Harrassment and bullying by lawyers ... It's time the big swinging dicks were pulled into line, so to speak ... Neil (Mr Ethics) Watt exposes the problem and outlines the solution ... Bully for him
"Lawyers are men who hire out their words and anger" – Martial.
Bullying has been on my mind lately – and harassment in all its malignant forms.
My thoughts were fired by an interview I did a week or so ago on Sky's Law TV.
Workplace harassment has been in the spotlight due to a high profile Clayton Utz sexual harassment case last year.
Maurice Blackburn was also on the receiving end of a bullying charge.
What is a legal ethicist to say beyond the bleeding obvious - "bullying is bad, don't do it"?
Quite oddly, in this time of 21st century enlightenment, harassment is all the rage.
Most instances go unreported as the victims, stripped of power, say nothing, hurt in silence or quietly fade away. And those are the most benign outcomes.
While working for the Queensland Law Society I would answer calls from lawyers on the receiving end of atrocious behaviour, often at the hands of senior practitioners.
Apart from sexual harassment and bullying was the pressure to act unethically or face dismissal. Most were too scared to complain. They worried about their job and their future career.
These "victims" just wanted to talk it out and be reassured they had done nothing wrong.
Here was I in the Law Society, apparently there to give leadership and guidance to the legal profession, completely impotent to do anything about the hurt and injustice being inflicted on the, usually young, lawyer on the other end of the phone.
We have a problem. It's a bit of a smokescreen to say that lawyers are no worse than any other tribe. We are supposed to be held to a higher standard.
Do we need tougher laws? Wasn't it Cicero who observed, "the more laws, the less justice"?
The truth is we rely too much on the law to fix social ills. Law has been reduced to the handyman in a society that doesn't want to mow its own lawns.
Tougher laws are called upon to fix everything from crime to corporate greed to pimples on the bum.
One thing I've learned is that we won't solve this kind of problem with another conduct rule, another policy, another law - although there may be an argument for greater legal protections for victims who speak out.
One of the problems with formal grievance and complaint processes is that, particularly in matters of harassment, the process itself can further victimise the victim.
Quite apart from the terrifying prospect of publicly accusing a colleague, who is often higher up the food chain, the process itself requires hard evidence about circumstances that often occur behind closed doors between two people.
It's tough to produce and easy to deny.
Surrounding all of this is the culture of silence that descends on the subject of harassment, particularly sexual harassment.
The workplace may even know what's going on, and while we may whisper, no one wants to talk about it. It makes us self-conscious. We don't know who to believe or trust.
In this environment the victims often feel completely powerless, in spite of the firm's nice shiny bullying policy and the myriad of laws, rules and legal ethicists.
Tougher laws won't fix what is a failure of culture.
Baker: foul mouthIn 2005 Michael (Rhino) Baker, a Qld solicitor, discovered the adequacy of the law (LSC v Baker [2005] LPT 002).
His case was easier than most because his behaviour was on display for all to see.
To borrow from Martial, Baker was a man who hired out his words and his anger.
His angry words were given away away for free. Staff and clients alike were regularly on the receiving end of sprays of Baker's "vulgar language".
Aware that he was prone to fits of potty-mouthed spleen-venting, Baker sought to justify his position by submitting that he had made it clear to employees not to take the job if swearing was going to offend them. The tribunal was unmoved with Justice Moynihan finding:
"The conduct, particularly in relation to staff, given the vulnerable position of staff, the potential effect on the conduct of the practice from the perspective of support and supervision, the practitioner's persistence and reluctance to accept the implications of his behaviour constitutes a high degree of unprofessional conduct."
Take note lawyers, bullying staff can have disciplinary implications.
But there's another problem - no rules or laws no matter how clearly drafted or how tough will interfere with our capacity for self-justification and self-deception. What was clearly unacceptable behaviour to anyone within earshot was for Baker just his normal operating procedure, about which staff had been warned.
Sure he got his comeuppance, but a lot of damage was done in the process.
My colleague and fellow Sky panellist Steve Lancken reckons that part of the problem is that law, like many businesses, is highly competitive, adversarial and driven by testosterone.
Add to that the hierarchical nature of legal practice and you have a recipe for workplace disaster.
The NSW Law Society has suggested that one in every two people has been bullied at work.
What to do?
As a profession we need to fess-up to the problem and we need to stop relying on the law to fix it.
We have the laws in place - our focus now needs to be on addressing the causes of those workplace behaviours before they begin.
We also need to rescue this subject from the pit of silence in which it lives.
We need to open the windows and let the bad air out. We need to start a conversation in our workplaces that results in this subject being openly talked about so that everyone knows what's acceptable and what's not - and when it rears its ugly head the perpetrators can't hide and the victims are not rendered powerless.
I don't mean that we should hold annual seminars where we have the bullying and harassment policy read to us.
That may allow the HR departments to tick the required box, but it does nothing to address swinish behaviour from the big swinging dicks.
We need to get this subject into the open so it can be talked about as easily as Michael Clarke's double century or Lady Gaga's bling. Only then will we expose it, address it, banish it.
The challenge to the law societies and bar associations is to start the conversation and lend their leadership and resources to work with the profession to deal with it.
No staff member of a law society should be impotent to act when young lawyers on the receiving end of harassment reach out to them for help.
I'm not passing the buck to the professional associations, merely asking them to join the fight and pull together to plan some action.
The time for buck passing is over.
I would love to hear your thoughts.
Neil Watt