Sexual harassment still a problem in the legal profession in 2017

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He sat across my desk, in my office. He looked me in the eye and said,’Did you know that you can tell the colour of a woman’s nipples by the colour of her lips?’

Another used his 120kg of bulk to trap me against a wall at a crowded work function, leering at me.

A co-worker clumsily groped me in a public space at a conference, again and again. I left

A professional colleague handed me a sheaf of his writing, watching me read his poorly written soft porn as we sat in a public cafe.

As I attempted to call our meeting to an end, he stood in my office so as to block my exit from behind my desk. My office door was open at all times.

These are some stories from my working life as a practising lawyer and as a legal academic over 30 years. One of these stories happened this year. I know that other women have it worse.

These experiences came to mind as I read allegations this week, made by three young women lawyers about their experiences working for a senior lawyer. The man allegedly sent the women to fetch his Viagra from the pharmacy, hired based on physical attractiveness, had pornography visible in his office, made sexually explicit comments, and showed a drawing of his penis.

While reading the stories of the three women, I reflected back on my feelings in similar circumstances. At first I thought it was deep shame that I felt – even after all these years. But I suspect that it is in fact fear. I was afraid of the potential of force – of violence – that each of these situations represented. I can only imagine the fear and confusion experienced by the young women who shared their stories.

Remember – this all happened in professional contexts.

I’ve written before about sexism and harassment in the legal profession (and here, and here). The stats aren’t getting better. Those in the legal profession know it is unlawful to sexually harass. Such behaviour breaches discrimination law, and workplace law. For good measure, it also breaches professional ethics. But it continues.

In some quarters, such behaviour is an open secret. This makes us all, the entire profession, complicit. The young women who have made the most recent allegations – and others like them – have thus experienced powerlessness, and maybe those same feelings of fear that I have had, in the face of our complacency.

There are three actions we in the profession must take. Especially senior members of the profession, and especially men.

  • Call out sexual harassment. Expose the open secret by telling the harasser to stop. It’s not banter, it’s not a joke. Tell them straight just to stop. Team up with others and together tell the harasser that it is unacceptable behaviour in your workplace. Use the power of our professional culture for good, and turn things around.
  • Support the person on the receiving end of the harassment. Ensure that they are supported by others. Shut down gossip. And, do not be that gossip. Hard, I know, in a gossipy profession. But gossip adds to the complicity.
  • I think we need to look to the overall culture of the profession, and our tacit acceptance of such behaviour – and to look for action outside discipline as a first call. However, if they don’t stop, report the behaviour to your professional body. And call the professional body to account if it fails to act.

If such actions are reported to you, it’s not enough just to support the complainant. You must deal with the alleged harasser too. In my own case, I have been personally well supported by men – but in some cases the man about whom I have complained has not been censured, and his bad behaviour continues.

It is therefore our responsibility as employers, and as colleagues, to alert the man to his poor behaviour, to let him know that it is unacceptable, and to sanction it. Otherwise, we know that it will continue. And we will see yet another generation of lawyers suffer the same fate.

I can’t believe I’m writing this. In 2017. About lawyers. But here it goes.

Please. Stop sexual harassment. Do not continue to be a bystander.

‘Add tech and stir’ is no recipe for innovation

AddTech.pngMy previous post gave an overview of the Law Society of New South Wales’ flip Report, on the future of law and innovation in the profession. My overall impression is that the Report might provide a useful and very gentle overview of the road ahead, but fails to engage in any real sense with the way in which technology will – and already is – changing law and legal practice.

Nowhere is this more apparent than in the chapter devoted to legal education. This poses a real limit on the possibilities for innovation – especially to the extent that regulatory bodies are likely to accept the Report’s statement that existing knowledge and skills must remain.

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Blockchain: is it the next big thing

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Old school ledger

I will start by answering the question in the title: I don’t know.

This post is directed principally at lawyers and legal academics, arguing that whatever the trajectory of Blockchain technology, it is sufficiently significant that we must attempt to understand it at some level at least to think critically about its potential implications.

