By Allanah Colley, Ana Lenard and Bridget McLay
We are two years on from when harassment and bullying in the legal profession in Aotearoa made the national news. The discussion began with five summer clerks coming forward to disclose their experiences of sexual assault and harassment at Russell McVeagh, but quickly expanded to question the culture of the profession generally. It became clear that these issues were not new, and neither were they unique to Russell McVeagh. They are present in different forms and to varying degrees in many, if not all, legal workplaces. They affect lawyers, non-legal staff, academics, students and even those who have left the profession.
A wealth of important work has already been completed to take stock of the issues that prevent people from having positive experiences in the legal profession: from Zoë Lawton’s #metoo blog, to the New Zealand Law Society’s 2018 Workplace Environment Survey, the International Bar Association’s 2019 bullying and harassment report and the Employment Information Survey released in late 2019 by the Aotearoa Legal Workers’ Union.
And yet, how far have we come since 14 February 2018? A new report, Purea Nei: Changing the Culture of the Legal Profession, released just before Christmas seeks to continue the conversation about culture change in the legal profession by asking the next question: how? What needs to occur in order to make a meaningful difference to workplace culture? How can we translate the concerns about what has happened before into meaningful improvements to the everyday experiences of the people in our profession in the future? We, the report’s authors, believe the people best positioned to answer these questions are people within the legal community themselves. Titled Purea Nei, which means to clense and renew, this report brings together a collection of ideas from people within and associated with the profession, to provide a path towards making the profession happier and healthier.
To that end, we sought to engage with members of the legal profession and anyone associated with it – non-legal staff, legal executives, law students, legal academics, and former members of the profession – with a particular focus on solutions for change. The report is a culmination of workshops held in Auckland, Wellington, Christchurch and Dunedin; open-ended discussions online and via email; and an online survey which attracted almost 650 responses. In total, over 700 people engaged in the project, which was funded by the Law Foundation, the Michael and Suzanne Borrin Foundation and the New Zealand Women’s Law Journal – Te Aho Kawe Kaupapa Ture a ngā Wāhine.
In terms of demographics, the typical survey participant in the project is best described as a young, Auckland-based Pākehā female, employed in a law firm, with 0-1 years’ Post-Qualification Experience (PQE). About half of the survey respondents were under 30. Almost two-thirds of our survey participants had under five years’ PQE, were not yet employed in the profession (eg, law students) or did not define their career by reference to PQE. Evidently, the average age and experience level of participants is not representative of the profession as a whole, and we acknowledge the limitations of our engagement. However, we see this project as only the beginning of what we hope will be many more conversations with those who are affected by the culture of the profession, and who have ideas for how we can move forward.
The methodology behind the report seeks to identify and describe most of the solutions that we collected from our various channels of engagement in a generally qualitative way. In essence, Purea Nei tries to capture a conversation, with some reliance on quantitative data.
The report outlines ideas for change across a range of issues: workplace expectations and culture; diversity and inclusion; work format; training and education; leadership and management; remuneration; human resources and procedures for managing workplace issues; holding the profession to account; and the role of clients in shaping the experiences of people associated with the profession.
Across these various issues, several key themes emerged.
There is a lot we can do in the workplace to make a difference
We encouraged participants to think about all aspects of the workplace and how things could be different in order to improve safety, wellbeing and overall happiness at work. Participants repeatedly identified the following:
1. Examining and changing the structure of the workplace is important.
Alternatives or changes to the partnership model, which was widely regarded as concentrating too much power in just a few and failing to provide sufficient checks and balances, were favoured. This might involve changing legislation, but could also involve: reducing levels of hierarchy; exploring contractor models; or empowering staff by enabling them to actively participate in governance and management.
2. Culture needs to be crafted.
Leaders, working together with staff, should regularly take stock of workplace culture, examine what is working well and what needs changing, and put pen to paper on what the firm culture will be. Culture needs to be based on values that foster safety and wellbeing at work, and that are supported by all people in the workplace.
3. The mechanics of work need to be examined and upgraded to better support a healthy and productive workplace.
The most favoured solutions were: flexibility about the 9-5 model; appropriate pay to reflect the hours required eg, through higher starting salaries or overtime pay; and utilising technology for efficiency and not over-work. At the core of all of the solutions was the desire for autonomy, respect, recognition of value-add, and trust.
4. Where human resources services are utilised, they need to be supported and equipped in order to make good hiring, retention and progression decisions.
Training on how to deal appropriately with misconduct needs to be sufficient and needs to enable HR teams to protect and support those who have suffered as a result of workplace misconduct. Services such as counselling should also be provided and their use encouraged.
5. Achieving meaningful diversity and inclusion were seen as important goals.
The most favoured solutions include specifically recruiting diverse staff, recognising and implementing tikanga and te reo Māori in the workplace, and self-measurement and diversity targets. Diversity and inclusion mindsets and approaches must also be embedded in law schools.
But we need real leadership in order to achieve meaningful change
Respondents felt that good leaders are good lawyers – approachable, caring, good at communicating, supportive and providing appropriate feedback.
Good leaders ‘lead from the top’ by modelling the culture they hope to create, by investing in their own training and people management skills, and by holding themselves and others accountable.
Participants believed that promotion into leadership roles has to be based on management skills, as well as technical ability, and prospective managers need to display superior people skills (communication, approachability, supportiveness).
Finally, respondents were in favour of extensive and rigorous due diligence on future managers, and a clean record as far as bullying, harassment or other misconduct is concerned.
And we need proper education and external help
When asked about how training and education could be utilised to resolve culture issues, participants were overwhelmingly in favour of frequent and appropriate training at all levels of a person’s career – at university, at work and at professional development courses. Training needs to be self-referential and allow people to explore and unpack their biases, and it needs to equip people with the right skills for dealing with difficult situations and conversations (eg, calling out bad behaviour, supporting people in the workplace, and holding perpetrators to account).
When it comes to accountability, external and independent HR is a worthwhile option, particularly for smaller law firms and/or barristers’ chambers. There was also strong support for a union, which was established in the intervening months since this project began. Respondents also explored the important role that clients play, firstly, in terms of lawyers appropriately managing demands (eg, through urgency premiums, and through dealing with abusive or oppressive clients), and secondly in terms of the purchasing power clients can direct in support of firms with safe and positive workplace practices.
Finally, there was strong support for the Law Society having a more significant role by auditing workplaces along various safety, wellbeing and diversity factors, and by having strengthened complaints and disciplinary systems in place with a specialist unit for responding to bullying and harassment.
We hope that this report will be a useful resource for organisations and individuals when they are deciding how to tackle the difficult and entrenched issues that have been identified in our profession. We recognise that each workplace is unique, and not all of the ideas outlined will be suitable for every place of work. Furthermore, this report does not purport to offer all of the answers, or to be a final handbook for dealing with issues in the profession.
Ultimately, this report seeks to contribute to and encourage the ongoing discussion that the legal profession in Aotearoa must have in 2020 and beyond: what’s next? What do we need to do to be better?
To read the full report, please visit www.lawfoundation.org.nz The authors plan to host a panel discussion in February to discuss the report findings and next steps. More information about this even is available from alenard@shortlandchambers.co.nz.
Allanah Colley is an Assistant Crown Counsel at the Crown Law Office, Ana Lenard and Bridget McLay are junior barristers at Auckland’s Shortland Chambers.