New Zealand Law Society - Three things that need to happen in the legal profession

Three things that need to happen in the legal profession

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LawTalk invited contributions from two of the women who have been prominent in advocating for change in the legal profession in light of the revelations of sexual harassment and bullying. They were asked to suggest three things that need to happen in the legal profession. Their views are presented below as received.

Steph Dyhrberg

The opportunity to contribute to this edition of LawTalk is appreciated, to set some things straight, and to talk about a positive future.

Recently, Wellington Women Lawyers’ Association publicly took issue with President Kathryn Beck’s letter to the profession and concurrent media statements claiming the Law Society was unaware of the scale of sexual harassment and bullying in the profession, and learned of the sexual assaults of young women through the media.

On all the available information, many of us felt those statements were misleading. That was what we were angry about. We pointed to the studies, articles and submissions available to the profession over the past few years which made the problems clear, and the lack of responsiveness to these issues until we were in crisis. We reminded the Law Society that it had been directly informed of the events at Russell McVeagh nearly 2 years ago, yet chose to do nothing to address them at that time. Ms Beck clarified the position, and asked “critics” to turn our anger and frustration into a strong voice for change. With respect, I have been doing that my whole career, as have many of my women colleagues.

It is very important that we all work together to address the underlying factors which have made law a hostile place for many people. Equally, it is crucial that there are independent voices, and that those in positions of authority are accountable to the people they are charged with representing and regulating. Independence and accountability were the genesis of the formation of WWLA over 30 years ago.

Three things that need to happen in the legal profession? First, an independent review of the structure and function of the Law Society: culture change starts from the top. Many lawyers see the Law Society as irrelevant to them, for good reason. The model set up over 10 years ago is holding back progress. The division between regulatory and representative functions is wheeled out to defend the status quo, and to justify not spending money on important initiatives which go to the heart of the health, wellbeing and integrity of our profession.

Major work in both the regulatory and representative spaces is funded not by the Society, but by countless hours of volunteer time and the generosity of sponsors. The Board and bureaucracy are not transparent and accountable. A culture of undue secrecy prevails – try reading the annual report for any details of what our money is really spent on.

Second, we need an honest and all-inclusive dialogue about the values we are supposed to exemplify: honesty, respect and care, and the changes required to make them real for all. Not just for clients, but for each other. Consultation on a code of conduct for the profession would be a good place to start.

Third, we need to ensure all legal education, from university to professionals, from Stepping Up to annual CPD includes an appreciation of gender and diversity issues, unconscious bias and ethical conduct.

Prevention of sexual harassment and bullying is only part of it: every one of us needs to examine how our conduct deviates from our values. Being brutally honest with ourselves is painful. Changing adult behaviour requires insight, courage and practice. We all need to work together on solutions, not just women. People need to accept there really is a problem. If you doubt the data, be assured: in any gathering of women lawyers, those without experience of sexual harassment are rare. Bullying is rife but tolerated. This is not a PC exercise: change is vital to the sustainability of our profession.

Steph Dyhrberg is an employment lawyer and member of Wellington Women Lawyers’ Association and Vice-President of the Wellington branch of the New Zealand Law Society.

Olivia Wensley

The profession is in crisis. There are many changes required in order to protect the vulnerable in the profession - and to restore public trust and confidence. The right to practise law is a privilege and should only be allowed by those of the highest ethical standards. This privilege has been abused, and the Law Society has an onus to prevent such abuses in the future.

Better Leadership

Strong leadership is essential - there is a high level of public distrust currently. This has been worsened by the Law Society - which took months to accept that sexual harassment is endemic. The official approach has been to deflect and minimise. A failure to be transparent about the crisis, has made matters worse.

Kathryn Beck’s approach has been disappointing to say the least. Her statements have attempted to minimise and deflect such as saying the legal profession is “no worse than others” - when according to statistics this is simply incorrect, and ignores the fact that lawyers have a higher ethical duty.

Furthermore, I think it has been disingenuous by Ms Beck to claim that the results from the recent survey are “surprising” when she was aware of the results of a 2015 survey which indicated that harassment was up to 59% (including legal support staff). Nothing was done at the time.

The current leadership is simply not the right team to guide the profession in the right direction. Strong, clear leadership is required. There needs to be a strong, no tolerance approach in the profession in order to enact the cultural change so desperately required.

Condemnation of NDAs

There is a widespread practice of using NDAs to cover up misconduct relating to sexual harassment. A few months ago the UK Solicitor’s Regulation Authority sent out a strong, clear message to the profession: “do not hide behind NDAs”.

The Law Society has refused to condemn the use of NDAs, and has provided some weak “guidance” on its website, and won’t take a firm stance. This isn’t good enough. There are many victims who would like to come forward, but think they can’t because they have signed an NDA. More support needs to be given to these individuals.

“Fit and Proper” means Fit and Proper

The Law Society has been strongly reluctant to hold offenders to account. For example, John Eichelbaum has been censured three times - the behaviour he has been censured for includes what in my view amounts to sexual harassment and totally inappropriate communication to another practitioner. After reading this correspondence, it would be hard to claim he is a “fit and proper person”.

However, this particularly disturbing correspondence wasn’t even mentioned in the LCRO decision. It was glossed over and the language in the final decision was sanitised.

It is time to stop protecting offenders - it makes the Law Society complicit.

Offenders need to be named, and shamed - in order to prevent future abuses. The current maximum fine of $10,000 is pitiful and is simply no deterrent. Without proper consequences, this behaviour will continue.

Furthermore, the Russell McVeagh alleged perpetrators have been practising for two years. Their practising certificates have recently been renewed. This makes a mockery of the profession.

It is unacceptable that the Law Society has previously refused to undertake an own-motion investigation as a result of the allegations that have been made. In doing so, it has meant these men can continue to practise without facing any consequences.

Consequences for Failure to Report

30% of women lawyers have experienced sexual harassment. Yet, not a single instance of professional misconduct involving harassment has been reported to the Law Society. This is extremely worrying, and shows significant non-reporting to the Law Society.

There needs to be consequences for such non-reporting. In Australia, the regulator takes disciplinary action against practitioners who fail to report another’s misconduct. An offending practitioner’s departure does not discharge the firm’s obligation to report misconduct.

If the Law Society is going to be trusted to self-regulate, then it needs to enforce its own statutes. This means serious consequences for partners - such as in the instance of Russell McVeagh, when there is a failure to report misconduct by its employees - as required under a statutory obligation.


The Law Society hides behind “confidentiality” - and largely operates in secret. This does nothing to gain trust. There is often no reason for “confidentiality”.

For example, the Law Society has recently refused to confirm whether it is investigating Russell McVeagh and its alleged perpetrators of sexual assault. Simply confirming that an investigation is being undertaken would do a lot to restore the public’s trust and confidence and would affect natural justice.

Olivia Wensley practised in-house and in law firms from 2008 to 2016. She is head of Customer Success at Automio.

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