Some lawyers, principally in Big Law firms with a large banking and finance client base, are deeply engaged in Blockchain including to suggest that it will open new fields of practice. Other lawyers understand but dismiss its potential. In my experience however, the majority is unaware of its existence or cannot really say what it is. This latter position is fair enough, because in my view it’s not easy to find a simple explanation that lacks breathless proclamations of a new world order.

I’m a newcomer, having bitten the bullet after I observed ‘chatter’ about Blockchain had reached a tipping point. In my social media feeds, in recent months it has moved from random mentions (innovators) to dedicated early-adopter status even reaching mainstream media… This must surely mean that it’s time for lawyers to become conversant in the technology and its possibilities (and limitations). This post is a low-tech overview of some of the issues, from a lawyer’s perspective.

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Professionalism online (for new lawyers)

I have been meaning for some time to write a post about what’s described as ‘personal branding’. My interest lies in providing a constructive platform for those entering the profession and who seek to dip their toes into social networks as part of their development of a professional identity.

I was prompted again by the recent cases of academics Roz Ward and Martin Hirst each of whom has had their employment threatened due to a personal Facebook post unrelated to work, and a series of publicly available tweets, respectively. These cases, and many others like them, raise a myriad of issues about privacy, employers’ rights, employees’ responsibility, contemporary standards of discourse, and working out when they apply.

Before I could get my thoughts together to finish a post, Martin Hirst posted on his own blog most eloquently about the issues he and others face. So I have scaled back for now. The topic will likely need a series of posts to canvass the different facets of the complex issue of personal freedoms online and their intersection with our professional lives.

This post is a minimalist start on the topic of online professional personae. It addresses what I see as the professional needs of that most conservative of professions, the law. It is designed to offer a starting point for reflection about one’s digital presence in the context of professionalism in the law. It is not a highly critical piece – critique will come in later posts.

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Practical legal education & lawyering skills: are we losing depth?

For a while now I’ve wondered whether a consequence of increasingly vocational legal education and the automation of legal work is the deskilling of lawyers. I don’t have hard evidence, but I think there are questions worth thinking about.

I preface my comments here by confirming that I have no objection – as I know some do -to teaching professional skills in the law degree. Nor do I object to what might be described as an ‘academic’ degree, that emphasises more intellectual skills. My position on the law curriculum is informed by Shiro’s conceptualisation of curriculum. He suggests four types: 

  • Scholar academic (discipline based)
  • Social efficiency (practical skills)
  • Learner centered (such as might be used for an external cohort)
  • Social reconstruction (service to community)

Applying this framework, as I’ve observed before, law schools might develop their curriculum following any of these directions. I can see examples of each across Australian law schools, and I think each has its place.
Further, while there might be any number of alternatives to the Priestley 11, and perhaps different conceptions of the TLOs, there is no intrinsic objection to these as tools of curriculum organisation around subject areas.

I wonder though if we try to do too much with the law degree. If we all aim to do a little bit of everything, will we really produce graduates who are particularly skilled at anything. It’s not that I’m pretending to have emerged from my own undergraduate degree highly skilled in much at all. But in those days universities weren’t promising ‘work ready’ graduates to either the profession, or to graduates themselves.

The past

In terms of my own legal education, I always felt that those who did five year articles (no longer a pathway to practice) were the most skilled of all of us graduate lawyers. These practitioners had a depth of knowledge borne of experience that the two-year clerks like me were unlikely (possibly ever) to match. Upon admission, the contemporary graduate with three months of PLT is unlikely to come near the skill level of the five or even two year clerk. That is not to disrespect my esteemed PLT colleagues or the fine graduates of PLT programs. It is simply that the entire learning/practice context is different. 

But there were flaws with the ways of old – you could get ‘good articles’ or ‘bad articles’. It is no wonder that a standards based PLT was implemented, and that universities are now called on to start professional skills training. If the profession is not training but expects work ready graduates, the training has to be pushed back into the degree.
There is no doubt then that the newly minted lawyer must be sufficiently skilled to start in what is now a high paying junior lawyer position, relative to the low pay of articled clerks of old. Again, I don’t begrudge this. But I do have some questions about how we are developing the real skills of junior lawyers, fully qualified.

