Sometimes monumental changes in the world just happen almost overnight. On November 9, 1989 the Berlin Wall fell. It fell because of a bungled press conference and a lack of clear direction to the border crossing guard, Harald Jäger who simply opened the crossing without instruction. Bingo! - no more wall and shortly reunification of Germany.
In October 2017 the #metoo and #timesup movement began with revelation by one, and then many women of the sexual abuse that they had received at the hands of those involved in film making.
On February 23 this year the boss of UNICEF quit his job admitting that he had been involved in “unsuitable and thoughtless conversations” (i.e. texts) with three young female members of staff. The British Parliament has been rocked with allegations of sexual abuse by MP’s. These events are all part of the global move towards acknowledging that sexual misconduct is just plain wrong.
Also this month, Russell McVeagh, one of New Zealand’s most respected law firms has been the subject of much media comment after revelations of alleged sexual misconduct by senior lawyers against summer clerks. Is the publicity which has followed the reporting of these events the New Zealand legal profession’s #metoo/#timesup moment? I hope so.
The profession has long been aware of reports of misconduct - primarily sexual - towards women lawyers and clerks. It happens to men too - just not so frequently.
In 2016 I wrote an article in LawTalk called “It’s our problem, not theirs”. This article was published in response to two reports - one from the United Kingdom Bar Standard Board on “Women at the Bar” published in July 2016 and a summary of Josh Pemberton’s report “First Steps: Experience and retention of New Zealand junior lawyers”, 1 July 2016. These reports made sobering reading. Two-thirds of women graduates surveyed by the Pemberton report reported that in their view their gender had a negative bearing on their prospects of a future in the legal profession. They reported a lack of senior female role models and workplace bias against women. They said that in their view the profession still valued “stereotypical male traits” and that their voices did not get heard. They reported explicit sexual discrimination. A few referred to the fact that in their workplace women were referred to in a disparaging way, with one reporting that female employees were referred to as “battery hens”.
One woman in a top tier law firm reported that she was objectified and there had been sexual harassment within the firm. As a senior lawyer, I was horrified to read this. It paints a grim picture of our profession.
In the UK the position was also bad. The Bar Standard report showed that two out of five women barristers who responded to their survey had experienced discrimination and two out of five had suffered harassment at the Bar, with only a small proportion reporting this. This harassment was not reported because women barristers were concerned about the negative impact upon their career. These concerns resonated with me and in the discussion, I have had with other women about sexual harassment and abuse they have suffered the women fear often that their career will suffer if they complained. It is ironic that for a profession which advocates for the rights of others we cannot advocate properly for ourselves.
I am a great believer in the legal profession and the values that it embodies. I believe we can take steps to ensure that all who come into the profession should have a safe working environment. I don’t think that I am naive in believing this possible. Maybe this is because I think that these revelations are our #timesup moment and that there is great momentum to achieve a change.
The majority of lawyers that I have met in my legal career have been intelligent, articulate, courteous, supportive of lawyers in the profession. They understand that their role as officers of the Court means that their first obligation is to be fair and honest in all their dealings, to treat all with courtesy, to put these obligations ahead of the interests of their firm, their clients, their partners. What makes a good lawyer has nothing to do with gender or sexual orientation, it has everything to do with these attributes. Good lawyers are courageous and stand up for the rule of law when others challenge it. They are aware that the privilege that we have as lawyers carries with it obligations. Those obligations are to behave appropriately and honestly and where necessary put the interests of others before our own.
But it does seem clear that some in our profession have been failing to meet these standards and that others in our profession have allowed them to go unchallenged. But we cannot sit back, and if this truly is a #timesup moment then we should be rejoicing because the legal profession will be better for the change.
Surely it is not an idealistic dream to think that as a profession which upholds the rule of law and believes in justice that we all have a responsibility for ensuring that where we see workplace bullying, sexual harassment, and abuse or any misconduct we do something about it. We should be our own whistle blowers.
All lawyers should be horrified that the profession has that we have accepted conduct that we would condemn if directed at our clients or our children or friends. Reputation and reputational risk are vitally important in any profession and every lawyer knows that their reputation is key to their success. Generally, that reputation has just been about someone's skills as a lawyer but now is the time to make reputation also about commitment to the values of the profession.
These values are reflected in our professional obligations. In Chapter 2 of the Lawyers and Conveyancers Client Care Rules under the heading “Rule of Law & Administration of Justice”, Rule 2.8 says lawyers must report misconduct if there are reasonable grounds to suspect misconduct (provided no client privilege is breached) and may report unsatisfactory conduct. The report can be confidential. I wonder how many of the allegations of sexual misconduct or abuse have led to a confidential report? I suspect not many. Why is this? There would be no question about reporting if, for example, a lawyer had stolen money from clients. Fraud seems easy for us to condemn, sexual misconduct not so much.
But the profession needs to ask who it is protecting and why we are protecting them? If we fail in our duty to protect the vulnerable and fail to do our duty as professionals to report misconduct to the Law Society, then we let down the vulnerable. It is easy to argue that we don’t know exactly what went on in some of these allegations of sexual abuse. I fully accept that. But surely the right thing to do is not to try to deal with complaints in a hush-hush manner but to be open about how wrong sexual misconduct is, to be clear about the conduct the profession will not tolerate and to have the courage of our convictions. In saying this I know that the young people concerned may wish to have anonymity which is their right, but it doesn’t stop anyone who sees the abuse or to whom it is reported from contacting the NZLS in a confidential manner.
The NZLS President, Kathryn Beck has said that the legal profession must not forget the lessons that we have learned from this event. I agree. As President-Elect of the New Zealand Bar Association, I echo this view and say we must do more. I believe we should all embrace the #timesup movement. We must be seen, be heard, be counted, speak up, stand up for what's right and support the vulnerable.
I know we can do better. Lawyers should be leading the way in the fight to stamp out bullying, harassment and sexual impropriety in the law. We shouldn’t be the poster boys and girls for it.
* Kate Davenport is an Auckland-based civil and commercial litigator with more than 23 years experience at the independent bar. She has a special interest in professional regulation