This is a personal post from our CEO, Fionn Bowd.
Like every woman in our profession, in this last week or so the Heydon revelations have forced me to re-live my own experiences of the practice of law.
It’s been a while since I have given these things a lot of thought. I carry the scars of my history with me, but most of the time I forget about them. I might occasionally talk about how I got this wound or that one, but I no longer feel the pain of the injury in my daily life.
I left my last law firm in 2016 and since then I have had my second baby and started my own business. The truth is, I had thought that other stuff was behind me.
However since the Heydon conduct has come to light, suddenly those scars started burning. And then, if it wasn’t painful enough to know that even in the High Court, the exalted nirvana of every would-be associate as well as every advocate and ambitious judge, women aren’t safe from misused power, the response of some in my profession (and a national newspaper) ripped off the healed tissue of those scars to expose the nerves beneath.
If not for a disastrous final research paper in my last year of law school, I had a decent shot at a High Court Associateship.
Like every woman in our profession, in this last week or so the Heydon revelations have forced me to re-live my own experiences of the practice of law.
It’s been a while since I have given these things a lot of thought. I carry the scars of my history with me, but most of the time I forget about them. I might occasionally talk about how I got this wound or that one, but I no longer feel the pain of the injury in my daily life.
I left my last law firm in 2016 and since then I have had my second baby and started my own business. The truth is, I had thought that other stuff was behind me.
However since the Heydon conduct has come to light, suddenly those scars started burning. And then, if it wasn’t painful enough to know that even in the High Court, the exalted nirvana of every would-be associate as well as every advocate and ambitious judge, women aren’t safe from misused power, the response of some in my profession (and a national newspaper) ripped off the healed tissue of those scars to expose the nerves beneath.
If not for a disastrous final research paper in my last year of law school, I had a decent shot at a High Court Associateship.
If not for a disastrous final research paper in my last year of law school, I had a decent shot at a High Court Associateship.
From my second year of law school, I focussed on my goal of that associateship, and if not for that final research paper I would have graduated with first class honours (a prerequisite for the High Court).
I graduated in 2002. If I had achieved my dream, I would have been an associate in Dyson’s court. I might have even been Dyson’s associate.
I was a very pretty university student. I often felt it counted against me, that to be a bit more plain would have given me more gravitas. But it seems had I got my dreamed-of interview, my blonde hair and petite yet curvy frame would have been quite the asset after all.
To even think that could have been true makes the 25 year old me fall to her knees and weep.
I didn’t achieve my dream and it took me a couple of years to lick my wounds and move on to plan B, accepting my Big Law graduate offer at the 11th hour. It was not what I had wanted – I wanted the Bar or Academia, and I entered the world of corporate law with trepidation.
It turned out that my trepidation was not misplaced but not for the reasons I had thought. I had been afraid of acting for unethical clients for causes in which I didn’t believe. This turned out to be a false concern. But what I found instead was bullying, harassment, victimisation, and a complete and total disconnection between ‘what HR said’ and what was ‘The Truth’.
I will tell you two stories, and no, neither of them are my own. You will forgive me if I keep those stories to myself.
After I tell you these stories, I will tell you why I think law firms have failed to prevent sexual harassment and what I believe would stop it in its tracks.
STORY 1 – THE PARTNER, THE SENIOR ASSOCIATE, AND THE PARALEGAL
In my very first rotation I worked in a fairly small team, with most partners not yet back in the office (it was January). I was the only graduate and was seized on by a Senior Associate, who was preparing for a matter to go (I say with some irony) to the High Court. He was extremely angry as a person, always in a temper. I had never worked in a law firm before and I had no idea what to expect, so I treated him as a kind of unstable genius – yes sir, no sir, of course sir. He made me very anxious but his behaviour stopped short of anything I considered unacceptable, considering the persona I had built for him and the excuses I had made. One day we were in an empty office preparing the court books, with a male paralegal who had been working on the matter with this SA since it was in the lower courts. The paralegal was of Asian descent and was small and fine-boned – the SA was white, heavy set, and went to the gym every day. Suddenly, something displeased the SA, and in a fit of anger he grabbed the paralegal by the arm, hard enough to bruise, and threw him across the room into a desk while screaming at him.
The SA then acted like nothing had happened and we continued to review the court books. I was extremely shocked and shaken. As soon as I could, I went to my closest friend in the group, a secretary who had been kind to me, and told her what had happened.
‘Yes, that’s just Jeremy*’, she said (*not his real name)
I pressed her. She couldn’t mean this kind of thing was normal and accepted?
‘He’s just like the partner, Alfonso. They are exactly the same. You’ll see when Alfonso gets back. Jeremy is Alfonso’s favourite, he uses him for everything. Jeremy just does the same as Alfonso. No one will do anything. There’s no point getting involved and you’ll just end up suffering if you do.’
I didn’t sleep well that night. The image of Jeremy’s large fingers pressing into the paralegal’s skinny arm, his knuckles white, was burned into my brain. I can still see it today.
