The interns & the law firm

‘Review could cause more harm than good’

Law firm Russell McVeagh announced an external inquiry into itself on Friday, after more than a week of controversy over how it handled complaints by summer clerks of sexual assault and harassment by its male staff in Wellington two years ago.

Here, two lawyers specialising in legal ethics and employment law, Kathryn Dalziel and Stephanie Dyhrberg, examine the wisdom of what Russell McVeagh announced - and set out in bullet points what it should be doing. 

Why a review?

-We are surprised by this step and believe there is a likelihood this will cause more harm than good. It should be manifestly obvious to the firm (with some independent advice) where they went wrong. Even as Russell McVeagh announced the review, the firm was still saying it took appropriate actions.

-External reviews are more commonly used for state sector institutions: Russell McVeagh is a private partnership.

-Were complainants or their advisors consulted? It is not for the complainants to help Russell McVeagh work out where it went wrong. Just asking the women, after acknowledging it wasn't well managed would achieve the same result. The focus should be on addressing any issues for the women involved and learning the lessons from this whole process.

-In our experience complainants are negatively impacted in having to remember and then relive an awful experience. They will be extremely stressed, if they agree to participate.

-It is concerning to read that Russell McVeagh would make its staff available to the independent reviewer. Have staff consented to this? If not, Russell McVeagh, as a matter of employment law, cannot force a staff member to participate. 

-Has Russell McVeagh considered the impact this is going to put on staff who are no doubt under stress as a result of the media spotlight? Staff who are called to an investigation of sexual harassment or bullying are scared, highly stressed, and do not wish to be involved. Russell McVeagh will have to have an employee assistance programme in place to look after staff who are negatively affected by the inquiry. 

-Is consideration of whether the firm should have reported the alleged offenders to the NZ Law Society part of the scope?

-As we have seen with a number of state sector independent reviews, the complainants feel aggrieved by the process and/or the outcome:  the issues do not go away. 

Steph Dyhrberg, a partner at Dyhrberg Drayton Employment Law,  previously worked for Russell McVeagh Wellington. Photo: ddelaw.co.nz

What Russell McVeagh should be doing?

Russell McVeagh has two jobs:

-To make it right with the complainants

-To ensure their environment is safe and staff are protected from sexual harassment.

-Russell McVeagh should listen to the complainants. If they agree to a conversation, the complainants should be given a safe environment, as well as the opportunity for paid representation, support, counselling, and reimbursement of expenses including any time off work. Russell McVeagh should find out what they need to do to put it right for these complainants. If any feedback is offered, the firm needs to hear what the complainants think about Russell McVeagh’s culture, environment and how they should have handled this situation (noting the complainants don't owe the firm anything).

-Russell McVeagh should then have a long hard look at themselves, how they respond to workplace issues and how they treat people who complain. Creating the right culture is a challenge for all businesses in all sorts of areas: health and safety, privacy, performance expectations. In all these areas, businesses engage experts to advise them on what they should be doing. Private businesses do not set up an independent review. 

-We advise clients they should use a toolbox of effective strategies to create the right culture: leading by example, policies and procedures, training (including understanding impact on complainants), effective use of health and safety representatives throughout the business, confidential reporting, appointment of suitable contact people etc are well established tools, if used properly.   

Kathryn Dalziel is a partner at Taylor Shaw specialising in employment and privacy law as well as civil litigation and professional ethics. Photo: Taylorshaw.co.nz

Review

-We are reluctant to encourage Russell McVeagh to undertake a review where it is likely to cause harm and would have wanted to hear that complainants and staff had approved or consented to process. In the context of the firm's communications to date about its process, an external review does not seem like the most appropriate response.

-If there is to be a review, the firm should consider two or more reviewers (a panel).

-The panel should be independent and credible. 

-The panel should develop terms of reference in consultation with the complainants, Russell McVeagh, and the staff who agree to participate.

-Possible topics for the terms of reference include: specific incidents, Russell McVeagh’s handling of those incidents, improper or wrongful use of a person’s authority or status in the firm, the reasons for and the proper response to inappropriate behaviour, looking after those who experience sexual harassment, prevention responses and ensuring staff know what is expected of their behaviour, governance/management accountabilities, reporting to the Law Society.

-The Panel should ensure the environment is confidential and safe for the complainants and staff participating.

-The Panel should be reconvened in 18 months time to ensure appropriate responses, based on their recommendations, have been put in place.  

* Kathryn Dalziel is a partner at Taylor Shaw specialising in employment and privacy law as well as civil litigation and professional ethics. She lectures in legal ethics and employment law at the University of Canterbury.

* Steph Dyhrberg, a partner at Dyhrberg Drayton Employment Law,  previously worked for Russell McVeagh Wellington, and as a Crown Counsel in the Employment and Education team of the Crown Law Office. She is a Vice President of the Wellington Branch Council of the New Zealand Law Society and Convenor of the Wellington Women Lawyers' Association.

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