Column

Are Canadian Law Societies Ready for the Legal Profession’s Me Too Moment? (Spoiler: Probs Not)

Sexual harassment has happened and is still happening in legal workplaces. This reality, while at one time largely unacknowledged or treated dismissively, is now openly discussed and approached seriously as a problem in need of a solution. The rise of the Me Too movement has given the issue additional prominence over the last year or so. A selection of recent articles and blogs on the subject can be found here, here, and here.

One question, however, that has not been given much attention is: how should Canadian law societies be responding? To be sure, it isn’t the case that law societies are ignoring the issue of lawyer sexual harassment in the workplace. There are clear rules in the professional conduct codes prohibiting sexual harassment. Some law societies also offer additional supports, like Ontario’s Discrimination and Harassment Counsel (“DHC”). And there has also recently been an increased effort by regulators to understand the nature and the scope of the issue, as evidenced, for example, in the Quebec bar’s launch of a survey on sexual harassment in the province’s legal profession.

But more attention needs to be given by law societies and given soon. Why? We are most likely at a turning point: law societies should expect to be soon seeing a significantly increased number of sexual harassment complaints being brought to them for resolution. I worry that there are serious shortcomings in the capacity of Canadian law societies to effectively deal with these complaints.

Why Law Societies are Likely to See a Rise in Sexual Harassment Complaints

To deal first with numbers, the most recent report from Ontario’s DHC office stated:

The number of contacts to the DHC office increased noticeably beginning in the fall of 2017 as the #MeToo movement emerged. That higher level of contact has been sustained, with a number of callers citing the #MeToo movement as giving them confidence to come forward to report.

Similar spikes in reporting have been seen in other jurisdictions, including England and Wales (“Harassment reports to SRA double in seven months”).

A recent large-scale survey (7000 lawyers from 135 countries) conducted by the International Bar Association found that 25% of lawyers had been sexually harassed at some point during their career. This is an astounding percentage. Even if the amount of harassment is substantially lower in Canada compared to what was reported in this survey (and I have no reason to think that it would be), it is hard to believe that there aren’t still a lot of potential complaints out there and that more of these potential complaints are going to crystalize into actual complaints given the current cultural environment.

This speculation about increased numbers of sexual harassment complaints coming to law societies would not be cause for concern if it were clear that law societies were optimally situated to receive these complaints. There are a few reasons to believe that they are not.

Barriers to Complaints Being Reported to Law Societies

One interesting threshold question to consider is whether law societies should be doing more to ensure that those individuals who wish to make complaints against lawyers for workplace sexual harassment do not experience inappropriate barriers to doing so. On this point, it is notable that the Solicitors Regulation Authority (SRA) in England and Wales issued a warning last spring emphasizing that lawyers and law firms should not use non-disclosure agreements (NDAs) to prevent the reporting of professional misconduct, including workplace sexual harassment. As summarized by one commentator,

Until [recently] the legal profession’s involvement in the NDA discussion was at arm’s length, in an advisory capacity. With the SRA’s intervention, the sector now has to question how many lawyers have themselves evaded accountability – and how many of their employers have allowed it to happen.

It appears that the SRA’s warning has had teeth. Earlier this year, it was reported that the SRA was “investigating eight complaints about NDAs drawn up by law firms relating to sexual harassment allegations.” Do Canadian law firms use NDAs to prevent sexual harassment allegations from reaching the attention of law societies? I don’t know. It strikes me that it is an important issue, though, for law societies to investigate and consider whether a policy and/or enforcement response is warranted.

Shortcomings in the Complaints Process

If and when complaints are received by the law societies, different structural obstacles emerge. Current complaints processes are not particularly well-suited to engage with sexual harassment allegations. A New Zealand Working Group which was tasked with studying regulatory responses to inappropriate legal workplace behaviour (including sexual harassment) recently issued a report wherein it was observed that while the lawyer complaints system seemed to be working effectively for client service complaints (like, for example, those relating to the competence of lawyers), “people appear to lack confidence in the complaints process to deal with bullying, sexual harassment and violence, and discrimination.” It strikes me that the same lack of confidence is likely to be found in Canada.

In response to this observation, the report considered options for improving the current complaints system in New Zealand, including, but not limited to, the following actions:

  • Providing information proactively on other support avenues to everyone involved during first contact;
  • Providing clear information to everyone involved in the process (including witnesses), including updates to everyone at each step about what they can expect and what is happening;
  • Encouraging the involvement of support people for all parties (including witnesses) in complaints (the need for culturally and group specific responses is emphasized);
  • Improving communication through appropriate language and tone, including avoiding legalistic and echnical language and appropriately acknowledging emotion; and
  • Incorporating alternative means of resolution in appropriate cases.

More ambitiously, the report also considered the potential value of creating “a specialised pathway for complaints about sexual violence, bullying, harassment, discrimination and related personal conduct issues.” As envisioned in the report, this specialized complaints unit would: “receive complaints (anonymously if desired) that the complainant considers to be sensitive; provide (non-legal) support to a complainant; and provide information about making a formal complaint and allow the complainant to decide whether to make a formal complaint.” The proposal notes the following potential benefits to creating a specialized complaints unit:

  • enabling complaints to be dealt with from the first point of contact by specially trained and dedicated people;
  • providing the information needed to enable people to make an informed decision about whether to make a formal complaint; and
  • giving complainants greater autonomy and control over the process

To be sure, there are some similarities between what New Zealand report proposes for a specialized complaints unit and what Ontario is doing through its DHC office. But not all Canadian law societies provide services akin to what is offered by the DHC office. Moreover, there are some aspects of the proposal in the New Zealand report that seem to go further than what the DHC office is tasked with doing (the report proposes, for example, the use of reporting apps to allow complainants to be informed of other complaints against the same perpetrator if they wish to be so informed).