The next day I went looking for the paralegal. When I found him I told him that I would be his witness, that no one could say it didn’t happen because I saw all of it, even though it was fast, but where I was standing I saw Jeremy grab and throw him.
Lee* (not his real name) avoided my gaze, shifted away from me and said that he had just tripped. I insisted, he hadn’t tripped, I saw what happened. I asked him, does he do this to you when no one is there? I’m afraid he is treating you worse than this if he will do that when I am standing there. I will support you, he can’t be allowed to do that to you – but Lee said that Jeremy was a good man, he was good to Lee, even though he gets angry sometimes because he is under a lot of pressure, and that anyway, nothing had really happened.
Without Lee prepared to complain, I felt there was nothing I could do. Lee had a family, for all I knew he was on a work visa, I knew it wasn’t simple and that an outraged White Girl storming in to Cause Trouble may not be what he needed. So I did nothing. And to this day, I carry that with me.
In case you are wondering, my first experience of the partner Alfonso was when he returned from his summer holidays (in those days partners still took those). I watched him through the glass walls of his office on his first day back, screaming at Jeremy, red in the face and spittle flying from his mouth. While Jeremy was bigger than Lee, Alfonso was bigger than Jeremy and loomed over him. Jeremy seemed shrunken and childlike, like all the air had gone out of him.
I realised in that moment that everything the secretary had told me was true. Everybody knew Alfonso abused Jeremy. The offices were glass, the doors were not soundproof. On that floor also in glass and non-soundproof offices were other partners, lawyers, secretaries, and at any moment HR or the Managing Partner could walk past.
Everybody knew how Alfonso treated Jeremy. Everybody probably knew how Jeremy treated Lee.
And nobody cared one bit.
STORY 2 – THE BEAUTIFUL GRADUATE AND THE MANY HEADED BEAST
Also in my graduate year, I made friends with an extremely beautiful graduate in another top tier firm. Statuesque, refined, and beautifully spoken, she had chosen law over a career in the arts and had finished a coveted associateship the previous year. She seemed head and shoulders above the other graduates I knew and her time in the Court gave her an insider’s knowledge into the world of law – she was friends with barristers, she had dinner with ‘her Judge’.
Not only was she poised, she was kind, and she took me under her wing as an outsider living in a new city. I thought she was wonderful and couldn’t quite understand why she had taken a liking to me.
In a way, I don’t really need to tell you the rest of the story, as reading this, you already know it, don’t you? You already know that male partners were drawn to her like fat and fleshy butterflies to the freshest of flower, greedy to unfurl their proboscis and steal a taste of her precious nectar. Married or unmarried, it made no difference, with even a Silk lumbering over to her to her, jowls wobbling, wings faded with age.
Curiously, the only person who took ‘no’ for an answer was the unmarried partner. He seemed to engage in a genuine courtship, inviting her to events as his date and to his house to ‘see his etchings’. He accepted her response with equanimity. It never occurred to him, it would seem, that he should not have asked her at all, that there was anything wrong with a partner attempting to woo a graduate.
With those more insistent she tried everything, she had a boyfriend, she was Catholic, her relationship with them was too important to damage with anything other than professionalism.
In the end she was left only with avoidance, and it was extremely difficult for her to come up with believable excuses.
We were both extremely anxious and in the end we were relieved when one of the only partners in her group who hadn’t hit on her took a professional interest in her and genuinely and legitimately started to mentor her. To our relief, he was the most powerful partner in the group and she could now say to the others, I can’t, I have to do something for James* (not his real name). This largely worked, and for all I know they all thought she was sleeping with James now, I have no idea. But the partners left her alone, and that just left the Silk who was much easier to avoid.
Now, she didn’t leave the law because of all this, she didn’t assume that this was going to happen to her for the rest of her career. She did leave that office though, and ultimately that firm, and they therefore lost one of the most talented graduates they could have asked for.
I tell you these things because I think what is missing right now and what has been missing from the regulator and industry inquiries into this issue is one thing.
What is missing from this discussion is a real world understanding of how power is both created and how it can be taken away in our legal institutions, particularly in our law firms.
I never got to be an associate, and so I don’t have any first hand knowledge of the Courts. What I do understand pretty well though, is partnerships. And when it comes to the surveys of women in the law, I believe we can safely assume that the 1 in 3 or 1 in 2 women who have experienced sexual harassment in the workplace as junior lawyers, have most likely experienced it in a law firm.
I know that the vast majority of partners are not engaged in sexual harassment. I know that the vast majority of men are not engaged in sexual harassment. Yet somehow, between 33% and 55% of female lawyers experience sexual harassment, frequently as part of a pattern of conduct, frequently while they are junior lawyers. Someone is perpetuating this conduct. And there is a reason why over 80% of victims do not speak out. (I commend this most recent and extremely well considered research by the Victorian Legal Services Board if you want to know where I get my statistics).
In my first story above, it’s clear why no one was prepared to speak out. In that culture in that group, that conduct was acceptable.
