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Legal profession: Professional culture to blame

Legal profession: Professional culture to blame

By Julian Webb

Practice Management Workplace 

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Sexual harassment is more prevalent in the legal profession than the workplace generally. While there have been some initiatives to curb this, cultural and regulatory reform is needed.

Snapshot
  • Recent surveys of the legal profession point to a troubling, gendered, power dynamic in the legal workplace.
  • While the critical need for cultural change is being acknowledged, if inertia and complacency are to be overcome, this needs to be supported by greater regulatory action.
  • Reforms should require legal employers to take “reasonable and proportionate measures” to eliminate sexual harassment and introduce (limited, anonymous) sexual misconduct reporting requirements. The use of NDAs by law firms should also be reviewed.

The High Court-sponsored investigation into former High Court justice Dyson Heydon’s conduct has resurfaced barely buried concerns over the prevalence of sexual harassment at work in the legal profession. Even before the Heydon revelations, the profession knew it had a man problem. Surveys by the International Bar Association1 and the Victorian Legal Services Board + Commissioner (VLSB+C)2 point to substantial numbers of women – nearly two-thirds in the Victorian survey – experiencing sexual harassment at work.3 This figure is significantly above the baseline 39 per cent of women nationally who reported experiencing workplace sexual harassment within the last five years.4 This, of itself, suggests the problem in law has features that are cultural and specific, going beyond inappropriate behaviour by a few “bad apples”. 

The legal professions and their regulators in Australia, the UK and New Zealand are beginning to acknowledge the structural nature of the problem. In Australia, statements from the VLSB+C,5 the Law Council of Australia (LCA)6 and the Victorian government7 show a welcome intent, but we still lack a clear road map and much in the way of substantive action. Drawing on a range of sources from across these jurisdictions, I offer some concrete proposals for changing culture, regulation and discipline.

The underlying problems

As a matter of law, sexual harassment is a form of unlawful discrimination and, in circumstances where the conduct constitutes sexual assault, it will also be criminal behaviour. For Australian lawyers it can also constitute misconduct under the professional rules in force: for most states and territories there is now an express prohibition contained in the Legal Profession Uniform Law Australian Solicitors Conduct Rules, r42, or local variants thereof. The problem is, of course, that these legal prohibitions are of limited efficacy. 

First, only a relatively small number of civil claims are launched and even fewer cases result in disciplinary or criminal prosecutions. These forms of remediation are not really fit for their larger systemic purpose of reducing sexual misconduct in that they are no different to other types of claims. They are individualistic and reactive: they require the victim of past harassment to complain, and be prepared to pursue a course of action that is likely to be legally complex, emotionally, and often financially, tough8 and one that may exacerbate harms already experienced, including victimisation. It is unsurprising, therefore, that, as the VLSB+C survey shows, most incidents are never reported. Even where a victim does complain, the system is riddled with incentives to settle quietly. And when claims settle, they are often governed by non-disclosure agreements (NDAs), sometimes requested by the victim, but also designed to limit reputational damage to the firm and the risk of future claims.

Second, it follows that the existing regimes do little by themselves to encourage institutional change. In the legal sector, moreover, there are a number of specific (though not necessarily unique) features that likely make organisational culture less susceptible to change including:

a very clear and troubling power dynamic – Australian Human Rights Commission (AHRC) data suggests most harassment occurs within work groups involving individuals working at the same level, but this is not the case in the legal profession. This distinction is clear from the Victorian survey: in 72 per cent of survey cases, harassers held a more senior position than the victim; moreover, three out of five victims had less than six years’ experience in the sector.

there appears to be a major disjuncture between womens’ experiences of harassment and management perceptions of its frequency – 73 per cent of legal employers responding to the VLSB+C survey thought that sexual harassment was very rare within their own organisations.10 

This disjuncture suggests a degree of complacency and complicity regarding actual workplace behaviours, which is doubtless not helped by a culture that still sees too few women in positions of organisational leadership. It may be no coincidence that the revelations against Dyson Heydon were made by the High Court’s first woman chief justice. The legal profession remains one where too often “women are devalued and treated as less worthy than men”,11 through practices such as pay and pregnancy discrimination, and by the subtle and less subtle ways in which legal work is not just gendered, but also sexualised.12 Sexualisation operates through routine and normalised practices, such as gendered dress codes, sexist jokes, objectifying comments on female looks and appearance, and the use of “girliness” as a proxy for inferior competence. Moreover, derogatory attitudes to women’s “sensitivity” to their sexualisation are also a manifest part of this process, which, at the extreme, may be deployed to minimise behaviours that actually constitute harassment and assault. 

