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Catriona MacLennan: When 'ethics' hurt careers

Banning women lawyers from working on files alongside the partner accused of sexual misconduct fostered his career and hindered theirs, writes Catriona MacLennan

Russell McVeagh’s response to complaints of sexual harassment and assault of female interns by male partners was to invoke the “Pence rule”.

The law firm thereby demonstrated that upholding the status quo and hushing up what was happening were more important than the safety – and careers – of the young women.

United States Vice President Mike Pence famously told an interviewer that he makes a point of never dining alone with a woman who is not his wife, or attending events at which alcohol might be served without his wife present.

The problem with this is that it punishes women by limiting our careers.

Sexual harassment is overwhelmingly perpetrated by men against women, but limiting women’s participation in workplace events prevents us from networking, picking up information and making contacts who might advance work opportunities.

One Russell McVeagh lawyer about whom complaints were made left the firm but continued to do 'legacy' casework for two clients.

Russell McVeagh explained that this was for reasons of “legal ethics”. 

Really?

Clause 4.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 provides that a lawyer who has been retained by a client must complete the regulated services required by the client. 

The exceptions are if the client no longer wants the lawyer to complete the work; they mutually agree the lawyer will no longer act, or the lawyer ceases acting for “good cause”.

The 'good cause' reasons relate to actions of a client, rather than the actions of a solicitor.

The Law Society on its website makes available to lawyers detailed information about the rules by which they must abide.

This includes templates for Letters of Engagement, Terms of Engagement and Client Care information.

If a partner had been involved in embezzlement, would he be permitted to continue casework? Of course not. So is it just that sexual assault is not viewed as being serious?

The Letter of Engagement is in the name of the law firm, rather than the individual lawyer. This appears to make it plain that – as one would expect – the client is engaging the firm rather than an individual lawyer to do the work.

The other templates also refer to “we” and “our”, rather than to an individual lawyer.

Instead of preserving the status quo as much as possible by allowing the former senior lawyer to continue lucrative work, Russell McVeagh would accordingly have had the option of transferring the work to another partner, or to someone outside the firm.

If a law firm truly believed that sexual assault was a major issue, and protecting young women’s careers was important, would that not have been the appropriate course of action?

If a partner had been involved in embezzlement, would he be permitted to continue casework? Of course not. So is it just that sexual assault is not viewed as being serious?

In addition, lawyers’ obligations in the Rules are subject to overriding duties to the court and to the administration of justice.

It is far from clear to me at all that Russell McVeagh was obliged to continue working on the files. 

The firm’s focus on ethical obligations in relation to the alleged requirement to allow the former staffer to continue working on files also sits oddly with its apparent failure to comply with lawyers’ obligations under Rule 2.8 to report misconduct to the Law Society.

According to Newsroom's reports, the Society only became aware of the matter when one of the young women involved reported it.

This follows a convenient and familiar pattern played out over hundreds of years: the male predator emerges from the situation with his reputation intact, still doing interesting and prestigious work and earning a very high income, while victims suffer the after-effects for life – a number of the five female summer clerks felt unable to accept jobs at Russell McVeagh.

The other step taken by the firm was to ban women solicitors from working on those files. This was said to be to protect staff.

It is hard to credit that, in the 21st century, this would be considered an appropriate course of action.

It is incredibly difficult for women lawyers to obtain work and to advance in the profession. Commercial work still goes overwhelmingly to men.

If young lawyers cannot obtain experience, they cannot advance.

Russell McVeagh’s actions accordingly fostered the career of the male lawyer who is accused of the misconduct, while depriving young women of experience.

Did it occur to no one in the firm that, if they had to ban women from files, the solution they had come up with was the wrong answer to the problem?