As lawyer regulation guru Darrel Pink pointed out to me, there is some precedent in Canada for the use of a specialized complaints system for sexual misconduct allegations against professionals: the College of Physicians and Surgeons has a specialized complaints section for sexual abuse complaints against doctors. Canadian law societies ought to be investigating whether they should be creating new specialized complaints streams for sexual harassment complaints against lawyers.

Disciplinary Hearing Limitations

For those complaints that do end up reaching a disciplinary hearing, further issues loom. To focus on one aspect of the hearing process, it is not apparent that law society disciplinary tribunal members have appropriate training to deal with sexual harassment cases. In some jurisdictions, laudable and significant steps have been made to professionalize law society disciplinary processes, including providing training for tribunal members. However, I am not aware of any jurisdiction requiring training in adjudicating disputes that involve allegations sexual harassment and/or sexual violence. Most certainly, this is not training that is mandatorily required across Canada for all law society disciplinary tribunal members. It should be.

What are the risks when such training does not occur? A recent regulatory decision from New Zealand provides an illustrative cautionary tale. In short and as summarized on a news website:

A former partner has been fined $12,500 and ordered to pay costs of $2,500 for sexually harassing two employees at an unnamed law firm for what has been described as ‘unsatisfactory conduct’ in a Standards Committee decision, released yesterday.

The first incident occurred during ‘Friday night drinks’ held on the firm’s premises. Drunk, the partner touched the leg of a female solicitor and said, “you are very attractive.” The solicitor complained informally to the firm.

The second event occurred at the firm’s end-of-year party, held outside the firm. The partner approached a non-lawyer female employee on the dance floor, “pinched her bottom, leaving a bruise”, the decision said.

He propositioned her, saying “Are you coming home with me?”. He also grabbed her wrist and forcibly squeezed her hand against his groin while saying “this is for you”. The woman reported the events to the firm. The man subsequently resigned.

In addition to the lenient penalty imposed, another reason why this decision has come under criticism in New Zealand is because the Committee held that the conduct was not “sufficiently serious to amount to conduct which would be regarded by lawyers of good standing as disgraceful or dishonourable” such that it justified a referral to a disciplinary tribunal. Instead, the Committee held, lawyers of good standing would merely find this conduct “unacceptable.”

Would better training on adjudicating matters of sexual harassment and/or sexual violence have changed the Standards Committee decision in this case? It is impossible to prove this counterfactual. I’d guess, though, that it might have helped. Indeed, the New Zealand report recommended that all members of the Standards Committee receive relevant training.

Another option explored in the New Zealand report was the creation of a Specialist Committee to deal with complaints of sexual violence, harassment, bullying or discrimination. As contemplated in the report, this Specialist Committee would adopt “specialist procedures” and its members “would receive targeted training, support, advice and guidance on the best practices to adopt when considering and deciding on complaints of this nature.” Should Canadian law societies create specialized disciplinary tribunals for dealing with sexual harassment cases? It isn’t immediately clear to me whether this would be an optimal regulatory response. It does, however, at the very least seem worth investigating.

Challenges to Change

What might prevent Canadian law societies from considering some of the reforms suggested above? To be sure, there are the practical constraints of limited money, staff time and space on the regulatory docket. More fundamentally, there is also the existential issue of Canadian law societies struggling to map out the boundaries of their relatively new public interest mandates (for more on this, see here and here). Traditionally, law societies haven’t been concerned with conduct between lawyers within legal workplaces and have instead focused on reacting to client complaints about bad or negligent behaviour. This has changed somewhat with growing conversations and implementation of entity regulation in various jurisdictions (see, e.g., what has happened in Nova Scotia). In my view, however, there is still lingering fear about regulatory overreach and resistance to law societies “doing more.”

In the case of law societies addressing lawyer workplace sexual harassment, any fear of this kind is misplaced. Lawyer workplace sexual harassment falls clearly within law society disciplinary mandates: there is a specific professional conduct rule against it! On a more abstract level, there is also a strong case to be made that toxic workplace environments (including those where sexual harassment goes unchecked) can foster other and additional unethical conduct by individuals. Alice Woolley (now Justice Woolley) has compellingly drawn out this connection in a previous Slaw column.

It should also be noted that it may be that, ideally, regulatory engagement with workplace sexual harassment would involve both reactive discipline against individual lawyers who misconduct themselves and also proactive engagement with the ethical infrastructures of legal workplaces with the aim of preventing the misconduct in the first place. Regular readers will know that I’ve been a big proponent of introducing proactive, entity-based models of lawyer regulation in Canada (see, e.g., an old Slaw column of mine here).

Recognizing the potential value of using entity regulation to prevent sexual harassment in legal workplaces does not, however, absolve Canadian law societies from working to improve how they deal with complaints in their disciplinary systems. These complaints are being received and, as I argue above, are likely to increase in number. It’s time for regulators to think thoughtfully and creatively about how they can best respond.

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