James Farmer

Legal Commentary

Bullying, Harassment and Gender Bias

Tuesday, May 22, 2018
Bullying and harassment have become big topics in the judicial and legal profession of late, highlighted by accusations of sexual harassment of young women summer clerks and a survey conducted by the Criminal Bar Association which claimed that a majority of those surveyed had witnessed or complained of bullying from the Bench.   

Gender equity

Allied to them is the topic of gender equity, which has received some impetus because of the fact that by a majority of one there are now more women practising lawyers than men in New Zealand.  And yet, it is said, women remain in the minority in terms of partners in large law firms, Queen’s Counsel and Judicial appointments.  The fact that 3 of the 5 Judges on our Supreme Court are women might be regarded as an Inconvenient Truth but the statistics otherwise bear out the fact that women lawyers do not have an equal footing at the senior levels of the profession with their male counterparts.  I undertook a survey of the 6 largest law firms and found that only 1 firm had 30% or more female partners.  That firm incidentally was Russell McVeagh.

Among those firms, Russell McVeagh also led the way in developing a gender equity policy aimed at ensuring that women lawyers achieved a higher proportion of senior work, transactional as well as litigation.  Both the New Zealand Law Society and the New Zealand Bar Association, initially independently but in the latter stages co-operatively with each other and with Russell McVeagh, also initiated and developed gender equity schemes.   The net result was a scheme to which subscribers  (corporate clients, legal firms and large sets of barristers’ chambers) commit to a policy which requires annual reporting of the efforts made to provide a degree (expressed as a target) of reverse discrimination (my words) to the allocation, briefing or instructing of new work.

Not all women lawyers were entirely happy with the scheme.  A courageous article appeared in Law Talk for March 2018 by Joanna Trezise – courageous because, as its title (“Gender and Equality: an alternative view of the new policy on equitable engagement”) stated, it dared to stand up against the tsunami of prevailing wisdom of how inequality should be addressed.

Ms Trezise made a number of points that warrant reflection in our enthusiasm (of which I too have been guilty by virtue of my membership of the Bar Association’s Gender Equity Committee) for giving added impetus to a development that is already occurring naturally.  She says, first, that “eventually, and without interference, the gender percentages in the senior ranks will equalise just as those of the profession overall have equalised” and, after acknowledging that this will take time and that “people don’t want to have to wait”, asks the question: “Is it necessary (or equitable) to attempt to artificially accelerate this progression?”  For herself, she adds that she does not welcome a situation where she may never know that her selection to undertake a senior role in a case was because of her own perceived merit or because “it was necessary to meet a quota”.

Ms Trezise does strike a chord with me when she points out that it is not only women lawyers who have been disadvantaged by factors unconnected with merit: “Those from lower socio-economic groups, Maori and other racial or cultural minorities, those who didn’t attend the ‘right’ schools, those from the LGBTIQ community, and those with disabilities … are also under-represented in the senior ranks of our profession” [and one might add the Judiciary].  Then comes the killer question: “… why the focus on women?  Is it truly equitable to rank disadvantage and find one category more deserving of assistance than another?”  Even more controversially, she then asks: “… is it fair for the male practitioners who may now be passed over for opportunities purely for being a man”.

These would be dangerous questions for a man to ask in the current climate.  I repeat that Ms Trezise (who I have never met) is one courageous lawyer.

That does not of course mean that discrimination in relation to women lawyers does not still exist in many other respects.   Yola Verbruggen, in an article in April/May 2018 IBA Global Insight, identifies the fact that, because of child-bearing, women lawyers are often not accorded sufficient flexibility in working arrangements that they need to meet their family obligations (such as spending some work time at home) despite the adoption by many firms of the concept of flexible working hours.  She quotes one lawyer who says that implicit biases often stand in the way of giving effect to the development of technological tools that make flexible working arrangements possible.  She quotes another lawyer who says:

“Presenteeism is rife and you have to be seen to be in the office.  There is a stigma attached to working remotely because you are not visible.”

The tyranny of the billable hour

Allied to that is the pressure of recording time and billable hours targets.  This raises the issue of the value that is put on a lawyer’s contribution to his or, more particularly, her firm.  When I was a partner at Russell McVeagh in the 1970s, there were no budget or budgetary targets.  The only person in the firm who knew each partner’s annual billings was the firm’s accountant (if he chose to isolate them, which I doubt that he ever did).  

There were older partners then who, if we thought about it, probably didn’t achieve the same level of fees as younger partners but they were valued, first and foremost, for their maturity, wisdom and experience and for the fact that, though not legal technocrats or having a fashionable specialty, they set an example as lawyers who had high ethical and professional standards to whom we could always turn for guidance and counsel.

