Column

Bullying the Green

When I was a junior family lawyer, I was representing a client at a mediation. Opposing counsel was a senior male lawyer who brought his junior, who had actually been a former classmate of mine. She was the lawyer I had been communicating with throughout the file, but at the mediation, he was the one who took point. The mediator was also male. We sat in the boardroom, at a long rectangular table. Typically, in a private dispute resolution process, neutral professionals will sit at the ends of the table – i.e.: a jointly retained mediator, family professional, or financial professional. But in this case, the senior male lawyer sat at one end of the table, and the mediator at the other. Two men, one at each end. The other junior and I sat with our clients on either side of the table. I said nothing about this odd seating arrangement, I also said nothing when the senior lawyer propped his knee up on the table, leaned back and coughed or grunted each time I said something he disagreed with – which was a lot. Needless to say, we did not settle that day. I’ve often thought about that mediation and what I should have done differently that day. I’ve used it as a teaching tool with my negotiation students when we discussed gender and power in negotiations. Interestingly, the male students in my classes tend to tell me I should have said something, offered him a cough drop, or even directly told him to sit beside his colleague and client. The women in my classes tend to tell me I did the only thing I could, I tried to focus on the mediation, on my client. I don’t think either of those answers is completely right, the mediator is the one who should have told the senior lawyer to sit with his client and be respectful. It’s the mediator’s job to equalize the balance of power in the room. In the absence of his professionalism, I should have … ?

I was reminded of this incident recently when I saw a junior family lawyer post a comment in a Facebook group for family lawyers. The person asked senior lawyers to be respectful when dealing with junior lawyers, and not take advantage of them – for the sake of the client, work together to move the file forward. I am inspired to see junior lawyers think this way, but also saddened to know they need to ask. When I conducted empirical research on unethical behaviour in family law alternative dispute resolution, one of the topics amongst some of the focus group participants was bullying, senior lawyers taking advantage of and bullying junior lawyers. They talked about intimidation, threats, and letters that were aimed at embarrassing the junior lawyer in front of their client. My question is whether bully lawyers believe this is their job; are they behaving badly because they think their role as a lawyer requires it to pursue their client’s interests? I admit some people will behave badly because they can, but I do not believe that explains all types of professional bullying and I wonder if some of it has to do with misperceptions about the lawyer’s role itself.

The Lawyer’s Role is Not to be a Bully

Pursuing a client’s interests within the bounds of legality does not mean being a mafia henchman – doing whatever might be in the client’s interest provided it is lawful. David Luban posited that the obligations of the lawyer’s role cannot excuse immoral conduct. A person’s “moral agency” cannot be disassociated from their role because “moral agency” is a fundamental component of the “human condition”. Anything that is “morally wrong” for a lawyer to do on behalf of a client, is also “morally wrong for the lawyer to do”.[1] He rejected any significant role differentiation, rejecting the standard conception’s principle of non-accountability – the idea that a lawyer is exempt from any moral criticism for having helped a client act immorally, that the client alone owns any immoral conduct. He summed up his objection nicely when he said the standard conception of the lawyer’s role sounds like a “hit man’s rationalizations”.[2] In other words, it sounds like a hit man blaming his actions on the mob boss’s instructions, instead of taking responsibility himself. For Luban, without the principle of non-accountability, the lawyer is morally responsible for both the client’s objective and the means used to achieve it.

In contrast, Tim Dare conceptualized the lawyer’s role by appealing to the “function of law”.[3] Like Bradley Wendel and Alice Woolley, he posited that the lawyer’s role is structured by the institutional function that the role belongs to, including the function of determining and protecting legal rights. The lawyer’s role, vis-à-vis the function of law, is to facilitate access to our system of laws and the rights allocated by social institutions. A lawyer cannot provide benefits that lie outside those institutions. What Dare calls “hyper-zealous” advocacy is not something the law provides; it would be a benefit that lies outside the institutions that gives the lawyer authority and the client rights.[4]

