I suspect we'll be hearing quite a bit about a new suit filed by David Cowling of Mathews, Dinsdale & Clark against two former employees of his firm. Jim Middlemiss seems to have broken the story first on the National Post, and it was quickly picked up by the huge American blog Above the Law, so I won't repeat all of the facts here again or provide too much commentary on the case.
Although Middlemiss points out the similarities to the LaCalamita case and the George Hunter suspension, there's one important difference. The employee here, Sarah Diebel, claimed to have recognized that reporting sexual harassment in a law firm was a "career limiting move," and instead attempted to deal with the issue more discreetly by bringing it up with a partner with the expectation of it being resolved quietly.
The partners attempted to corroborate Diebel's story by approaching another associate, Adrian Jakibchuk, who had organized the event where the alleged incident took place.
The distinguishing feature here is that Cowling is now suing Diebel and Jakibchuk for defamation and intentional interference with economic relations because he feels it is the only way to clear his name, since many of the allegations were secretly known to other lawyers both in his firm and in the profession generally.
I have three set of questions stemming from this case:
- the prudence of Cowling's move
- law firm management of hostile workplaces
- whistle-blower protection
I wonder how successful would a suit like this be in protecting Cowling's reputation? Even if quite a few lawyers had heard of the allegations, there is plenty of unsubstantiated gossip about people that is always floating around. This suit will ensure that everyone will hear about the claims, including confidential letter by Diebel that was intended to stay private, and possibly even possibly expose a confidential report stemming from an independent investigation that the firm internally undertook to try to resolve the issue.
Ultimately Cowling may want these confidential documents made public, depending on what their contents might be. But then that also puts him at odds with his partners, who appear to have wanted to resolve it internally.
How are managing partners supposed to resolve accusations of sexual harassment? Would sensitivity training and disciplinary measures even be successful if those accused can turn around and file suits impacting the reputation of those making the claims, or expose internal investigations to discovery? Then again, what avenues of resolution does the target of accusations have against highly controlled internal mechanisms?
The introduction of Bill 168, effective this past June 15, 2010, means these questions will take an increasingly higher priority because of the employer's responsibility to prevent hostile workplaces before they even occur. These issues also affect law firm recruitment and the image of a law firm for young lawyers.
Is there greater need for whistle-blower protection in law firms? Both Diebel and Jakibchuk are no longer with the firm. Although Diebel is currently with Ontario Power Authority (according to LSUC), Jakibchuk is reportedly seeking employment. Would it have been more appropriate for them to keep quiet, thereby potentially creating a hostile environment for other employees?
How does a public suit like this bode for their careers, when both claim they had a moral responsibility to take some form of action and did so in the most quiet manner possible? And do we really want to have a profession where younger associates feel intimidated about raising sensitive issues?
One of my children worked for the firm and complained many, many times to me about sexual harassment. I didn't know how to react at the time. I now wish I had reacted differently. Those who know about it and allow it to continue also have to accept responsibility.