Budgets and billable hours probably do impact on women with families more than men but the reality is that to a greater or lesser extent all lawyers are pressured by this phenomenon.  I know a number of male lawyer partners, in large firms especially, whose goal – forced on them by this business model – is to earn enough money by the time they are in their mid to late 40s to be able to “get out of the law” and lead a more satisfying life doing something else.   That is a terrible loss of talent and experience to the firms, as is the women lawyers who leave earlier, and shows the short-sightedness of a business model that creates burn-out of the firm’s talent. 

Bullying by the virtuous

Now, back to bullying.  Let us start with what we mean by the term.  This may be important because, as was said by great Greek philosophers well before Christ was born, language can be corrupted to suit the objectives of the speaker.  As has been said, in relation to the writings of Plato and Thucydides1:

“The corruption of language returns us to a definition of justice enunciated at the opening of the dialogue by Polemarchus, who call justice ‘doing good to one’s friends and doing harm to one’s enemies’.   The perversion of words into their opposites not only flatters the democratic individual by placing him beyond criticism, but they also enable him to define social reality in self-serving and instrumental ways.”   https://pypaik.wordpress.com/2015/02/04/plato-and-thucydides-on-the-changing-meanings-of-words/

A wonderful example of this, in the present context, was exposed in a piece in the Sunday Star Times on 4 March of this year by Damien Grant.   Referring to the condemnatory statement by the Deans of New Zealand’s six law schools relating to the Russell McVeagh situation and to the separate announcement by the Dean of the Auckland Law School that that Law School was suspending its association with Russell McVeagh (despite having strongly encouraged the summer clerk programme of the big firms for many years), Grant says that the “truth is that the ensemble of timid deans can read the prevailing winds and are desperate to be on side with whatever chanting rabble currently holds sway in the public square”.  This they have done, he adds, “in a public fashion that almost looks designed to damage the firm’s reputation and, by contrast, burnish the deans’ own standing”. 

While acknowledging that misconduct of the kind under scrutiny is particularly disappointing in a profession “where we expect to people to be judged objectively on their abilities and rewarded, both economically and in status, for their achievements, and not subject to harassment, unwanted attention or abuse”, Grant, though not using the term “bullying” or referring to Plato and Thucydides, says of the deans:

“To see one set of lawyers seek to humiliate and denigrate other lawyers for their own gratification deserves condemnation.  The law, the right to its protection, the expectation of due process is the one thing that separates civilisation from a lynch mob and to see students used as pawns by powerful leaders in the legal profession is utterly reprehensible.”

The different forms of bullying

The usual meaning of “bullying”, or the one that is most relevant to the present discussion, is to use superior strength or influence to intimidate someone, typically to force them to do something.  It is that power imbalance which should provide the distinction between improper sexual harassment (for example, Harvey Weinstein) and truly consensual sexual activity.  

Bullying exists also other than in relation to sexual misconduct.  Thus, a young lawyer (male or female) succumbing to employer pressure to be seen in the office from early in the morning to late in the evening and at weekends2 is, in my view, the victim of bullying, although those inflicting the pressure on that lawyer (and others in the same position) will undoubtedly see that as a virtue imposed for the good of the victims as well as for themselves. Such pressure may not be explicit.  Overloading a lawyer employee or associate with excessive work or condoning or encouraging, through holding out the prospect of advancement in the firm, excessively long hours of work as part of the firm’s culture is no different.  Part of the problem is that of partners in law firms over-promising their clients – “we can turn this around overnight” – and passing the delivery problem on to the associates and more junior lawyers.

In these ways, in the terms of the great Greek philosophers, is social reality re-defined in a self-serving and instrumental manner.

What of bullying by Judges? 

Judges are undoubtedly in a position of “superior strength or influence” with the power to intimidate counsel.  The response by the Chief Justice to the Criminal Bar Association’s survey was to urge practitioners who had been subjected to judicial behaviour of that kind to complain to the Head of the relevant Court – Chief District Court Judge, Chief Judge of the High Court, President of the Court of Appeal, the Chief Justice in the case of the Supreme Court and presumably the Heads of the specialist Courts such as the Employment Court and the Environment Court.  There is also the possibility of a complaint to the Judicial Complaints Commissioner.

It would be interesting to know how many complaints of that kind have been made since the Chief Justice’s direction.  I would hazard a guess and say very few, if any.   

I would think myself that the first responsibility must be with the Judges themselves, both individually and collectively.  One would hope, first, that someone who was thought to have the qualities to be appointed as a Judge would have sufficient responsibility and insight into his or her own behaviour to understand when he or she is crossing the line between legitimate and valuable testing of the propositions being advanced by counsel, on the one hand, and discourtesy and intimidation on the other.   One would hope also that where Judges observe (in an appellate court) or hear of rudeness by a colleague they would raise it themselves with the Judge concerned.

Mutual respect and courtesy is, or should be, the hallmark of exchanges between Judges and counsel.   This requires counsel to be fully prepared for a hearing and to present submissions in a way that is free of hyperbole and that genuinely “assists” the Judge, even if it is to a particular point of view.  On the other side, it requires a fair degree of patience by the Judge to allow what may be a complex or difficult argument to be developed in a logical way.