However, in the second story, why did my friend not speak out? What was happening to her happened in private – it wasn’t as though people were walking past her being harassed and ignoring it as they did with Jeremy and Alfonso. Why then did she decide to not say anything?
If you were to ask yourself as a junior lawyer, ‘what is the culture here?’, the culture is actually pretty clear. Three different partners thought nothing of pressuring her for ‘private time’ outside of work hours and pushing her for physical contact, and nor did the Silk almost 3 times her age think anything of doing the same. If you put yourself in her shoes and you were also to ask yourself ‘who would I tell, and what would happen if I did?’, I think you would have a pretty good idea that it won’t be the 3 partners being fired or a Silk no longer being instructed.
When a junior lawyer walks into this environment and experiences this behaviour, does she think it’s because ‘she’s special’? No. She knows she is not. She experiences this behaviour and she assumes that it always goes on, it has always gone on, and likely someone else has complained before her and clearly nothing has stopped it yet.
This leads me to my next point. Which is that resolution of the problem is not the solution. There is no resolution of the problem. My experience, and I believe everyone elses’ experience, is that any kind of workplace complaint, whether it’s sexual harassment or bullying or victimisation, cannot be satisfactorily resolved from the perspective of the complainant. To use an overused metaphor, there is no point shutting the gate after the horse has bolted.
There is no coming back from an accusation made against a fellow lawyer of this kind of conduct. And that is a crucial element missing from almost every regulatory response that attempts to deal with it. No amount of counselling or ‘support’ can reinstate or create a happy working relationship when two people have been through a complaint like this. What’s more, even if (and it’s a big if), the complaint management process both stops the behaviour and prevents any new and different forms of punishment against the victim from the accused or their supporters, what is absolutely certain to be withheld is support.
Our profession is a people profession. Other people can sink our careers by simply damning us with faint praise. ‘Oh, Jane? Yes…. she’s… solid. Hard worker. Great attention to detail. A really strong B+ lawyer. Yep, she’s good’. With that glowing recommendation, Jane will not be getting the promotion to SA or be given a juicy role on a big matter, or a new job if the speaker is being asked informally about Jane.
Well, of course, the accused shouldn’t be in a position of giving any kind of assessment about their accuser. No, they shouldn’t be. But then if they are gagged, who is there to speak for Jane at all? We don’t get anywhere as lawyers if no-one will speak for us, we have no career if there is no one we can point to and say, ‘that person over there will vouch for me’. As a junior lawyer, you have only worked with a few people, and usually only one or two have worked with you enough to vouch for you. Take one of those out, and sometimes both of them if they were implicated, and you are lost at sea.
And then there is the impact of a formal gag vs an informal one. An angry partner could trash Jane’s reputation in other firms without much trouble, and they would have no idea about his conflict of interest.
Stopping it from happening in the first place is the only solution.
Just in case this was on your To Do List, I’ve saved you the trouble of reviewing the last 10 years or so of recommendations on reform in sexual harassment in the legal profession. (In case you are keen anyway, here is a helpful review by the Law Council last year of past submissions from industry bodies and others on this topic).
My perspective is that, by and large, the regulators have shown no sign of looking at this problem through the lens of the real world to try to stop the conduct rather than just trying to clean it up afterwards.
Recommendations generally fall into 3 buckets – more education, clearer policies and procedures, and tightening of existing laws. The most commercial recommendation I have seen was one requiring NDAs to be equitable and equally binding. How disturbing to know that so many have been neither so that this recommendation was required.
Other recommendations have been that there should be ‘harassment phone lines’ like the ethics lines in most States, and an independent panel to help with mediation and conciliation.
Once or twice, the regulators have called for an independent investigatory power, which I suspect a number of them now do have (but who would know – even now with the Heydon scandal, how many regulators have clearly publicised what they can do to help?).
I don’t want to be critical for the sake of being critical, and I have no emotion invested in the effectiveness or otherwise of the regulators.
I’m not an academic. All I am is a senior practitioner who has seen my share of bullying, sexual harassment, and sexual assault in my profession. And what I can see when I look at what I believe are the causes of this unpleasantness, and the broad range of regulator recommendations, is that the two (the cause and the recommendations) have little relationship to each other. What we need to do is to stop the events occurring, not to spend our energy trying to (unsuccessfully) clean up the mess afterwards.
HERE IS MY TAKE ON WHAT WOULD ACTUALLY MAKE A DIFFERENCE
One of my specialities in drafting contracts is setting up a commercial structure which drives the behaviour that the parties want. My time both in-house and in firms has taught me that almost without exception, no matter how important the contract, after it is signed it will be put in a drawer somewhere and forgotten about. (In my view we could increase national productivity by about 10% if people actually contract-managed the contracts that lawyers write, but that’s another post).
Understanding that no one reads contracts once they are signed has taught me that instead of relying on the application of the law, you need to put the carrot and the stick in the commercials. The price is not a carrot and litigation is not a stick. People care about real world consequences, and when you are looking at a law firm, you need to look at what real world consequence are currently and what they could be.
First let’s talk about what they are not.
