The topic of bullying in law firms is often met with a wall of silence; managing partners avoid speaking publicly about it and victims are tight-lipped due to confidentiality clauses or the fear of career repercussions. Leanne Mezrani reports.

Jane Smith* met ‘the smiling assassin’ at the Sydney headquarters of a prestigious mid-tier firm around 13 years ago. The partner got the nickname for making friendly enquiries about a lawyer’s weekend and the health of family members, while in the same breath criticising their work.

Smith says she still isn’t sure whether, on the occasions he was “nice”, the assassin was being genuine. “In some cases, he may have actually meant it,” she says, but adds that no amount of affability could counteract the damaging effect of his bullying behaviour.

“He was constantly nit-picking ... and second-guessing everything you did, micromanaging the minutiae of the matters you were doing [and] constantly changing the goalposts.”

Smith says she was treated like a first-year solicitor when she had seven years’ experience under her belt. It was a steady stream of insidious comments, she claims, not one violent outburst.

The partner’s put-downs were so penetrating that Smith would often hide in another lawyer’s office. But any break was short lived: “He hunted me down,” she says.

Then Smith’s mental health began to deteriorate. The partner appeared unaffected when she told him that she was seeing a psychiatrist for work-related stress and depression, Smith reveals, and she continued working the same number of hours and “the work and stress kept piling up”.

“I was barely sleeping, I couldn’t think straight.”

Then, in 2004, Smith’s psychiatrist told her that she had to check into hospital for severe depression or face being forcibly admitted.

Smith gave the partner notice that she had to leave work on a certain day, at a certain time. He proceeded to give her work long after the time she needed to leave the office. When she did arrive at the hospital, while waiting for a health professional to arrive, her phone rang.

It was the assassin; he wanted to discuss a brief.

From bad to worse

Deciding she wanted a fresh start, Smith left the firm and moved to Perth to take up a position at another top-tier firm. There she worked under a partner she describes as “an unreasonable ogre”.

“If you left at 7pm, he’d say ‘oh, you’re just going out for dinner, what time will you be back?’ ... he’d work 7am to 10pm and work Saturdays and expect you there.”
Smith claims the partner, a six-foot-five tall, heavy-set man, also physically intimidated her. On one occasion he demanded that she work 20 hours straight for four nights while leaning over her. When she tried to explain that she could only work until 9pm that evening, she says he was visibly shocked.

“He made my life hell after that,” says Smith, claiming he set unrealistic deadlines and forced her to work Sundays.

At that time, Smith was a patient of Dr Daniel Morkell, a psychiatrist who specialises in treating lawyers and accountants at big firms. Morkell told her that if she left the profession she would no longer need a psychiatrist’s care or have to take medication for depression.

In the end, she wasn’t given a choice. Smith was sacked after requesting time off to treat her mental illness, the firm claiming the quality of her legal work wasn’t up to scratch.

“They dredged minor things that had happened months beforehand ... nothing had been said at the time I’d done the work; if it was so bad it justified dismissal why didn’t they something to me then?,” she asks.

Smith sought legal advice and sued the firm for unfair dismissal. She claims the firm bullied her into a “pathetic settlement”, threatening to fight the case to the Industrial Relations Commission and ruin her legal reputation.

“I didn’t have the wherewithal to fight; the threat was enough to wipe me out,” she says.
Smith told Lawyers Weekly of two similar incidents at two other well-known top-tier firms.

“It may seem that I’m the common thread to the bullying events in my life, but I am no intellectual slouch, nor am I am inflexible princess who wants everything her way, thereby precipitating bullying incidents.”

In fact, Smith got a First Class Honours degree from Sydney University in 1994 and has an enviable CV that includes high-profile litigation.

Large law, it seems, is the common thread of Smith’s experiences. Four years ago, she started her own practice and says she is considerably happier and no longer requires psychiatric treatment.

“I felt I had no choice but to leave large law,” she says. “It wasn’t because I couldn’t cope with the work; but the attitude is that you have to do the long hours, you have to deal with the ogres and, if you don’t like it, then get out.

Perceptions vs reality

Understanding the causes of bullying in law firms is not an easy task given most complaints are settled out of court with a neat confidentiality clause, as in Smith’s case.

Most of the evidence obtained by Lawyers Weekly is, therefore, anecdotal; but there’s a lot of it.

A Lawyers Weekly poll earlier this year found that 33 per cent of lawyers believe bullying is a problem at their firm, with partners particularly prone to bullying junior staff.

A further 29 per cent said bullying was a problem at all levels throughout the firm.

Joydeep Hor, a workplace relations lawyer and managing principal of People + Culture Strategies, told Lawyers Weekly in March that he was not surprised by the result.

“I think the whole issue as to bullying, and perceptions as to bullying, is of pandemic proportions in Australia at the moment.”

He clarifies, however, that it is the volume of complaints that is increasing, not the actual incidences of legitimate bullying, which Hor claims is on the decline. Alleged victims of bullying often get it wrong, he says.

“The biggest problem is that people are putting their hands up all too easily and all too readily to make complaints of bullying and, upon investigation, are finding that whatever might be the catalyst for those complaints does not actually amount to workplace bullying.”

A lawyer who may fall into this category is a former partner at Maurice Blackburn, Fiona Brown, who had claimed she was systematically bullied at the firm (see page 4).

Brown lost an appeal on 22 May against a County Court judgment that found she had not been undermined, harassed or humiliated by former friend and colleague Lee Formica while they were job-sharing as head of the firm’s family law practice.