One problem with pre-hearing written submissions is that they may predispose a Judge to pre-determination.  This can occur particularly on an appeal from what might have been a very lengthy or complex trial where time is needed to explore the evidence where findings of fact are in issue.  Page limits on written submissions, though having an obvious attraction, may in such cases require a countervailing judicial willingness to allow counsel at the hearing present the case in their own way (assuming that way to be one that is reasonably efficient!)

Returning to the question of judicial accountability, I have to say that I think that the senior Bar has a responsibility to support younger lawyers who are being badly treated by a Judge as well as supporting Judges too who are wrongly attacked by litigants or commentators.   (I emphasise the word “wrongly”, as witness the recent events surrounding Catriona MacLennan’s call for a District Court Judge to resign.)   

As to the first of these responsibilities, I was hugely impressed by the reaction of the (very) senior Bar in New South Wales, when I was practising there, when a new Judge threatened two young counsel with committal because of a view that he had formed that they may have breached an undertaking (a view that was disputed).  He directed them to appear before him in a week’s time “to show cause why I should not commit you for contempt”.   At the appointed time, the Judge entered the Court to find 4 of the most senior Queen’s Counsel in the State at the Bar table representing the two counsel who had been summonsed.  More than that, the Court room was packed with other barristers (all wearing wigs and gowns). (Because the two counsel concerned were in my Chambers, I was among them.) Roddy Meagher QC, a man of enormous reputation who was later appointed directly from the Bar to the New South Wales Court of Appeal, said to the Judge: “I understand that Your Honour wishes to hear about the law of contempt and I am here to instruct you.”  He then launched on a submission that outlined the origins and development of the inherent jurisdiction of the Court, its objectives and its limitations.  The embarrassment of the Judge was evident.

In that situation, it is an interesting question as to who was bullying whom.  The great former Chief Justice of Australia, Sir Owen Dixon, provided a clue to the answer many years before when he said that the role of the independent Bar was greater than the vitally important constitutional role performed by Judges.  That role is to act to protect against abuse of power, whether for their own clients or Judges who have been subjected to it, but also on those thankfully very rare occasions when a Judge may also be guilty of abuse of judicial power.

Is there a moral to this story?

I have referred above to the writings of Greek scholars before the birth of Christ.  Christ himself is recorded in the Authorised King James Version (1611) of the Bible (chapter 8, 3-7) as follows:

“And the scribes and Pharisees brought unto him a woman taken in adultery; and when they had set her in the midst, They say unto him, Master, this woman was taken in adultery, in the very act.  Now Moses in the law commanded us, that such should be stoned: but what sayest thou?   This they said, tempting him, that they might have to accuse him.  But Jesus stooped down, and with his finger wrote on the ground, as though he heard them not.  So when they continued asking him, he lifted himself up, and said unto them, He that is without sin among you, let him cast the first stone at her.”

And now back to some serious, fee-earning, work.


Jim Farmer
21 May 2018

I am grateful to Graham Hill, lawyer from Nelson, for starting me down this track by referring me to Thucydides. 

Reference is made to a number of pieces I have written here on the virtues of living a balanced life style, a model that is not consistent with the business models adopted by many law firms, which partly explains the exodus of both junior lawyers and even relatively senior litigation partners in firms who find the continuing pressure of “meeting budget” increasingly less appealing than practising at the independent Bar.

Postscript

Since writing the above account of members of the NSW Bar packing the courtroom when a judge had summonsed two junior barristers to show cause why they should not be committed for contempt I have been reading James Comey's recently published book "A Higher Loyalty".  he gives the following account of a time when he was a US Attorney in Richmond:

"Our efforts to prosecute gun crimes and reduce Richmond's homicide rate was bitterly resisted by some of the federal judges in Richmond, who saw those kinds of cases as unbefitting a "federal" courtroom.  I didn't care and my team in Richmond didn't care.  We were trying to save lives, so we plowed ahead, infuriating one senior judge.  He responded by issuing an order holding Helen Fahey, our U.S. Attorney, in contempt for some minor administrative error: failing to put in a request to have the U.S. Marshals bring a prisoner to a scheduled court date.  Fahey had nothing to do with the little pieces of paper we filled out to schedule prisoner movements.  She typically came to Richmond once a month, and there was no conceivable basis for involving her personally.  But the judge did it to rattle us and her.

He didn't know Helen Fahey.

The day of her contempt hearing, the courtroom, courthouse hallways, and street outside were packed with dozens of police officers and federal agents, including police horses and motorcycles on the street.  Fahey walked calmly to the "defendant's" table in the courtroom and waited.  The judge came out and was so rattled himself by the show of law enforcement community support that he began ranting about what a problem I was, ignoring Fahey entirely and directing his venom to the audience, where I sat.  He then dismissed the case against her.  She thought it was hilarious, and told us we were doing the right thing and to press on."

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