The New Zealand Law Society | Te Kāhui Ture o Aotearoa is calling for feedback on new draft guidance designed to support the legal profession to comply with new rules governing the behaviour of lawyers.
The amended rules clarify the standards of behaviour expected of lawyers when engaging with clients, colleagues and others, with an emphasis on tackling bullying and harassment. Consultation on the guidance document is open from the 1st of June until the 16th of July. With the new rules coming into place on the 1st July.
The guidance is split into five sections:
- reporting misconduct and unsatisfactory conduct
- the clear expectations on law practices to have policies and systems to prevent and protect employees and other people that it engages with from bullying, discrimination, harassment or violence, and a designated lawyer to report to the Law Society about this conduct
- support for people affected by bullying, discrimination, harassment or violence
- what to do if you are the subject of a report or complaint
- terminating instructions in the event of bullying, discrimination, harassment or violence by a client
New Zealand Law Society | Te Kāhui Ture o Aotearoa President Tiana Epati has said “This guidance is intended to be a practical tool to help law practices understand their new obligations under the rules. Bullying, discrimination, racial or sexual harassment and other prohibited behaviour have no place in any profession. Everyone has an individual part to play in securing the well-being of our legal community. We also need to ensure the public can have trust and confidence in the legal profession.”
Read more about the consultation and respond here.
The Victorian Legal Services Board and Commissioner has responded to a new report examining Sexual Harassment in Victorian Courts. The report was independently produced by Dr Helen Szoke, former Commissioner of the Victorian Equal Opportunity and Human Rights Commission. The final report was released on the 19th of April, and examined measures to prevent sexual harassment, as well as improve reporting and support for those who experience sexual harassment, and to raise awareness, and ensure accountability across the state’s courts.
The report included recommendations including:
- the development, promotion and implementation of a sexual harassment policy that covers all staff and contractors
- an independent review into the court’s recruitment process
- targeted sexual harassment and discrimination training
- an annual anonymous survey into harassment in the courts system
The Victorian Legal Services Board has acknowledged the report and its contents; expressing its support for the recommendations.
Victorian Legal Services Board CEO and Commissioner, Fiona McLeay has said: “The report’s 20 recommendations offer a clear roadmap for the courts and VCAT to foster respectful cultures and ensure safe workplaces. Like our 2019 study into sexual harassment in the legal profession, this report found that sexual harassment and the silence surrounding this behavior was perpetuated by power inequalities. We must build a culture where sexual harassment is no longer tolerated and where victim-survivors and bystanders feel safe to speak up. We look forward to working with the government and the courts to implement these changes to make a difference to everyone who works in the legal sector in Victoria”.
Read the full report here, or the Victorian Legal Services Board and Commissioner’s response here.
The New Zealand Law Society | Te Kāhui Ture o Aotearoa will implement new rules on lawyer behaviour, with an emphasis on tackling bullying and harassment, from July the 1st. The amended rules will clarify the standards of behaviour expected of lawyers when engaging with clients and colleagues.
New Zealand Law Society | Te Kāhui Ture o Aotearoa President Tiana Epati said“Bullying, discrimination, racial or sexual harassment and other unacceptable conduct has no place in any profession. Changes to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC) were part of the recommendations by the Law Society’s Independent Working Group chaired by Dame Silvia Cartwright. Implementing these changes is the most significant regulatory step available to the Law Society to tackle the behaviour highlighted by the Legal Workplace Environment Survey in 2018.”
The amended rules will include clarifications around the definitions of bullying, discrimination, harassment, including racial and sexual harassment, and other unacceptable conduct. As well as these clarifications the rules include new reporting requirements for notifying this conduct to the Law Society to ensure that there is an appropriate regulatory response.
Law practices in New Zealand will be required to have policies in place to protect staff and clients, as well as this they will need to have an investigative process in place for allegations of unacceptable conduct. In addition, each practice will need to designate a lawyer to report annually to the Law Society on any investigations undertaken by their law practice. The emphasis of the new rules is on the responsibility of each lawyer and law practice to deal with and report unacceptable conduct, rather than individual lawyers having to come forward.
Ms Epati has said “Ahead of the final Rules being approved by the Minister of Justice earlier this year, widespread consultation took place with the profession. I’m confident that these changes have the support of the profession. Everyone has an individual part to play so the public can have trust and confidence in the legal profession. While these Rules are one way the Law Society can bring about change, real and long-lasting change will only take place when everyone takes responsibility. That may be showing up to support a colleague, calling out inappropriate behaviour or helping to build a supportive, non-discriminatory environment within your legal workplace.”
Read more about the new rules here, or read the updated rules here.
The Law Society of New South Wales (NSW) has called for law firms and legal practices around NSW to affirm their commitment to eliminating sexual discrimination, harassment and bullying in the workplace by signing up to the Law Society’s ‘Charter for the Advancement of Women in the Legal Profession’.
President of the Law Society of NSW, Juliana Warner, launched the Society’s revamped ‘Charter for the Advancement of Women in the Legal Profession’ at an event to mark International Women’s Day 2021. Originally launched in 2016, the Charter is designed to promote and support strategies to increase retention of women from all backgrounds within the legal profession, as well as encouraging womens’ career progression into senior management positions.