The salary of the junior lawyer demands they do fee paying work to meet budget. They are likely to be too expensive to do repetitive back room work like due diligence, discovery, turn-the-handle conveyancing. Indeed this work – in the world of Susskind’s tomorrow’s lawyers (actually right now!) – will either be run by paralegals, outsourced, or computerised. 

I don’t mind the fragmentation of the profession. I don’t mind cost-effective bundling options. I love, and am indebted to, the highly capable legal secretaries and paralegals who taught me so much. I’m a technology fan. And lastly, who wants to do all that drudge work? Not the lawyer, right? 

The future 

I’m not so sure. I was no fan of that grinding work. But it offered me a unique opportunity to learn about the components of transactional law, about land titles, corporate process, and securities. I learned to read word by word, line by line. I learned to take each menial task as an opportunity to practice for the big one. When I had grown up enough to do more glamorous work, I was equipped to give effective instructions to other staff, and to know what inquiries to make. In short, I think it made me a better lawyer. 

I’m sure there are plenty of good lawyers out there who have not taken this path – but increasingly, this path will not be available for lawyers. The problem I foresee is that with all the unbundling and outsourcing and technology, lawyers will lose control of the process. I don’t mean the profession is losing its monopoly (though it is) but that lawyers will not have the insight or experience to know how to give instructions, or what the processes underlying their work even are. Further, will those teaching PLT in the future  have the depth of professional practice knowledge to pass on to graduates?

For example:

  • E-discovery is great. Facilitated by algorithms, it is cost effective and a boon for litigation. I imagine that the software has been designed by or with lawyers who understand the process intimately. In all likelihood, they became experts because they spent hours and days and weeks doing the drudge work of discovery. But their knowledge, grounded in experience, will one day be gone. We will have the algorithm we inherited from them, but no capacity to know what lies behind it or what the electronic process misses or adds to the human skill of litigation.
  • The sanctity of the duplicate certificate of title has long disappeared. Conveyancing now can be achieved from the comfort of one’s desk, with the press of a button (subject to the banks getting their act together – some things seem never to change). The Torrens fraud cases are dated but we still teach them. What is the skill set required to undertake a disembodied land transaction? What will lawyers know of titles beyond the current notation? Indeed (and I have some hard anecdote to back Tis up) what will land registry staff know about titles…

There is still a place for the boutique lawyer, according to Susskind. But what will they cut their teeth on? How will they develop the depth of knowledge, of experience, to become that lawyer? We can’t provide that in universities, nor can PLT courses provide it. ‘Authentic’ learning is training and it may set the graduate up for practice but it is still managed and bounded. It’s the beginning not the end.

The future of legal practice will look different. And educating and training future lawyers will look different. What I’m grappling with, at the risk of calls of Luddite, is whether what we lose in translation is an essential layer of experience and therefore knowledge.

Time for women lawyers to claim their power

Screen Shot 2016-04-03 at 7.05.25 amI graduated in one of the first cohorts in law at the University of Queensland to comprise 50% women. Despite experiencing overt sexism in some of my job interviews and tacit sexism during my working life, it still did not occur to me for a long time that I would be treated any differently from my male counterparts. I thought sexism to be exceptional. As a young woman, I believed all in the profession would be treated on merit.

The intervening 26 years in the workforce has shown that the idea of merit excludes many people of merit. Hard work and talent are not enough – if it were, the upper ranks of the legal profession in particular, would look a lot more diverse.

We know this – study after study has confirmed it. We even know why there is a lack of diversity – that the culture of the legal profession operates in a deeply exclusionary way. What we don’t seem to know is how to dismantle this culture. This post forms the basis of some ideas I will be sharing at the 2016 conference of the Australian Women Lawyers (‘AWL’). In it, I offer some ideas on cultural change in the legal profession, focusing on changing entrenched gender bias.

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Enough pledges. Act!

The Australian reported today that the New South Wales Law Society would urge law firms to sign up to a charter for advancing women in the legal profession, including a pledge to achieve equal pay for male and female graduates, within 12 months.

On the basis that differentiating pay based on gender (or race, or age etc) is unlawful, why is such a pledge needed? Why doesn’t the law society say: if a law firm is not currently paying staff equally for equal work, it will be prosecuted. I guess pledges and charters seem so much less in your face. But that is why I suspect that they will not work.

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