The lawsuit centred on a series of emails between the women. Brown gave evidence that, on one occasion, she “developed chest pains, a heart-racing sensation and cried a lot”. But County Court Judge John Carmody did not accept that the emails sent to Brown involved bullying, adding that it was a “classic storm in a teacup”.

Despite these allegations, Maurice Blackburn has been actively campaigning for bullying legislation to be introduced in Australia. The firm also welcomed a federal parliamentary committee report entitled Workplace Bullying: We just want it to stop tabled in November that recommended a national approach to workplace bullying, new rights for workers who are bullied and a clear definition of what constitutes bullying behaviour.

No comment

The debate about what should fall under the definition of bullying remains heated.

The latest definition outlined in the proposed amendment to the Fair Work Act is: “Bullying, harassment or victimisation means repeated unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.”

The legislation will also recognise that the term bullying does not include performance management conducted in a reasonable manner.

Hor points out that lawyers have the legal knowledge to accurately label behaviour as bullying. This suggests that lawyers would make fewer bullying complaints but, given that Lawyers Weekly’s poll found a total of 62 per cent of lawyers said bullying was a problem at their firm, actual incidents of bullying may be higher in the law compared to other professions.

The same poll also found that 10 per cent of lawyers said management generally acted quickly to stop bullying when it occurred. However, when Lawyers Weekly approached the managing partners of a range of top and mid-tier firms, including Allen & Overy, HWL Ebsworth, Baker & McKenzie and Henry Davis York, to discuss their firms’ policies on bullying, none of them made themselves available for interview.

A&O managing partner Grant Fuzi also declined to be interviewed late last year after the firm’s competition partner Dave Poddar left the firm, with his wife and fellow partner Angela Flannery also leaving, after allegations of inappropriate behaviour were made against him. Lawyers Weekly understands that prior to Poddar’s resignation in September, senior management had been told of alleged behaviour that had caused disquiet within the firm.

A reliable source revealed to Lawyers Weekly that junior lawyers who worked under Poddar, who was based in Sydney, were not happy at how he treated them and that a number of lawyers from his team had left prior to his departure.

“The firm’s response was entirely appropriate in the circumstances,” said the source in October.

A couple of months after Poddar’s resignation, the head of HWL Ebsworth’s financial services and regulatory practice group, Andrea Beatty, also quit suddenly. In the wake of her departure, former colleagues of Beatty told Lawyers Weekly her approach had caused some disquiet among her staff. In an interview, Beatty maintained that such descriptions were unfair.

HWL’s managing partner Juan Martinez declined to be interviewed at the time on the circumstances of Beatty’s departure.

Slaughtering sacred cows

Managing partners may be keeping their attitudes to workplace bullying close to their chests, but consultant John Chisholm claims firms are more aware of bullying and its “repugnant repercussions” today than they were a year or so ago.

He says most firms take positive steps to eradicate it and, in his experience, managing partners are making the point to employees that they won’t tolerate bullying behaviour.
Chisholm admits, however, that bullying does occur in firms, albeit occasionally.

“Like drugs and other behavioural abuse, you will not eradicate it completely and the legal profession, I suspect, simply mirrors the wider community,” he says.

“That also goes for mirroring the wider community in its abhorrence of bullying too,” he adds.

While he could not comment on the prevalence of bullying in law firms, Chisholm admits that the profession has tolerated more than its fair share of “sacred cows”.

Partnerships produce a high number of so-called sacred cows – often the big billers with A-list clients on their books.

Chisholm claims that bullying by some of these apparently untouchable partners may have been endured in the past, but firms rarely put up with it today.

“In some firms, the sacred cows were ... given more tolerance and leeway, often too much, when they strayed from accepted firm and social behaviours,” he says.

“I think that has changed to a substantial degree ... but we would be naive to believe that there are not a small minority of individuals who are allowed to ‘get away with it’.”

Chisholm adds that a highly-competitive environment, both within a firm and externally as lawyers vie for business, can also be an incubator of bullying behaviour.

“Petty jealousies, jockeying for positions and maybe just rampant egos can lead to bullying perpetuated by one employee against another,” he says. He adds that, in these circumstances, more firms are taking swift action.

Kate Ashmor, president of Australian Women Lawyers, also claims that the profession’s response to bullying complaints is improving, but adds that the push to bring bullies to account is coming from clients, including in-house lawyers.

“In a highly-competitive, cost-sensitive market, clients don’t hesitate to vote with their feet these days ... [and] many clients, who are increasingly women, don’t tolerate aggressive behaviour by their external legal advisors outside of advocacy; it’s simply unprofessional,” she says.

Female clients of law firms who take a stand on the issue of bullying will also play a role in shifting a gender imbalance. Ashmor explains that anecdotal evidence suggests young women lawyers are more vulnerable to being bullied than their male colleagues.

Bullying of female lawyers can range from aggressive intimidation to subtle adverse behaviour, such as depriving a person of quality work, exclusion from social events and spreading false gossip, says Ashmor, adding that women are more reluctant to confront the perpetrator or “dob them in”.

“They are afraid of harming their career by being labelled ‘not a team player’ ... more often than not, victims of bullying simply leave their workplaces to escape the problem.”

Smith says escaping the “cut throat, bloodthirsty, horrible environment” of the top-tier firms she worked at was her only option. She stresses that she loves being a lawyer and the work that goes with it, but has no intention of returning to large law.

There may not be hard evidence that links firm culture, the billable hour or the competitiveness of lawyers to bullying, but there is enough anecdotal evidence to start a conversation.

However, instead, firms become tight-lipped whenever the B word is mentioned.