Driving cultural change

Statements by Australian Women Lawyers (AWL), the VLSB+C and the LCA recognise that cultural change is key.13 All suggest the need for practitioners to undertake mandatory training, a strengthening of reporting regimes, and a requirement that firms adopt (model) anti-discrimination and harassment policies. These are practical and potentially important steps, which are already happening, but will require strong professional leadership at all levels to ensure change is not just cosmetic. I am unconvinced that they are enough without also a direct focus on deeper organisational and regulatory reform. I suggest a number of inter-related steps that might offer further progress. 

First, the VLSB+C survey data suggests a significant proportion of law firm leaders need to move beyond a mindset that assumes “we are all gentlemen here” and that sexual misconduct is therefore exceptional, aberrant workplace behaviour. The more feasible view is that, like most wrongdoing, harassment is not perpetrated by damaged personalities, but by people who are otherwise at least averagely ethical and law abiding; in other words, it is not so much about hunting out the odd “bad apple” but addressing what organisations scholar Professor Donald Palmer calls “normal organisational wrongdoing”.14 To assume the normalcy of harassment is not to downplay it, it is a first step in recognising that it is everyone’s problem. This understanding is an invitation to legal organisations and institutions to look critically at their management structures and power dynamics. What is it about the organisational context that permits and enables harassers to violate normal standards of integrity, respect for colleagues and respect for the law? This will be a difficult conversation and it will be resisted because, as Palmer’s work acknowledges, many of these structures are deeply embedded, and may play a part in the firm’s economic model and its collective identity, as well as having the potential for harm to victims. Second, organisations do need to look at the totality of their ethical and regulatory infrastructures to identify measures that are designed to eliminate sexual misconduct. A significant proportion of firms surveyed for the VLSB+C lacked the basic infrastructure in terms of clear and appropriate documentation of sexual harassment policies and procedures and training on appropriate workplace behaviours.15 Clear, confidential, internal complaint procedures are especially critical, and given the hierarchical nature of much sexual misconduct, it is crucial that complaints are investigated in ways that are independent from and cannot easily be influenced by powerful abusers.16 This is not difficult to achieve as such: independent review is increasingly adopted as good practice in other industries and settings – as the High Court itself demonstrated in its inquiry into Dyson Heydon’s conduct – particularly where complaints bring into question the role of senior officers or executives. It may be expensive, however, and there may be a role for the profession in developing low cost alternatives to an internal inquiry mechanism for small firms and sole principals/sole practitioners. 

Third, how firms manage the social sides of professional life cannot, unfortunately, be separated from the problem of sexual misconduct. This is a wide area; it potentially covers multiple forms of social interaction and their management. Firms generally have reasonably strict electronic communication protocols and policies that make the downloading of work-inappropriate online content a disciplinary matter. The policing of private spaces within offices and of sexualised “jokes” and “banter” is more difficult. The latter, in particular, is easily undermined as “political correctness gone mad”, a view that understands neither its impact on the dignity of the recipient, nor its role in what is often a pattern of power play. Training and clear rules on respect may help. A further critical dimension highlighted by the New Zealand Law Society’s Cartwright Working Group,17 submissions from legal bodies to the AHRC Respect@Work inquiry18 and my own study of the disciplinary case law is the link between sexual misconduct and the role of alcohol in social events.19 While we should be cautious in considering alcohol as a cause per se, its disinhibiting effects and association with social events where “office rules” may be relaxed, do mean that it plays an important part in increasing risk. Reducing or eliminating access to often generous quantities of alcohol would be to remove a significant risk factor from work events. 

Regulatory reforms

First, as noted, r42 of the Australian Solicitors Conduct Rules expressly makes sexual harassment a disciplinary matter. However, there appear to be no reported cases where r42 has formed part of the grounds for prosecution. To that extent its function to date has been primarily symbolic. It also tends to reinforce the view of harassment as an individual rather than organisational failing. 

Unlike federal law, the Equal Opportunity Act 2010 (Vic) requires employers to take “reasonable and proportionate measures” to eliminate sexual harassment in the workplace. The Victorian Equal Opportunity and Human Rights Commission can investigate a suspected breach where it is serious in nature, relates to a class or group of persons, and cannot reasonably be expected to be resolved by dispute resolution or via the Victorian Civil and Administrative Tribunal. If the profession is serious in its intent to build better and fairer internal systems, then there is at least an argument for mirroring these provisions in the Uniform Law to create an enforceable obligation on firms within the disciplinary jurisdiction. This would significantly strengthen the regulator’s hands relative to its current audit powers (see below). 