In other words, a lawyer is not required to pursue anything that happens to be in the client’s interests. For example, a lawyer cannot “bump-off [a] witness”.[5] It sounds absurd, but Dare’s example is helpful to illustrate how his theory informs what a lawyer can do. If a client robbed a bank, and a witness saw him do it, it is in the client’s interest that the witness not testify. A lawyer cannot bump-off the witness because killing someone is illegal, but also because the institution of the law has not provided the client with the right to have his lawyer bump-off the witness. Meaning a lawyer’s “job is to act on the client’s behalf, relative to the institutions of law. It is not their job to pursue interests that are not protected by law.”[6] The client’s interest to be free of a witness who saw him commit a crime is not an interest that is protected by the law, nor a right the law provides. A client’s interest in having the scales of power tipped favourably in a mediation, absent tipping achieved through relevant law or facts, is not an interest protected by the law.

In short, according to Luban advocacy does not require or allow for immoral conduct, and according to Dare a lawyer cannot do something aimed at pursuing interests beyond those provided by the law. Either way, advocating does not mean bullying.

Mentorship, Not Bullying

Sadly, it is well known that bullying is common within law firms. In 2016, Adam Dodek wrote a Slaw column entitled “Ending Bullying in the Legal Profession”, in which he called on Law Societies to turn their attention from incivility to focus on bullying instead. Many concerns about bullying have been about articling, and junior lawyers being bullied by their supervisor or a senior partner – the people who have the power to hire the student back, or not. For example, in 2019 the Law Society of Alberta found that 32% of students experienced discrimination and/or harassment during recruitment or articling, and a similar study in Manitoba found the same for 24% of their students. That year, the International Bar Association also released a study that found “alarming levels of bullying, harassment and sexual harassment” in a work place or work context.

Last year, the Federation of Law Societies of Canada Standing Committee on the Model Code of Professional Conduct requested feedback on proposed amendments. The proposal is partially responsive to “discrimination, harassment and bullying” in the legal profession. Rule 6.3 would be amended to prohibit, among other things, “bullying” a “colleague, employee, client or any other person” (R 6.3-2[3](b)) and “cyberbullying” (R 6.3-2[4]). “Bullying” is defined to constitute a “form of harassment” that “may involve physical, verbal or non-verbal conduct. It is characterized by persistent and repeated negative behaviour” including “unfair or excessive criticism”, “ridicule”, “humiliation”, “exclusion or isolation”, “constantly changing or setting unrealistic work targets or assigning seniority inappropriate work”, or “threats or intimidation” (R 6.3-2[4]). The amendments also include a more robust prohibition on “discrimination” (R 6.3-1), “sexual harassment” (R 6.3-3), and “reprisals” (R 6.3-4). The Model Code already requires that lawyers “discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity” (R 2.1-1). The Law Society of British Columbia has practice resources for “Promoting a Respectful Workplace: A Guide for Developing Effective Policies”, which incorporates anti-bullying policies. The Law Society of Ontario provides a Discrimination and Harassment Counsel service for various kinds of harassment such as “name calling”, “racial slurs”, and “sexually suggestive or obscene comments or gestures”.

Bullying can be a strategic tactic. In the US, Andrea Schneider and Nancy Mills conducted a study on negotiation ethics and found that family lawyers had the “highest percentage of unethically adversarial lawyers”. They wondered if some family lawyers “act like pit bulls because that’s exactly why their clients hire them. … [it] could be perceived to be the most satisfying way to get back at the (lying, cheating) spouse.” Images of inequality between professional resources also springs to mind. For example, the corporate client who is able to afford a team of lawyers, opposing a party who is barely able to afford one lawyer. Document dumping and other forms of procedural abuse are used to exhaust the other side so they capitulate on a settlement. The Model Code provides that a lawyer “must avoid sharp practice and must not take advantage of or act without fair warning upon slips, irregularities or mistakes on the part of other lawyers not going to the merits or involving the sacrifice of a client’s rights” (R 7.2-2). In addition, judicial oversight, cost consequences, and client willingness all serve to balance some of this behaviour.