Law firms and partners are not afraid of:
Anything that involves a victim having to go public – any kind of legal proceeding or public shaming like going to the media, because the risks to the complainant are far far greater than the risk to the law firm, or
Anything that they can control, like a single complainant making an internal complaint which the law firm is able to handle as they wish.
Law firms and partners are not afraid of civil legal proceedings because these essentially never happen. Only a former partner would be prepared to bring a civil action because only a former partner has enough to lose financially. A complainant needs to show damage for a civil cause of action, and that financial damage would need to be enough to justify proceedings. It never will be for anyone below partner level. And even if the woman were inclined to bring proceedings out of revenge instead of a desire for compensation, she will sink her own career along with the man she accuses. There is no chance she would get damages equivalent to the loss of income caused by not being able to practice as a lawyer due to her reputational damage. So why on earth would she bring this kind of action? She won’t, and they don’t.
Law firms and partners are also not afraid of criminal proceedings because they don’t believe the behaviour is criminal in the first instance (and it probably usually isn’t), and anyway, every female lawyer knows full well that even if she was raped in a dark alley by someone whose face she saw clearly, the criminal justice system is against her. She knows it will be near-impossible for her to convince the police to prosecute, and if they will, almost certainly impossible that it will be successful.
As for internal complaints, while they are annoying and time consuming for firms, ultimately they will be resolved by the lawyer signing a non-disclosure agreement and being given a small payout, somewhere probably between 1 and 3 month’s pay, and leaving. End of problem.
(This latter resolution is how the small handful of actual complaints that are actually made are always dealt with).
So, nothing in the current regime gives law firms any reason to fear.
However, here are some things that law firms and law firm partners would be very, very afraid of.
Anything that protects the anonymity of the complainant but not the anonymity of the firm.
Anything that costs them more than the cost of a high earning partner being asked or required to leave.
Anything that creates personal liability in other partners.
Here’s some examples of what a regime with those consequences that might look like.
An anonymous complaints forum where those harassed could make a complaint against the firm without having to notify the firm. These complaints would be recorded and published annually as an ‘allegation’ against that firm’s name. The name of the harasser would be recorded but kept confidential if the complainant so wished and the complainant did not want further action taken. Any further allegations against that same person or allegations of particularly serious conduct would result in mandatory investigation by the regulator of the original complaint and the subsequent one/s.
An independent regulatory body where complainants could bypass the firm and ask to have their complaints investigated. Any complaint found to be substantiated would be published against the law firm’s name as a substantiated complaint.
Law firms compelled to report the number of NDAs entered into due to complaints of sexual harassment, and those numbers are also published by the regulator. The NDAs have to be registered with the regulator to be enforceable (but remain confidential unless there are more complaints against that same person).
Mandatory referral by the firm to the regulator if the same lawyer receives 2 or more complaints.
Each complaint substantiated by the regulator would result in a mandatory substantial fine for the law firm.
Each complaint substantiated results in a referral by the regulator to the Legal Practice Board for consideration of whether the person is suitable to practice.
If a person receives 3 substantiated complaints of sexual harassment, the person will lose their right to practice. Further, the Practice Leader and Managing Partner are also referred to the Legal Practice Board, as they have failed to educate, supervise and monitor this person who has been found to cause harm to 3 different women/men.
The fines should be tiered so that, for example, more than 5 substantiated complaints in say a rolling 5 year period resulted in a doubling of the fine. More than 10, a tripling.
Fines should be tied to the firm’s revenue base as they need to be large enough to be an incentive to prevent bad behaviour in all of the firms, including the largest. They also need to be large enough to counteract the cost impact of a partner being asked to leave and their revenue being lost to the firm. This is in the order of several hundreds of thousands of dollars, and up to over a million.
Fines should be able to be issued personally against the partner as well as against the firm, either at the regulator’s discretion or on a mandatory basis.
Have I given any thought to the statutory mechanism? No, I haven’t. Just the publishing of complaints and a referral for investigation if the same person was accused 2 or more times times would itself be an extremely large deterrent.
No one is going to work at a law firm whose name is at the top of that leader-board, no graduates will apply, and no women will accept a lateral offer. The majority of men would also refuse to work in that kind of environment, and given the large number of women lawyers, I predict the firm at the top of that leader-board will go bankrupt. The fines are very appealing to me and I think they would encourage lawyers to make the complaint, knowing that it will hurt the hip pocket of the law firm, but even without fines, the publication would do the trick.
Well this is very painful and upsetting for law firms, isn’t it? Yes, but it will focus their minds to laser sharp precision, and that is the proper aim of a good contract or in this case, a good regulatory regime.
I am glad you asked.
Like this:
It should go without saying, but these initiatives would need to go hand in hand with some pretty serious, intensive and ongoing education efforts. However I believe that all those who currently find it very confusing to know who they can and can’t hit on, will suddenly find that they are remarkably clear on what they should and should not do.
But I hope I have been able to demonstrate that there are solutions outside of the narrow frame of reference of our current laws and processes, which have been built on the back of ideas of due process, rather than prevention.