Second, the AWL’s call for mandatory training on actions that can and should be taken by bystanders is vital in breaking down a culture of complicity by silence. This proposal could be strengthened by a reporting obligation requiring practitioners who are aware of an incident of sexual harassment to make a confidential report to the regulatory authority. Such powers already exist under the regulatory regimes in England, Wales and New Zealand.20 Australian legal regulators have, since the days of “pure” self-regulation, failed to impose reporting requirements on professionals for observed disciplinary infractions. This reticence seems to weaken any meaningful notion of the profession as a self-regulating community. A case could and should be made for its introduction in cases where a bystander reasonably believes a colleague has been the victim of sexual misconduct. 

Third, the cone of silence often created around harassment can be part of an unhealthy focus by organisations on damage limitation over employee welfare. In this context, the use of NDAs to enforce the victim’s silence may add to the organisation’s complicity. It is notable that the New Zealand Law Society is moving to outlaw their use in such matters,21 and a number of disciplinary cases in the UK are focused specifically on the ethics of advising on NDAs in sexual harassment matters.22 On the other hand, Respect@Work points to instances where victims have seen NDAs as offering them some future protection of their privacy.23 This could be used to argue that, at least in the interim as other changes work through the system, victim-initiated NDAs should be permitted.24 The difficulty, of course, given the noted power disparities, lies in ensuring that such agreements are genuinely victim-initiated and consensual. Outlawing may be the safer path in this context but, at the very least, the use of NDAs needs to be addressed by regulators and, if not outlawed, subjected to stricter regulation. 

Strengthening the disciplinary framework

There have been relatively few instances of sexual harassment being prosecuted. This is unsurprising. Victims’ concerns over confidentiality (relevant to NDAs) and the risk of further harassment or victimisation act as a disincentive to bringing external as well as internal complaints. Sexual misconduct cases offer particular challenges. Complaints are often made well after the event, and the evidential challenges may be acute given the circumstances in which misconduct often takes place. 

Strikingly, however, attitudes to complaining may be changing. The Solicitors Disciplinary Tribunal in England is currently working through 63 cases alleging harassment or sexual assault, all launched in 2019, raising speculation that this is the start of the English legal profession’s ‘#MeToo’ moment.25 We have yet to see a similar surge in Australia. Whether the publicity around the findings against Dyson Heydon encourages more women to come forward remains to be seen. 

If we do experience a surge in complaints, we need to ask whether the jurisdiction is adequately prepared. Looking Australia-wide, the evidence is mixed in terms of the availability of reporting options and the support for victims through formal complaints and subsequent proceedings. 

Reporting is a critical issue and a significant barrier. Some of these constraints are difficult to overcome. Formal complaints against an individual, for example, cannot be initiated anonymously because of the obvious and proper requirements of procedural justice. Anonymous reporting could be developed further, however. It has an important role in regulatory practice, both in data collection and monitoring, and as part of a package of potential evidence that might establish reasonable grounds to audit a law practice under s256 of the Uniform Law. Progress is being made in the Uniform Law jurisdictions. The work of the New South Wales Office of the Legal Services Commissioner in developing an online platform for anonymous reporting was highlighted in the Respect@Work report,26 while the VLSB+C has taken steps to improve its processes by establishing a confidential reporting line to a specialist sexual harassment complaints team.27 

Two particular issues regarding formal proceedings may also require attention. First, the AWL has called for an extension of time limits under the conduct rules for dealing with complaints, recommending an increase to at least six years, with the regulator also having a discretion to review older historical cases where the evidence so merits.28 This proposal seems sensible in light of the structural constraints on and patterns of disclosure that we are now seeing. Second, there remain concerns whether judges and tribunal members are sufficiently trained in understanding the nature and effects of sexual harassment, and hence are able to manage these cases in a way that is appropriate and does not re-traumatise victims.29 Whether this issue will form part of the planned review of the Victorian courts and tribunals’ response to sexual harassment remains to be seen.

Sexual harassment is not a problem that will rapidly go away. As this article has shown, the Australian legal profession and its regulators are taking some important initiatives, in the context of clear evidence of systemic challenges. Building cultural change is central. Regulatory reform, while no magic bullet, has a part to play in that process. ■


Julian Webb is Professor of Law at Melbourne Law School, University of Melbourne. 