The problem is there is not much a law society or judge can do when the bullying is not in violation of the law or Model Code, when it does not breach practice norms – when it is just the stronger kid picking on the weaker one. Amy Salyzyn wrote an excellent Slaw post (and paper) on the ethics of lawyers who send demand letters, see “Bully Lawyers & Shoplifting Civil Recovery Letters: Who’s Going to Stop Them?”. She argued that a lawyer who sends a bullying, materially misleading demand letter has engaged in professional misconduct because the lawyer is “knowingly assisting their clients in dishonest conduct and violating their obligations to act in good faith and practice law with integrity.” Arguably, if a lawyer bullies junior counsel to the extent that they misrepresent the law, such conduct is analogous to a materially misleading demand letter, meaning, it could amount to professional misconduct. But more often, I suspect that bullying behaviour is disgraceful, professionally accepted, but not unlawful. (Although I have heard of lawyers making up cases, verbally citing a precedent that does not exist in hopes of bullying a junior into a corner – i.e.: misrepresenting the law.)

In family law, especially in light of COVID-19, junior lawyers appear to be setting up their own practices earlier than before. There are very few articling positions for students interested in family law to begin with, so if students are not getting competent family law training in articling, and they set up their own practice, only to be bullied by opposing counsel, what does that teach them? Obvious answer: that this is the way things are done. And so, like any cycle of abuse, without intervention or a solid grounding in ethical conduct, the bullying continues. Family law has been shown to have robust “communities of practice”,[7] perhaps in response to the solo nature of the practice. As a result, it seems to be even more important for those communities to work together to demonstrate that bullying is not accepted – even if that is what the client wants. The lawyer’s job is not to meet interests that are beyond what the law provides or protects. Family law provides rights and obligations parties owe to each other and their children following relationship breakdown; the law provides structure for parties and their lawyers to negotiate within, in hopes of reaching an agreement that meets both sides’ interests. It seems to fall to the profession to educate the public that separation or divorce does not necessitate seeking vengeance through a lawyer, that is not the aim of the family justice system. In other words, if a client expects the lawyer to be a lawful bully, it is up to the lawyer to decline pursuant to their requirement to “be courteous and civil and act in good faith” (R 7.2-1), and hopefully soon, a requirement not to bully. Beyond law society guidance, it seems to be up to lawyers themselves – senior lawyers being good mentors to junior lawyers. I had several inspiring mentors in practice, lawyers can create a professional culture that discourages bullying and encourages respectful mentoring instead.

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[1] David Luban, Lawyers and Justice: An ethical study (Princeton, NJ: Princeton University Press, 1988) at 154.

[2] David Luban, Legal Ethics and Human Dignity (Cambridge, UK: Cambridge University Press, 2007) at 9.

[3] Tim Dare, The Counsel of Rogues? A Defence of the Standard Conception of the Lawyer’s Role (Burlington, ON: Ashgate, 2009) at 59.

[4] Dare, ibid at 76-77.

[5] Dare, ibid at 79.

[6] Dare, ibid at 80.

[7] Lynn Mather, Craig A McEwen, Richard J Maiman, Divorce Lawyers at Work: Varieties of Professionalism in Practice (New York, NY: Oxford University Press, 2001) at 41-42.

Comments

  1. I believe that some of the Rules of our system actively encourages “unethical” behaviour. Is it ethical to delay a civil lawsuit hoping the Plaintiff will die. I just settled a lawsuit in which the minor plaintiff was brain injured at the age of 1 in 2000. the case settled in 2021, after 21 years. The minor had serious injuries and almost did die before the settlement. Our Rules encourage such behaviour because our Rules say that it is up to the Plaintiff to constantly push the lawsuit. If the Defendant does not respond to something, the Plaintiff must bring an application. If the Plaintiff is waiting for the the Defendant to do something such as produce its records, schedule a questioning or provide an expert report. The Defendant can do nothing and hope that 3 years pass so they can make a drop dead application. Therefore, if you are defence counsel and your client is liable, you would be negligent if you actually responded to the Plaintiff. the Defence counsels best strategy is to do nothing and hope that they can trick the Plaintiff’s counsel into letting 3 years pass and argue that nothing done in those preceding 3 years was a material step. Therefore, I think that our legal system encourages bad behaviour.

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