On the question of sexual harassment, IBA again noted Australia’s figures as “higher”, with 47 per cent of Australian female lawyers and 13 per cent of our male lawyers reported such misconduct, compared to 37 per cent of women and 7 per cent of men globally.

In explaining why such rates might be higher in Australia than in other countries, the report indicated that policies to target bullying and sexual harassment are “more widely used in Australian legal workplaces” compared to the global average, with 66 per cent of Australian lawyers saying their workplaces had relevant such policies compared to the international mean of 53 per cent.

However, it also noted that only 58 per cent of Australian lawyers indicate that they have confidence in those responsible for handling complaints under such policies. This is in stark contrast to the international mean of 65 per cent.

VIEW ALL

One lawyer-turned-workplace-investigator believes that workplace bullying in the legal profession, and subsequent issues with reporting, has worsened since the onset of the age of coronavirus. Such a state of affairs led two Sydney-based barristers to describe bullying, and other forms of misconduct in the profession, as the “other pandemic”.

For two leading lawyers, the situation is untenable. There needs to be a better understanding — as one of them put it — of “why lawyers don’t speak out when bad shit happens”.

A ‘code of silence’

Bullying isn’t always a comfortable topic to discuss, Balance Family Law founder and principal Perpetua Kish told Lawyers Weekly.

Ms Kish — who won Sole Practitioner of the Year at the 2021 Australian Law Awards, the Family Law category at the 2021 Partner of the Year Awards, and Boutique Firm of the Year at the 2020 Australian Law Awards — said that lawyers fear consequences of speaking out, such as being disbelieved.

Lawyers are also, she added, experts at complying. “The assertiveness we employ for our clients is replaced with a more submissive tendency within our own community. We want to fit in so we refrain from speaking out, because the price of breaking cover feels overwhelming,” she said.

“We do not want to be seen to cause offence or trouble, draw attention to ourselves or ‘make things worse’, and if the bullying is happening to someone else, we say: ‘it’s none of our business’.

“We put forward the appearance of the obliging professional, who keeps the peace, and doesn’t make any controversial waves. It’s also easier to stay silent because to an extent, it then stops with us.

“At least publicly, we don’t carry any responsibility or face any of the consequences that come from taking action.”

Tiernan Family Law director Julann Tiernan — who is nominated for Sole Practitioner of the Year and whose firm is up for NewLaw Firm of the Year at this year’s Australian Law Awards — agrees.

“My personal and anecdotal experience, after 12 years in the law, indicates that there is a code of silence that exists, particularly regarding bullying behaviour. This is often insidious and subtle as part of the hierarchical and traditional nature of law and occurs for a variety of reasons.

“Largely, this code of silence exists out of fear of a loss to reputation and a fear of litigation,” she said.

‘A spectrum of bullying’

Bullying, Ms Tiernan detailed, can take many forms in the legal profession.

“Often, experienced practitioners themselves who were subjected to dominating and bullying behaviour pass this on, through learned behaviour, as ‘just the way things are’. Often, it can be as result of external pressures which create a feeling of a loss of control causing practitioners to respond by micro-managing those under them,” she said.

“Frequently bad behaviour occurs when a practitioner leaves a firm through excluding behaviour or threats of litigation. Bullying can occur regardless of a practitioner’s place within a firm. For example, it is not always the case that a supervisor bullies an underling.”

Ms Kish also feels that there is “a spectrum of bullying” to contend with.

The most insidious and disconcerting, she said, is gaslighting.

“When this happened to me, I didn’t really understand what it was, but I felt frightened, mistrustful, and started to doubt my own abilities after every interaction with this person. While my experience eventually prompted me to leave that job and start my own firm, I am acutely aware that for every lawyer that successfully overcomes this type of treatment, there are many others who are unable to recover and move forward,” she reflected.

Another, she continued, is conditional kindness.

“It’s where we consider only some as worthy of our kindness and exclude others from this grace. The ‘bully’ in this case can be very pleasant and welcoming to some, but not all. They may seek to foster a reputation that is collaborative, but also drive divisiveness and disunity,” she said.

“This type of behaviour in my experience, is common, and often so subtle it can be difficult to name and call out, which makes it a gateway to increasingly unacceptable behaviours being tolerated and normalised.”

Drivers

When asked what she thinks gives rise to such behaviour, Ms Kish said that there isn’t really a place for expression of feelings in law.

“Our past hurts or traumas, and also the repression of what we really think and feel, all in the name of politeness and agreement, can be drivers of such behaviour. It is culturally acceptable to say and do nothing, so most people don’t speak out, which breeds bitterness, and fosters hurt,” she submitted.

