Whilst lawyers provide legal nous and advocate for the benefit of others, we have dramatically failed our own. In doing so, and in the absence of change, we have curtailed the opportunity to provide the type of counsel that is presently needed without screaming hypocrisy from the rooftops.

Consider law firms: we (not always, but often enough) stand by and watch rainmaker practitioners make nice with human resources thinking that even if we did complain about that time (s)he blatantly stared at the associate’s ass in the lunchroom, had sex with the very young assistant, or offered a junior solicitor any number of narcotics (not the herbal kind) at an end-of-year bash (I don’t detract from anyone’s consent in any of these acts, but the inherent power imbalance must call into question the sincerity of such consent in the first instance), what would ever happen to that person, really?

Would law firms suddenly change their business models and threaten the employment of practitioners who generate several hundreds of thousands, if not millions in revenue a year? Would fears of career stagnation and stigmatisation from complainants suddenly be abandoned? Or, would complainants who allege harassment has occurred be identifiably moved to different teams, isolated from their teammates, advised that the firm is willing to provide “all reasonable supports”, and that the (alleged) perpetrator is being “coached” in appropriate standards of behaviour? Everyone lives happily ever after, right?

Or take this scenario. What if during a verbal lashing on affidavit structure a practice head says, eerily smilingly, to a junior solicitor of Jewish descent words to the effect of “You just need to focus. Like arbeit macht frei.” Work sets you free. The German quote hanging at the top of Auschwitz, Buchenwald, and so many other concentration camps.

When that was said to me as a young female Jewish lawyer (a trifecta of legislatively protected attributes) I confided in a senior practitioner who quite rightly, and sensitively, asked me if I wanted to complain. At that time my response was, “He’s a Practice Head. Where will that get me in my career?”

Reasonably, that senior practitioner said, “Probably not very far”. So I said nothing. My confidante practitioner said nothing (as I wanted). And by saying nothing here we are; the same stale and tiresome conversation, filled with criticism for the conduct “other” institutions have been harbouring while those of us within the legal fraternity know that more often than not, it is career suicide to speak out. As a consequence, we embed as tolerable the practices we condemn to others as intolerable – as “unlawful”.

The truth is this. As practitioners of the law it is incumbent on us to set an example.

We cannot rely on complainants to come forward. They are the ones that need a break, to rest, and regain confidence. We the bystanders, the practitioners, the “upholders of the law” bear the onus to say something on their behalf (if they consent). We need to call out harassing, racist, and sexist conduct for exactly what it is: abhorrent and intolerable.

If a practitioner has a reasonably founded and honest belief that another practitioner is engaging in misconduct, we should have a duty to report it, preferably to the Legal Services Board, so that it can be investigated confidentially, with due process afforded to both parties.

If judges, in their esteem, form a reasonable view that one of their colleagues is engaging in misconduct, the Judicial Commission should be made aware and as Dr Szoke recently, and eloquently, recommends, both senior counsel and Judges should be comprehensively assessed as to their character and conduct before they receive their promotions.

Equally, vexatious reports that intend to tarnish someone’s reputation to satisfy malice should also face sanctions, and severe ones at that.

My point is thus: the relevance and importance of laws that are in place to protect people’s liberty should not be diminished by the very people tasked with their representation. If the legal industry does not have these obligations, or in the alternative, if we do not voluntarily decry conduct that devalues a person’s ability to work freely in our own profession, without prejudice or harassment, we who work tirelessly to understand the law and how it may be best applied are very respectfully, part of the problem.

On this particular issue, of late, it seems those without our skill set have stepped up to the plate for us. Can it beg the question, just how may we provide counsel, really?

Dani Salinger is a senior associate in employment law based in Melbourne, and was recently named as finalist in the Lawyers Weekly Women in Law Awards, as well as a Key Lawyer in the 2020 Doyles Guide for the Asia-Pacific Region.