole – at a time when the legitimacy of the justice system and the maintenance and protection of the rule of law are under increasing challenge.
Speakers
Moderator: Fiona McLeay, Victorian Legal Services Commissioner and CEO of the Victorian Legal Services Board
Panellist: Sara Carnegie, Director, Legal Projects at the International Bar Association
Panellist: Zelda Perkins, Campaigner and former Weinstein Company employee
What particularly do you hope to explore in this session? Any specific questions you hope to answer?
The panel will discuss the International Bar Association’s recent research on sexual harassment in the legal profession, explore why sexual harassment by lawyers is a regulatory issue and explain what legal regulators can do to support reporting of such conduct. The panel will also address lawyers’ involvement in drafting non-disclosure agreements for sexual harassment claims, and legal developments in this space. Questions the panel hopes to answer are:
- What have been the findings of recent research on sexual harassment in the legal profession? How has the profession responded to these findings?
- Why is sexual harassment in the profession a regulatory issue?
- What prevents people from speaking up about sexual harassment by (or towards) lawyers?
- What can legal regulators do to support the reporting of sexual harassment by lawyers?
- Are NDAs ever appropriate in sexual harassment cases?
- What are the ethical considerations for lawyers in drafting such agreements?
- Will the UK Government’s proposed legislation be sufficient to curb the misuse of NDAs to cover up sexual harassment? What has been the effect of similar legislation enacted by various State legislatures in the United States?
- What should be the response of legal regulators to sexual harassment in the profession, including the drafting, use and misuse of NDAs by lawyers?
What do you hope to achieve with this session?
The intention of the session is to promote understanding of why sexual harassment in the legal profession is a serious regulatory issue, spark discussion about how legal regulators can adapt or refine existing complaints processes to facilitate reports of this conduct, and encourage debate about lawyers’ ethical obligations in drafting NDAs.
Any useful documents/background reading for context?
- International Bar Association – “Us Too? Bullying and Harassment in the Legal Profession”
- International Bar Association – “The dark side of NDAs”
- Victorian Legal Services, Board + Commission – “Sexual harassment in the Victorian Legal Profession”
- Department for Business, Energy & Industrial Strategy – Kelly Tolhurst MP, and The Rt Hon Penny Mordaunt MP – “Crackdown on Misuse of Non-Disclosure Agreements in the Workplace”
- Lexology – Seyfarth Shaw LLP – “#MeToo Inspires Legislative Changes Across the United States”
Anything you would like to ask the regulator community in advance of the session to inform the content/preparation?
- Ask regulators to check how many complaints or reports of sexual harassment by lawyers they receive, on average.
- Ask regulators to indicate whether they have a particular policy or approach to sexual harassment and/or the use of NDAs and if not, whether they intend to develop one or both of these.