I graduated in 2002. If I had achieved my dream, I would have been an associate in Dyson’s court. I might have even been Dyson’s associate.
I was a very pretty university student. I often felt it counted against me, that to be a bit more plain would have given me more gravitas. But it seems had I got my dreamed-of interview, my blonde hair and petite yet curvy frame would have been quite the asset after all.
To even think that could have been true makes the 25 year old me fall to her knees and weep.
I didn’t achieve my dream and it took me a couple of years to lick my wounds and move on to plan B, accepting my Big Law graduate offer at the 11th hour. It was not what I had wanted – I wanted the Bar or Academia, and I entered the world of corporate law with trepidation.
It turned out that my trepidation was not misplaced but not for the reasons I had thought. I had been afraid of acting for unethical clients for causes in which I didn’t believe. This turned out to be a false concern. But what I found instead was bullying, harassment, victimisation, and a complete and total disconnection between ‘what HR said’ and what was ‘The Truth’.
I will tell you two stories, and no, neither of them are my own. You will forgive me if I keep those stories to myself.
After I tell you these stories, I will tell you why I think law firms have failed to prevent sexual harassment and what I believe would stop it in its tracks.
STORY 1 – THE PARTNER, THE SENIOR ASSOCIATE, AND THE PARALEGAL
In my very first rotation I worked in a fairly small team, with most partners not yet back in the office (it was January). I was the only graduate and was seized on by a Senior Associate, who was preparing for a matter to go (I say with some irony) to the High Court. He was extremely angry as a person, always in a temper. I had never worked in a law firm before and I had no idea what to expect, so I treated him as a kind of unstable genius – yes sir, no sir, of course sir. He made me very anxious but his behaviour stopped short of anything I considered unacceptable, considering the persona I had built for him and the excuses I had made. One day we were in an empty office preparing the court books, with a male paralegal who had been working on the matter with this SA since it was in the lower courts. The paralegal was of Asian descent and was small and fine-boned – the SA was white, heavy set, and went to the gym every day. Suddenly, something displeased the SA, and in a fit of anger he grabbed the paralegal by the arm, hard enough to bruise, and threw him across the room into a desk while screaming at him.
The SA then acted like nothing had happened and we continued to review the court books. I was extremely shocked and shaken. As soon as I could, I went to my closest friend in the group, a secretary who had been kind to me, and told her what had happened.
‘Yes, that’s just Jeremy*’, she said (*not his real name)
I pressed her. She couldn’t mean this kind of thing was normal and accepted?
‘He’s just like the partner, Alfonso. They are exactly the same. You’ll see when Alfonso gets back. Jeremy is Alfonso’s favourite, he uses him for everything. Jeremy just does the same as Alfonso. No one will do anything. There’s no point getting involved and you’ll just end up suffering if you do.’
I didn’t sleep well that night. The image of Jeremy’s large fingers pressing into the paralegal’s skinny arm, his knuckles white, was burned into my brain. I can still see it today.
The next day I went looking for the paralegal. When I found him I told him that I would be his witness, that no one could say it didn’t happen because I saw all of it, even though it was fast, but where I was standing I saw Jeremy grab and throw him.
Lee* (not his real name) avoided my gaze, shifted away from me and said that he had just tripped. I insisted, he hadn’t tripped, I saw what happened. I asked him, does he do this to you when no one is there? I’m afraid he is treating you worse than this if he will do that when I am standing there. I will support you, he can’t be allowed to do that to you – but Lee said that Jeremy was a good man, he was good to Lee, even though he gets angry sometimes because he is under a lot of pressure, and that anyway, nothing had really happened.
Without Lee prepared to complain, I felt there was nothing I could do. Lee had a family, for all I knew he was on a work visa, I knew it wasn’t simple and that an outraged White Girl storming in to Cause Trouble may not be what he needed. So I did nothing. And to this day, I carry that with me.
In case you are wondering, my first experience of the partner Alfonso was when he returned from his summer holidays (in those days partners still took those). I watched him through the glass walls of his office on his first day back, screaming at Jeremy, red in the face and spittle flying from his mouth. While Jeremy was bigger than Lee, Alfonso was bigger than Jeremy and loomed over him. Jeremy seemed shrunken and childlike, like all the air had gone out of him.
I realised in that moment that everything the secretary had told me was true. Everybody knew Alfonso abused Jeremy. The offices were glass, the doors were not soundproof. On that floor also in glass and non-soundproof offices were other partners, lawyers, secretaries, and at any moment HR or the Managing Partner could walk past.
Everybody knew how Alfonso treated Jeremy. Everybody probably knew how Jeremy treated Lee.
And nobody cared one bit.
STORY 2 – THE BEAUTIFUL GRADUATE AND THE MANY HEADED BEAST
Also in my graduate year, I made friends with an extremely beautiful graduate in another top tier firm. Statuesque, refined, and beautifully spoken, she had chosen law over a career in the arts and had finished a coveted associateship the previous year. She seemed head and shoulders above the other graduates I knew and her time in the Court gave her an insider’s knowledge into the world of law – she was friends with barristers, she had dinner with ‘her Judge’.