The Charter aims to achieve this by helping solicitors to develop a professional culture that promotes diversity and inclusion, prevents sexual harassment and bullying, and impacts positively on all practitioners in their place of work. Ms Warner said the 2021 Charter includes new provisions to prompt signatories to establish procedurally fair and transparent sexual discrimination and harassment complaints processes.
Signatories to the Charter commit to:
- demonstrating leadership by removing gender bias and discrimination in the legal workplace
- driving change in the solicitor profession by developing a culture that supports the retention and promotion of women from all backgrounds
- implementing recruitment and promotion strategies that include gender diversity and gender pay equity as important considerations
- promoting mentoring and sponsorship of women in the solicitor profession
- encouraging and facilitating flexible work practices to support a better balance of professional and other commitments
- ensuring that sexual harassment, or any form of bullying in the workplace, is not tolerated
- establishing procedurally fair, safe, accessible and transparent sexual discrimination and harassment complaints processes
- establishing training to protect complainants from victimisation, encouraging bystanders and others to report and ‘call out’ offensive and intimidating behaviour.
Ms. Warner has said: “The updated Charter is part of our ongoing work to address sexual harassment in the legal workplace and drive positive change through our policy work, advocacy and regulatory functions. This version has more targeted and explicit women’s advancement policies that deal with not only the promotion of women in the workplace, but ensuring women from all backgrounds feel safe at work, have flexibility if they are parents, and are not marginalised if they raise complaints about bullying or harassment. As a Law Society, we aim to lead; we aim to encourage; and we aim to provide our members with the best possible resources, such as the Charter, to achieve genuine change. But it is up to law firms and legal practices to interpret and adopt the Charter in a way that makes sense for their workplace and their area of practice,” Ms Warner said.”
View the Charter for the Advancement for Women in the Legal Profession here.
Let’s admit it, harassment and bullying are endemic in the practice of law. Horacio Benardes Neto, the President of the International Bar Association (IBA), made this observation in introducing an IBA report, called Us Too: Bullying and Sexual Harassment in the Legal Profession. Published last year, the report was based on findings from the largest-ever global survey of nearly 7,000 legal professionals in 135 countries. The survey revealed that one in three female respondents and one in fourteen male respondents had been sexually harassed at work. Additionally, one in two female respondents and one in three male respondents reported being bullied at work.
Fortney, Susan Saab, Promoting Diversity and Inclusion in the Legal Profession: The Significance of Giving Voice and Listening to Persons Who Experience Discrimination, Bias, and Harassment (May 20, 2020). JOTWELL (May 20, 2020) (reviewing Veronica Root Martinez, Combating Silence in the Profession, 105 Va. L. Rev. 805 (2019)), Texas A&M University School of Law Legal Studies Research Paper Forthcoming,
Read the full article on SSRN.
Twenty-one of Singapore’s largest law firms have signed the Law Society of Singapore’s Law Firm Pledge on Preventing Bullying and Harassment in Singapore’s Legal Profession, in a virtual signing ceremony. Demonstrating a strong commitment to combatting these issues in the profession.
The pledge seeks to:
i) promote and maintain professionalism;
(ii) respect human dignity; and
(iii) respect the inviolability of every employee’s person and privacy.
By signing the Pledge, the signatories committed to implementing the Law Society’s recommendations to maintain a work environment free from the toxic culture of bullying and harassment. These include:
(i) availing or accessing the Law Society’s Workplace Harassment in the Legal Profession: A resource guide for members (June 2020) to all staff;
(ii) informing lawyers and staff of the law firm’s bullying and harassment policy and workplace grievance handling procedures;
(iii) providing training for staff; and
(iv) ensuring appropriate training for senior management and executive law firm leadership.
President of the Law Society, Gregory Vijayendran SC, said: “I know we are all on the same page, every one of us, on zero tolerance towards any and all forms of bullying and harassment in the legal profession. As representatives of the largest employers in the profession, your standing together in solidarity with other large employers to sign the Pledge will give it gravitas. It will send the strongest of signals to the entire legal profession and to other law firms to ensure that law firm staff and colleagues are treated with courtesy, respect, dignity and decency to promote and sustain proper standards of professionalism. By putting pen to paper and purpose to pledge, we are saving the lives of our lawyers and staff from the death of a thousand cuts of bullying and harassment.”
Read the Law Society’s full statement and the pledge here.
Around the globe regulators are rethinking the scope of their mandates and responsibilities. They are assuming more expansive roles rather than limiting their efforts to disciplining lawyers after misconduct occurs. This Article examines such regulatory initiatives in three areas. First, it discusses developments related to proactive management-based programs in which regulators partner with lawyers who self-assess their firms’ management systems. Data reveal that such assessments help lawyers avoid problems through developing their firms’ ethical infrastructure. When misconduct occurs, injured persons often seek monetary redress. These persons may not be able to obtain recovery unless they have suffered substantial damages to support a contingency fee lawyer pursuing legal malpractice claims. The Article considers how two jurisdictions now provide injured persons an alter-native avenue for seeking monetary recovery. The third category of regulatory initiatives deal with the serious problem of sexual harassment in the legal profession. Finally, the survey of regulatory programs reveals how U.S. regulators can learn from the systematic manner in which regulators in other countries study proposed changes and collaborate with other stake-holders in examining and designing new programs to improve the delivery of legal services, advance public protection, and promote the safety and diversity of lawyer workplaces.
