Women in the legal field have long faced difficult challenges in the workforce. Photo / Getty Images
Wanting your legal fix? Look no longer. Today we're launching a new column entirely focused on the trials and tribulations in and outside the legal industry.
Raising the Bar is written by Sasha Borissenko, former editor of New Zealand Lawyer and one of the journalists who broke the story of inappropriate sexual conduct by senior partners at law firm Russell McVeagh.
COMMENT:
Women were appointed partner, CEO, and board member overnight, but it's been more than a year since Russell McVeagh made headlines, and it's hard to gauge whether the surveys, inquiries, reports, and proclamations of "great change" from those in power are anything more than lip service.
Few survivors came forward, and fewer alleged perpetrators were sanctioned. The senior lawyer of the two alleged perpetrators behind the Russell McVeagh revelations still holds a practising certificate, according to the Law Society website. And with New Zealand's hefty defamation laws, no media outlet dared to name him.
Without sanctions, did the alleged events even happen, prospective clients might ask? A better question might be, if they knew, would they care? It would appear that a fear of mudslinging against alleged perpetrators is prioritised over the protection and reputation of survivors and those who decide to speak out.
Rather than wax lyrical I thought it best to ask 13 of the largest law firms in New Zealand for their take on non-disclosure agreements (or confidentiality clauses), examples of policy/structural changes, staff turnover, and had there been any complaints of sexual harassment or misconduct since February 2018.
Russell McVeagh has implemented 18 of the 48 recommendations made by Dame Margaret Bazley's independent inquiry - which was commissioned and released by the firm itself this time last year. The report glossed over the alleged offending, Bazley didn't talk to all the relevant parties, and the prevalence of alcohol and a 'work hard play hard attitude' was highlighted so much that it inadvertently served as a justification for the incidents - a form of victim-blaming to some.
A year on, the firm has "made significant progress on [its] cultural transformation" however it still has "much work to do", CEO Jo Avenell said. "The transformation that we are committed to seeing through is significant and will take time."
The firm saw positive results from its recent staff engagement results, and training in health and wellbeing will continue to be a priority. Specifically, the firm launched a confidential phone line - managed by Deloitte Australia - to enable all current and former staff to raise any concerns.
Bell Gully's Anna Buchly said the firm had engaged with its team on a "number of policies and initiatives to ensure our environment remains positive" and that its staff turnover had been normal since the story, with summer clerk applications having risen over a two-year period. Lane Neave, Chapman Tripp, and Simpson Grierson also had a record number of applications.
Duncan Cotterill, DLA Piper, and Kensington Swan had undertaken a number of changes. And Chapman Tripp and Simpson Grierson, echoing similar sentiments, had updated their respective bullying and harassment policies and implemented training programmes.
Buddle Findlay wished to respond - but needed more notice, while Anderson Lloyd, Meredith Connell, Minter Ellison, and Wynn Williams didn't respond to my queries. Of those who commented, only Lane Neave responded to whether there had been any complaints since February - there hadn't - and offered insight into the use of non-disclosure agreements.
"There are often legitimate reasons why parties want to enter into non-disclosure agreements and include confidentiality clauses, in appropriate circumstances," a spokesperson said.
But it's unrealistic to expect firms to adequately self-regulate. The much-anticipated results into the Law Society working group, headed by Dame Silvia Cartwright, were released in December - a week shy of the Christmas shutdown period.
Conducted by a group of volunteers who were invited and selected by the Law Society, the report recommended changes to the rules around professional standards and reporting, minimum obligations on workplaces - including deterring the use of non-disclosure agreements, a complete shift in its complaints process, and changes to the procedures of the NZ Lawyers and Conveyancers Disciplinary Tribunal. A new centralised team in the Executive Director's office will ensure the roll-out of all of the recommendations in due course.
The Law Society's practices around disciplinary proceedings and transparency, however, have largely remained unchanged.
"The provisions of the Lawyers and Conveyancers Act 2006 mean the Law Society is unable to provide information on complaints received about the conduct of lawyers or law firms. Where a lawyers standards committee decides that information on the resolution of a complaint should be published, we will do so," the Law Society said.
This occurred in January, when the Law Society published a committee determination on its own motion investigation of sexual harassment by a partner. The partner wasn't named.
Last year, Justice Minister Andrew Little said he'd conduct his own inquiry into the Law Society if he wasn't satisfied.
He now receives quarterly updates from the Law Society and "I intend to keep monitoring progress on this until I am satisfied the issues raised in the Bazley and Cartwright reports have been significantly addressed", he said.
"Whilst I am disappointed at the speed of which the Law Society initially responded to the revelations, I am receiving regular updates on the work that is being progressed by the Law Society since the release of the Cartwright report in December 2018. I will continue to ensure this work is prioritised.
"I am now actively considering whether the legislation under which the Law Society disciplines lawyers is adequate. Any complaints process must observe the principles of natural justice.
"I have also asked officials to review whether the current law is adequate to deal with the employees, both legal and non-legal, of law firms."
Cue WorkSafe's role in ensuring safe workplaces. The body - like the Law Society - have said they're limited by the current legislation as to what they can do in an employer liability and workplace hazards context. Workplace CEO Nicole Rosie has explicitly said that if it's a sexual assault and harassment issue, it's a matter for the police.
This is reflected in the numbers where in 2018 WorkSafe received around 400 notifications of bullying and harassment cases, and prosecuted none. Since February 2018, Worksafe received 12 notifications of sexual misconduct, which were referred to the police.
The issue with sexual misconduct investigations by police is that only 10 percent of sexual violence cases are reported. And just 13 percent of overall reported cases result in a conviction. But this information isn't new. It will be interesting to see if the changes in the criminal justice system announced by the Government last week make it safer for people to come forward.
In an employment context, the issue still is that there's an emphasis on the survivor, and not the structure that allowed it to happen in the first place.
Meanwhile, Russell McVeagh remains on the panel of law firms to which government departments instruct work. "In my view, the disclosures about Russell McVeagh are unlikely to be confined to that firm," Little said.
The Justice Minister has reiterated his expectation that addressing the unacceptable culture should be a priority area going forward. How much of a priority that is for all parties remains to be seen.
As it stands, until the safety of people is culturally more important than power and money, we might be waiting a long time.
If you've got any tips, legal tidbits, or appointments that might be of interest, please email Sasha - on sasha.borissenko@gmail.com
For too long, ‘accident’ has been a blanket term that absolves responsibility.