Not only was she poised, she was kind, and she took me under her wing as an outsider living in a new city. I thought she was wonderful and couldn’t quite understand why she had taken a liking to me.
In a way, I don’t really need to tell you the rest of the story, as reading this, you already know it, don’t you? You already know that male partners were drawn to her like fat and fleshy butterflies to the freshest of flower, greedy to unfurl their proboscis and steal a taste of her precious nectar. Married or unmarried, it made no difference, with even a Silk lumbering over to her to her, jowls wobbling, wings faded with age.
Curiously, the only person who took ‘no’ for an answer was the unmarried partner. He seemed to engage in a genuine courtship, inviting her to events as his date and to his house to ‘see his etchings’. He accepted her response with equanimity. It never occurred to him, it would seem, that he should not have asked her at all, that there was anything wrong with a partner attempting to woo a graduate.
With those more insistent she tried everything, she had a boyfriend, she was Catholic, her relationship with them was too important to damage with anything other than professionalism.
In the end she was left only with avoidance, and it was extremely difficult for her to come up with believable excuses.
We were both extremely anxious and in the end we were relieved when one of the only partners in her group who hadn’t hit on her took a professional interest in her and genuinely and legitimately started to mentor her. To our relief, he was the most powerful partner in the group and she could now say to the others, I can’t, I have to do something for James* (not his real name). This largely worked, and for all I know they all thought she was sleeping with James now, I have no idea. But the partners left her alone, and that just left the Silk who was much easier to avoid.
Now, she didn’t leave the law because of all this, she didn’t assume that this was going to happen to her for the rest of her career. She did leave that office though, and ultimately that firm, and they therefore lost one of the most talented graduates they could have asked for.
What can be done
I tell you these things because I think what is missing right now and what has been missing from the regulator and industry inquiries into this issue is one thing.
What is missing from this discussion is a real world understanding of how power is both created and how it can be taken away in our legal institutions, particularly in our law firms.
I never got to be an associate, and so I don’t have any first hand knowledge of the Courts. What I do understand pretty well though, is partnerships. And when it comes to the surveys of women in the law, I believe we can safely assume that the 1 in 3 or 1 in 2 women who have experienced sexual harassment in the workplace as junior lawyers, have most likely experienced it in a law firm.
I know that the vast majority of partners are not engaged in sexual harassment. I know that the vast majority of men are not engaged in sexual harassment. Yet somehow, between 33% and 55% of female lawyers experience sexual harassment, frequently as part of a pattern of conduct, frequently while they are junior lawyers. Someone is perpetuating this conduct. And there is a reason why over 80% of victims do not speak out. (I commend this most recent and extremely well considered research by the Victorian Legal Services Board if you want to know where I get my statistics).
In my first story above, it’s clear why no one was prepared to speak out. In that culture in that group, that conduct was acceptable.
However, in the second story, why did my friend not speak out? What was happening to her happened in private – it wasn’t as though people were walking past her being harassed and ignoring it as they did with Jeremy and Alfonso. Why then did she decide to not say anything?
If you were to ask yourself as a junior lawyer, ‘what is the culture here?’, the culture is actually pretty clear. Three different partners thought nothing of pressuring her for ‘private time’ outside of work hours and pushing her for physical contact, and nor did the Silk almost 3 times her age think anything of doing the same. If you put yourself in her shoes and you were also to ask yourself ‘who would I tell, and what would happen if I did?’, I think you would have a pretty good idea that it won’t be the 3 partners being fired or a Silk no longer being instructed.
When a junior lawyer walks into this environment and experiences this behaviour, does she think it’s because ‘she’s special’? No. She knows she is not. She experiences this behaviour and she assumes that it always goes on, it has always gone on, and likely someone else has complained before her and clearly nothing has stopped it yet.
This leads me to my next point. Which is that resolution of the problem is not the solution. There is no resolution of the problem. My experience, and I believe everyone elses’ experience, is that any kind of workplace complaint, whether it’s sexual harassment or bullying or victimisation, cannot be satisfactorily resolved from the perspective of the complainant. To use an overused metaphor, there is no point shutting the gate after the horse has bolted.
I believe this point is worth restating. Any kind of workplace complaint, whether it’s sexual harassment or bullying or victimisation, cannot be satisfactorily resolved for the complainant.
There is no coming back from an accusation made against a fellow lawyer of this kind of conduct. And that is a crucial element missing from almost every regulatory response that attempts to deal with it. No amount of counselling or ‘support’ can reinstate or create a happy working relationship when two people have been through a complaint like this. What’s more, even if (and it’s a big if), the complaint management process both stops the behaviour and prevents any new and different forms of punishment against the victim from the accused or their supporters, what is absolutely certain to be withheld is support.
Our profession is a people profession. Other people can sink our careers by simply damning us with faint praise. ‘Oh, Jane? Yes…. she’s… solid. Hard worker. Great attention to detail. A really strong B+ lawyer. Yep, she’s good’. With that glowing recommendation, Jane will not be getting the promotion to SA or be given a juicy role on a big matter, or a new job if the speaker is being asked informally about Jane.