“Our minds need somewhere to release their troubles. And where one has been denied this, bullying and other bad behaviours can manifest anywhere that feels remotely relevant. A bullying cycle may naturally emerge. Hurt people hurt people, and bullying is very much a reflection of a culture that does not deal very well with its own transgressions and challenges.”

Ms Tiernan backed this, saying that the very nature of the business of law is a driver of such behaviour.

“As lawyers, we understand well that litigation is always on the table as a response to conflict. We make decisions, often commercially with respect to both income and the cost of litigation, not to rock the boat. To suck it up and not complain. Practitioners might be fearful of this imbalance of power when it comes to the costs of litigation,” she said.

“Given the law is traditionally a male dominated profession, this response might be symptomatic of that gender construct. There may also be a demographic impact. Word spreads quickly in certain regions of the legal industry and practitioners may fear tarnishing their own reputation and future employability by speaking out.”

Understanding bad behaviour

As much as there must be adequate support in place for those experiencing bullying, Ms Kish suggested, the profession must pay just as much attention to why bullying continues to be a problem in our profession.

“The culture in our legal community is one which could very much be improved. I have had many discussions with colleagues about this and one perception that emerges is that the law is a particularly challenging profession to work in, due to the type of people it attracts. Competitive, opinionated, elitist even. Put too many of those types of personalities together and there will be conflict,” she said.

But while there is some truth there, Ms Kish does think that it is mostly the other way around.

“Lawyers do not behave badly because of who they are, but because of what the culture has done to them or has permitted, over time. The skills taught at university equip us with the basics to attack and resolve legal problems,” she said.

“However, law is a social profession just as much as it is a technical one and certain kinds of social skills: the ability to listen — not to reply, but to understand, reflective practice, emotional self-regulation, empathy, self-awareness, and co-operation, are not taught or even contemplated in the traditional practice or teaching of law, when they absolutely should be.”

Ms Tiernan added: “It is important to understand what constitutes bullying and the impact of this type of behaviour on victims and a firm’s culture. The effect of bad and bullying behaviour on productivity and staff turnover can be significant and an understanding of this commercial impact on a firm can assist in management taking a more active role in stamping it out.”

Lawyers must speak out

If legal professionals do not speak out, Ms Tiernan argued, “the system won’t change”.

“This behaviour needs to challenged by bringing into the open and shining a light on it. Similar to the experience of women in the ‘me too’ movement regarding sexual abuse, the more that practitioners talk openly of their experience and reject such treatment within the law, the more others will feel comfortable challenging bullying,” she said.

“Everyone knows that most bullies, when challenged, back down. When left unchecked, bullying can infiltrate the culture of a firm.”

Ms Kish supported this, pointing out that the standard that lawyers walk by is the one they accept.

“For every bully, there are 10 enablers. Bullying will continue to go unchecked if we don’t change our collective response to it. Change only happens when people work together towards a common goal. Perhaps we need to shift from thinking about all the bad things that could happen if we speak out, to the more positive outcomes,” she mused.

“Our vulnerability may invite, and encourage, that of others. Our actions may motivate colleagues to let go of their own fears, moving us closer to creating a more open and supportive culture. Lawyers are advocates and should reflect on their use of this skill. It shouldn’t be limited to advocating for clients but extended to ourselves and each other.

“As lawyers, we have an ethical obligation to ensure the court is supported and justice is done.

“Maybe, we need to think more about that ethical duty.

“And, at a minimum, in our own private reflections, consider whether it extends to a responsibility to call out bad behaviours as we see them, whether they happen to us or to others?”

Further action required

In Ms Tiernan’s view, strong and consistent HR policies are needed to guide lawyers, especially those new to the law.

“In my own experience, strong, empathetic and available mentors are invaluable. Victims of bullying behaviours feel confronted and shocked in the moment and need immediate support. Firms that can ensure a peer support program in the first instance will empower their staff,” Ms Tiernan said.

This said, the duty to stamp out bullying, Ms Kish deduced, is everyone’s responsibility.

“Every lawyer can choose to be kind, nobody can take that away from them. And there is an important distinction to make here: ‘acting without unkindness’ and ‘acting with kindness’, are two very different things. To avoid being unkind, is relatively easy,” she stressed.

“It requires little effort as we do not need to actively do anything to assist others. In contrast, acting with kindness challenges us to try and make the world a little better than we found it, and how this manifests, is only limited by our creativity. It doesn’t need to command an audience and can be as simple as inviting the quiet member of a group out to coffee, saying thank you regularly to those who go that extra mile or offering a warm smile and greeting when we meet someone new.”