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.
The New Zealand Law Society| Te Kāhui Ture o Aotearoa has announced a consultation on rule changes in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC) and the (Lawyer: Ongoing Legal Education Continuing Professional Development) Rules 2013 (CPD), in order to combat bullying and sexual harassment in the legal profession. The proposed RCCC and CPD changes aim to clarify and reinforce conduct standards and obligations concerning discrimination, harassment, bullying and other unacceptable conduct by lawyers and employees of law practices.
The society has said that they are “committed to playing a leadership role in targeting and eliminating the culture of bullying and sexual harassment which exists in some parts of Aotearoa New Zealand’s legal community.
This work is a high priority for us in our role as the regulator of the legal profession and as one of the leaders in creating a safer, healthier and more inclusive and diverse legal culture.”
View the full consultation.
The Law Society of Alberta has extended the deadline of a consultation on an updated model code of conduct to the 30th June.
The amendments to Model Code Rule 6.3 are centred around discrimination and harassment. The draft amendments aim to provide clearer guidance on prohibitions against discrimination, harassment and bullying. This is following feedback from the recent articling survey and the launch of the model Respectful Workplace Policy.
The Society is seeking feedback from a wide range of stakeholders on draft amendments to the Model Code.
See the proposed rules as a PDF, and also see the details of the consultation as a PDF.