Well, of course, the accused shouldn’t be in a position of giving any kind of assessment about their accuser. No, they shouldn’t be. But then if they are gagged, who is there to speak for Jane at all? We don’t get anywhere as lawyers if no-one will speak for us, we have no career if there is no one we can point to and say, ‘that person over there will vouch for me’. As a junior lawyer, you have only worked with a few people, and usually only one or two have worked with you enough to vouch for you. Take one of those out, and sometimes both of them if they were implicated, and you are lost at sea.
And then there is the impact of a formal gag vs an informal one. An angry partner could trash Jane’s reputation in other firms without much trouble, and they would have no idea about his conflict of interest.
We have to stop it from happening instead of cleaning up the mess afterwards.
Stopping it from happening in the first place is the only solution.
Just in case this was on your To Do List, I’ve saved you the trouble of reviewing the last 10 years or so of recommendations on reform in sexual harassment in the legal profession. (In case you are keen anyway, here is a helpful review by the Law Council last year of past submissions from industry bodies and others on this topic).
My perspective is that, by and large, the regulators have shown no sign of looking at this problem through the lens of the real world to try to stop the conduct rather than just trying to clean it up afterwards.
Recommendations generally fall into 3 buckets – more education, clearer policies and procedures, and tightening of existing laws. The most commercial recommendation I have seen was one requiring NDAs to be equitable and equally binding. How disturbing to know that so many have been neither so that this recommendation was required.
Other recommendations have been that there should be ‘harassment phone lines’ like the ethics lines in most States, and an independent panel to help with mediation and conciliation.
Once or twice, the regulators have called for an independent investigatory power, which I suspect a number of them now do have (but who would know – even now with the Heydon scandal, how many regulators have clearly publicised what they can do to help?).
I don’t want to be critical for the sake of being critical, and I have no emotion invested in the effectiveness or otherwise of the regulators.
However what I do think is missing is an analysis of the problem and the effect from a real world viewpoint.
I’m not an academic. All I am is a senior practitioner who has seen my share of bullying, sexual harassment, and sexual assault in my profession. And what I can see when I look at what I believe are the causes of this unpleasantness, and the broad range of regulator recommendations, is that the two (the cause and the recommendations) have little relationship to each other. What we need to do is to stop the events occurring, not to spend our energy trying to (unsuccessfully) clean up the mess afterwards.
HERE IS MY TAKE ON WHAT WOULD ACTUALLY MAKE A DIFFERENCE
One of my specialities in drafting contracts is setting up a commercial structure which drives the behaviour that the parties want. My time both in-house and in firms has taught me that almost without exception, no matter how important the contract, after it is signed it will be put in a drawer somewhere and forgotten about. (In my view we could increase national productivity by about 10% if people actually contract-managed the contracts that lawyers write, but that’s another post).
Understanding that no one reads contracts once they are signed has taught me that instead of relying on the application of the law, you need to put the carrot and the stick in the commercials. The price is not a carrot and litigation is not a stick. People care about real world consequences, and when you are looking at a law firm, you need to look at what real world consequence are currently and what they could be.
First let’s talk about what they are not.
Law firms and partners are not afraid of:
Anything that involves a victim having to go public – any kind of legal proceeding or public shaming like going to the media, because the risks to the complainant are far far greater than the risk to the law firm, or
Anything that they can control, like a single complainant making an internal complaint which the law firm is able to handle as they wish.
Law firms and partners are not afraid of civil legal proceedings because these essentially never happen. Only a former partner would be prepared to bring a civil action because only a former partner has enough to lose financially. A complainant needs to show damage for a civil cause of action, and that financial damage would need to be enough to justify proceedings. It never will be for anyone below partner level. And even if the woman were inclined to bring proceedings out of revenge instead of a desire for compensation, she will sink her own career along with the man she accuses. There is no chance she would get damages equivalent to the loss of income caused by not being able to practice as a lawyer due to her reputational damage. So why on earth would she bring this kind of action? She won’t, and they don’t.
Law firms and partners are also not afraid of criminal proceedings because they don’t believe the behaviour is criminal in the first instance (and it probably usually isn’t), and anyway, every female lawyer knows full well that even if she was raped in a dark alley by someone whose face she saw clearly, the criminal justice system is against her. She knows it will be near-impossible for her to convince the police to prosecute, and if they will, almost certainly impossible that it will be successful.
As for internal complaints, while they are annoying and time consuming for firms, ultimately they will be resolved by the lawyer signing a non-disclosure agreement and being given a small payout, somewhere probably between 1 and 3 month’s pay, and leaving. End of problem.
(This latter resolution is how the small handful of actual complaints that are actually made are always dealt with).
So, nothing in the current regime gives law firms any reason to fear.
However, here are some things that law firms and law firm partners would be very, very afraid of.
Anything that protects the anonymity of the complainant but not the anonymity of the firm.
Anything that costs them more than the cost of a high earning partner being asked or required to leave.