Fortney, Susan Saab, Keeping Lawyers’ Houses Clean: Global Innovations to Advance Public Protection and the Integrity of the Legal Profession (September 9, 2020). Georgetown Journal of Legal Ethics, Vol. 33, pp. 891-930, 2020, Texas A&M University School of Law Legal Studies Research Paper No. 20-26, Available at SSRN: https://ssrn.com/abstract=3689907
The Bar Standards Board (BSB) has released a new report commissioned from YouGov, looking at bullying and harassment within the profession. The qualitative study, was commissioned as part of the regulator’s ongoing programme to address the root causes of bullying, discrimination and harassment at the Bar. The report involved 35 telephone interviews with 30 barristers, and five non-barristers, who had directly experienced or observed discrimination and harassment (including workplace bullying) at the Bar.
Key findings from the report suggest that:
- Participants described a range of experiences, varying from unfair treatment based on protected characteristics, sexual harassment, long term bullying, unreasonable work demands and unfair work allocation. Low to medium level incidents were the most common, especially for those who are from more than one underrepresented group such as Black and female, or Asian and LGBT.
- The Bar has a unique structure – most barristers are self-employed and reliant on clerks for their caseload, often with little formal management or HR structure uniting the two. Some participants felt this lack of formal management structure allowed harassment and discrimination to ”slip through the net.”
- Despite an increased focus on equality and diversity at the Bar, most barristers interviewed had not formally reported their experiences. The key reasons were fear of a negative impact on their reputation and, therefore, their earning potential and career progression.
- The lack of clear, anonymous and supportive formal and informal pathways to reporting incidents was seen as a barrier to addressing bullying, discrimination and harassment. Clearer and more accessible guidance about bullying, discrimination and harassment, its impacts, and when to report it, is needed.
- The report concludes that for anti-harassment policies and procedures to be effective, there needs to be a shift in culture at the Bar to encourage openness and to discourage inappropriate behaviour, with a role for the BSB, the Bar Council and other stakeholders in driving change and offering support.
Speaking about the research, BSB Head of Equality and Access to Justice, Amit Popat said:
“We are committed to working alongside the profession and other stakeholders to root out bullying, discrimination and harassment at the Bar in all their forms. This targeted study amongst those who have directly experienced or observed bullying, discrimination and harassment at the Bar adds a very useful perspective to our understanding of how and why this behaviour is still occurring. It is plain from the study that there are significant cultural factors, including power imbalances, which inhibit the reporting of bullying and harassment. The Bar Standards Board will therefore be convening a roundtable with key stakeholders in the near future to discuss how, within the framework of chambers, supportive arrangements can be established which enable incidences of bullying and harassment to be reported and properly addressed. This must be a high priority for the profession.”
Read the BSB’s statement here, or view the full report here (PDF).
On the 15th July, the American Bar Association Standing Committee on Ethics and Professional Responsibility released guidance that expands on a model rule that covers a lawyer’s conduct related to harassment and discrimination.
ABA Formal Ethics Opinion 493 outlines how ABA Model Rule of Professional Conduct 8.4(g) addresses actions by a lawyer beyond the courtroom and the context of client representation. This could include operating an office or behaviour at bar association or other business and social events when they are related to the practice of law.
The rule makes it professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination based on various categories, including sex, race, religion, sexual orientation and gender identity. The rule is broader than federal anti-discrimination laws because it also covers conduct that is not severe or pervasive, a standard often utilized for employment discrimination.
The formal opinion notes that most free speech is protected, but the rule is violated by harmful conduct, which “will often be intentional and typically targeted at a particular individual or group of individuals, such as directing a racist or sexist epithet towards others or engaging in unwelcome, nonconsensual physical conduct of a sexual nature.” It said the rule is “critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.”
Read the formal opinion and the model rule, or read the ABA’s statement on the new guidance.
On the 8th July 2020 the Law Council of Australia held a national roundtable to discuss sexual harassment in the legal profession and what strategies could be put in place to address the issue. The event was aimed at providing a forum for experts to develop, discusses and refine policy positions for legislative reforms, and new approaches to combat the issue.
Attendees included inclusion and diversity representatives from the Law Council’s Constituent Bodies, the Australian Bar Association, regulators of the legal profession, women lawyers’ associations, law student and university representatives and the Sex Discrimination Commissioner.
Participants agreed on several proposals for further consideration and advancement by the Law Council including:
- Specific amendments to the Sex Discrimination Act 1984 (Cth), including the extension of the prohibition of sexual harassment to all areas of life, and not just in respect of certain relationships and situations.
- Measures to facilitate cultural change in the legal profession, including the facilitation of uniform policies and approaches to sexual harassment, training, as well as further consideration of the relevant professional conduct rules.
Read the Law Society’s description of the event.