  1. International Bar Association, Us Too? Bullying and Sexual Harassment in the Legal Profession, IBA, 2019, https://www.ibanet.org/bullying-and-sexual-harassment.aspx.
  2. VLSB+C, Sexual Harassment in the Victorian Legal Sector: Report of Findings, Ipsos, 2019, https://lsbc.vic.gov.au/resources/report-sexual-harassment-study.
  3. While a significantly smaller proportion of men also experience sexual harassment, the data indicate that the problem is overwhelmingly gendered. It should also be acknowledged that less attention overall has been paid in the Australian profession to racial harassment, or harassment on grounds of sexuality, and their intersections with gender.
  4. AHRC, "Everyone’s Business: Fourth National Survey on Sexual Harassment in Australian Workplaces" 2018, https://humanrights.gov.au/our-work/sex-discrimination/publications/everyones-business-fourth-national-survey-sexual?_ga=2.9908989.991641658.1593049084-1162012318.1592960136.
  5. VLSB+C, Sexual Harassment in the Victorian Legal Profession, February 2019, https://lsbc.vic.gov.au/lawyers/practising-law/sexual-harassment/sexual-harassment-statement-profession.
  6. LCA, National Roundtable on Addressing Sexual Harassment in the Legal Profession, 17 July 2020, https://www.lawcouncil.asn.au/media/news/national-roundtable-on-addressing-sexual-harassment-in-the-legal-profession.
  7. David Estcourt, “Victorian government to probe sexual harassment practices in courts, law firms”, The Age, 12 July 2020, https://www.theage.com.au/national/victoria/victorian-government-to-probe-sexual-harassment-practices-at-courts-law-firms-20200712-p55bb5.html.
  8. See generally Dominique Allen, “Reducing the Burden of Proving Discrimination in Australia”, 2009, 31(4) Sydney Law Review p579.
  9. Note 2 above, vii.
  10. Note 2 above, viii.
  11. AWL, “Seven Strategies for Addressing Sexual Harassment in the Legal Profession”, 9 March 2019, https://australianwomenlawyers.com.au/wp-content/uploads/2019/07/Seven-Strategies-for-addressing-Sexual-Harassment-in-the-Legal-Profession-AWL-9-July-2019.pdf p2.
  12. Rosemary Hunter, “(De-)sexing the Woman Lawyer” in Jackie Jones et al (eds), Gender, Sexualities and Law, Routledge, 2011, 26 at pp27–30; Hilary Sommerlad, “’A Pit To Put Women in’: Professionalism, Work Intensification, Sexualisation and Work–life Balance in the Legal Profession in England and Wales”, (2016) 23(1) International Journal of the Legal Profession p62.
  13. See notes 5, 6, 11 above. 
  14. Donald Palmer, Normal Organizational Wrongdoing: A Critical Analysis of Theories of Misconduct in and by Organizations, Oxford University Press, 2012.
  15. Note 5 above, 66, 75.
  16. Current disciplinary proceedings against the former London managing partner of Baker McKenzie, for example, include allegations that he sought improperly to influence the internal investigation of a complaint against him: see Kate Beioley, “Baker McKenzie criticised over handling of harassment complaint”, Financial Times, 3 December 2019, https://www.ft.com/content/15155bc0-152c-11ea-9ee4-11f260415385.
  17. Report of the New Zealand Law Society Working Group, December 2018, https://www.lawsociety.org.nz/professional-practice/practising-well/bullying-and-harassment/
  18. AHRC, Respect@Work: Sexual Harassment National Inquiry Report, 2020, https://humanrights.gov.au/our-work/sex-discrimination/publications.
  19. See, eg, Determination ZTUVK, Concerning Mr X (Own Motion Investigation) NZLS Standards Committee (18 March 2018),https://www.lawsociety.org.nz/for-the-public/complaining-about-a-lawyer/standards-committee-decisions/2019/standards-committee-determination-following-own-motion-investigation-of-mr-x/; also Solicitors Disciplinary Tribunal (England and Wales) decisions in Solicitors Regulation Authority v Scott 11958-2019, Solicitors Regulation Authority v Beckwith 11887-2018, published at https://www.solicitorstribunal.org.uk/
  20. Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (NZ), rr2.8 and 2.9.
  21. New Zealand Law Society, “Statement on actions following release of working party report”, https://www.lawsociety.org.nz/professional-practice/practising-well/bullying-and-harassment/
  22. See also Richard Moorhead, “Ethics and NDAs: A CELs Think Tank Report”, 17 April 2018. Centre for Ethics and Law, University College London Faculty of Laws, available at SSRN: https://ssrn.com/abstract=3302567 or http://dx.doi.org/10.2139/ssrn.3302567.
  23. Note 16 above, 34.
  24. My thanks to AWL vice president Leah Marrone for bringing this point to my attention.
  25. Eduardo Reyes, “Seeing Person A”, Law Society Gazette, 2 March 2020, https://www.lawgazette.co.uk/features/seeing-person-a/5103255.article.
  26. Note 17 above, 756.
  27. Seehttps://lsbc.vic.gov.au/lawyers/practising-law/sexual-harassment/sexual-harassment-statement-profession.
  28. Note 11 above, 4.
  29. Note 16 above, 39.

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