Anything that creates personal liability in other partners.
Here’s some examples of what a regime with those consequences that might look like.
An anonymous complaints forum where those harassed could make a complaint against the firm without having to notify the firm. These complaints would be recorded and published annually as an ‘allegation’ against that firm’s name. The name of the harasser would be recorded but kept confidential if the complainant so wished and the complainant did not want further action taken. Any further allegations against that same person or allegations of particularly serious conduct would result in mandatory investigation by the regulator of the original complaint and the subsequent one/s.
An independent regulatory body where complainants could bypass the firm and ask to have their complaints investigated. Any complaint found to be substantiated would be published against the law firm’s name as a substantiated complaint.
Law firms compelled to report the number of NDAs entered into due to complaints of sexual harassment, and those numbers are also published by the regulator. The NDAs have to be registered with the regulator to be enforceable (but remain confidential unless there are more complaints against that same person).
Mandatory referral by the firm to the regulator if the same lawyer receives 2 or more complaints.
Each complaint substantiated by the regulator would result in a mandatory substantial fine for the law firm.
Each complaint substantiated results in a referral by the regulator to the Legal Practice Board for consideration of whether the person is suitable to practice.
If a person receives 3 substantiated complaints of sexual harassment, the person will lose their right to practice. Further, the Practice Leader and Managing Partner are also referred to the Legal Practice Board, as they have failed to educate, supervise and monitor this person who has been found to cause harm to 3 different women/men.
The fines should be tiered so that, for example, more than 5 substantiated complaints in say a rolling 5 year period resulted in a doubling of the fine. More than 10, a tripling.
Fines should be tied to the firm’s revenue base as they need to be large enough to be an incentive to prevent bad behaviour in all of the firms, including the largest. They also need to be large enough to counteract the cost impact of a partner being asked to leave and their revenue being lost to the firm. This is in the order of several hundreds of thousands of dollars, and up to over a million.
Fines should be able to be issued personally against the partner as well as against the firm, either at the regulator’s discretion or on a mandatory basis.
Have I given any thought to the statutory mechanism? No, I haven’t. Just the publishing of complaints and a referral for investigation if the same person was accused 2 or more times times would itself be an extremely large deterrent.
No large client is going to brief the law firm at the top of the leader-board for sexual harassment complaints, or the top 5 or 10 law firms on that list, unless their numbers are close to zero.
No one is going to work at a law firm whose name is at the top of that leader-board, no graduates will apply, and no women will accept a lateral offer. The majority of men would also refuse to work in that kind of environment, and given the large number of women lawyers, I predict the firm at the top of that leader-board will go bankrupt. The fines are very appealing to me and I think they would encourage lawyers to make the complaint, knowing that it will hurt the hip pocket of the law firm, but even without fines, the publication would do the trick.
Well this is very painful and upsetting for law firms, isn’t it? Yes, but it will focus their minds to laser sharp precision, and that is the proper aim of a good contract or in this case, a good regulatory regime.
How could firms then protect themselves, I mean, their lawyers, from sexual harassment claims, when the consequences are this serious? Can it even be done? What would that look like?
I am glad you asked.
Like this:
- All relationships must be registered with HR and declared, including extra-marital relationships. A failure to register so is a dismissible offence, and a mandatory dismissible offence for a partner (as they have a duty to protect the partnership).
- Relationships between unequal participants (partner and SA or junior, or SA and junior) are forbidden, unless formal approval has been given by the Board.
- If a partner is dismissed under these provisions, they forfeit any outstanding salary or draw owing to them under the partnership agreement. This will help to compensate the firm for lost revenue.
- Upon registration of the relationship, formal barriers are put in place to ensure that the two participants do not work directly with each other and there can be no supervision or influence of the senior one to the junior.
- All partners in the group are notified of the relationship, as well as the heads of each practice (so there can be no undue influence in any direction by the senior person in the relationship).
- If the relationship ends, the firm must put in place equitable structures to ensure the more junior person is not disadvantaged in their career. The junior person can request the assistance of the regulator to reach a satisfactory outcome with the firm, and the regulator can have powers to direct the firm (e.g. to transfer the lawyer to a team of her/his choice). Any matters referred to the regulator need to be reviewed by the regulator 12 months later to ensure there has been no negative impact on the junior person of the arrangements put in place.
- The regulator can also oversee a settlement agreement which would allow the junior person to be put on gardening leave and compensated for moving to another employer, if no realistic prospects were available for her at the firm.
It should go without saying, but these initiatives would need to go hand in hand with some pretty serious, intensive and ongoing education efforts. However I believe that all those who currently find it very confusing to know who they can and can’t hit on, will suddenly find that they are remarkably clear on what they should and should not do.
No doubt if we start to think about this problem as one that needs a ‘bigger knife’ in the context of the real world, others will come up with better and more sophisticated solutions than mine.
But I hope I have been able to demonstrate that there are solutions outside of the narrow frame of reference of our current laws and processes, which have been built on the back of ideas of due process, rather than prevention.
