Ending Bullying in the Legal Profession
Lindsay Cameron‘s best-selling novel BIGLAW is billed as “The Devil Wears Prada meets One L, BIGLAW provides an insider’s view of the cut-throat world of big New York law firms.”
Most of the partners in the book are bullies. The book is a good read not so much because the characters and the storylines are outrageous but rather because both are credible and familiar. Cameron, a graduate of UBC’s Faculty of Law, was a corporate associate for six years in large law firms in both Canada and the United States. During that time, she no doubt accumulated a lot of material for her book from the lawyers who she worked with.
Probably every other month, I receive an e-mail from a former student complaining that her work environment is “toxic”. They feel trapped with no recourse. Exploitation and bullying of articling students by lawyers and law firms is well-known but the legal profession has done little to address it. There is much hand wringing by legal organizations about the need to support new lawyers in the profession, about the paucity of mentoring and the retention of women in the profession. Yet these organizations ignore a likely source of significant stress in and on the legal profession: bullying.
In December 2015, the award-winning “Young Smart & Legal” published a post on how to deal with “Lawyer Bullies” as part of its New Lawyer Series. The blog contains excellent self-help advice but it lets Law Societies off the hook.
Law Societies are responsible for regulating the practice of law in the public interest. Bullying new lawyers is certainly not in the public interest. Creating toxic work environments is not in the public interest. Hopefully, the proposed move to entity regulation by Law Societies across the country will put the issue on the radar.
I would like to see Law Societies expend the same sort of energy on bullying that it has on incivility. Truth be told, I would like to see Law Societies turn their focus away from incivility and focus instead on bullying. As I have previously written, the legal profession’s focus on civility is missing the mark.
Law Societies have been on a quixotic civility quest. They have invested tremendous energy on the prosecution of individual lawyers for borderline actions. The Law Society of British Columbia disciplined a lawyer for having the audacity to stand up to a lawyer-bully in Ontario who was sending letters to parents of teens caught shoplifting demanding payment on the basis of next to no legal validity.
The Law Society of Upper Canada has pursued a prosecution of lawyer Joe Groia on incivility charges for close to a decade at an estimated cost of hundreds of thousands of dollars if not millions, when all the staff time is considered.
Imagine the anti-bullying support programs that could have been created instead. I certainly am.
All law firms should commit to ensuring a “bullying free” workplace. Law Societies should lead and enforce such initiatives. We do not deserve to call ourselves a profession dedicated to the public interest while we continue to tolerate such unacceptable behaviour.
Agreed entirely, Adam – the law societies’ conduct in both the provincial cases you cite was shameful, and you could have added the Doré case in Quebec, where the system failed right up to and including the Supreme Court of Canada.
Bullying is an important issue, though it may be hard in some cases to draw the line between firmness and inappropriate demands. One can imagine law firm (and other firm) atmospheres becoming toxic for more reasons than bullying, including macho insistence on super-long hours, positional bargaining, and so on – all matters of degree, as to when productive high performance expectations cross the line – and different people will have different lines.
If you can’t stand the heat, get out of the kitchen – that can be a bully’s line, but it may just be good advice…
Thanks Adam ; let me add a few personal and hopefully helpful comments.
I firmly believe that the damage to the profession that has been caused by civility prosecutions in cases like mine is badly under-estimated . No one really opposes the encouragement of civil behaviour ; but unlike bullying [which we see far too often in practice] , incivility is often found only in the eye of the beholder . When it becomes the subject of a prosecution it has a chilling effect on how all lawyers do their job.
Bullies prey on those who are seen by them to be weaker or inexperienced . Allegations of incivilty however are usually the opposite ; most often they are levelled by those in power against outliers [especially defence lawyers ] who stand up and challenge another lawyer who may be abusing his or her more powerful position . As you rightly point out, standing up to a lawyer-bully resulted in Mr Laarakker being convicted of misconduct . The other lawyer appears to have avoided public discipline . What do these value judgments say to the public about our core values as lawyers ? How can they possibly help restore public confidence in the legal profession ?
We should never forget that Martin Luther King was harshly criticised by those in authority for allegedly being uncivil in the early days of the Civil Rights movement . We are all still grateful for his “uncivil” conduct in pursuit of a greater public good .
I find it interesting that my case still has currency. Do I expect a mea culpa from the LSBC? Absolutely not. But my support has been heart warming.
Law firm support staff also get bullied. That’s not right and not in the public interest, either.
Thank you for such a thoughtful piece, Adam. I agree that the emphasis on civility has been troubling, and as Joe Groia says, pushing civility is generally a means for those in power to enforce “acceptable” conduct. I think it also creates an environment in which bullies thrive, because their behaviour is so often normalized by the profession. It makes me wonder how successful any anti-bullying support programs run by the law societies would be. Articling students and young lawyers (and yes, support staff too) face being blacklisted if they name bullies, and being seen as weak and unable to handle the pressures of law practice if they tell others their workplace is toxic. Do we need a culture shift, instead?
Thank you, Professor Dodek.
I’ll offer the non-lawyer’s perspective. What we term “bullying” (I really wish there was a better term) became a rather trendy subject for the media some years ago. We have a Premier in B.C. who, when she was employed in the media, made a point of leveraging it. There was originally, I recall, a particular focus on bullying in schools, but then also an interest in “workplace” bullying. How many of us haven’t experienced or witnessed it?
My rather long record of challenging the legal establishment began with an employment termination that was the culmination of a classic case of workplace bullying (one individual in particular I would describe as a full-blown sociopath).
In trying to contend with the legal system I have experienced on a number of occasions what I characterize as “courtroom bullying”. And the worst of the perpetrators are not the opposing counsel but the adjudicators. One of their responsibilities ought to be to ensure there is no abuse of power in the forums over which they preside. But the power they have is such that they can bully a self-represented litigant, sometimes without even saying anything.
That lawyers are being bullied in their own workplaces doesn’t surprise me at all.
Not only do I agree, I think much of your logic could be exported to the criminal justice system. When I think of how much money was spent on Duffy and other trials, I want to fall over. Why not try addressing problems that are solve-able on the front end, rather than the back end. Should always be a first choice policy option. Cannot always be done, but we for some reason refuse to recognize that every prosecution/disciplinary choice has severe cost implications that have enforcement repercussions.
Thanks to all for insightful comments.
Interesting topic and thank you for Mr. Dodek for the article. I am not a lawyer. I have an interest in Canadian law and the legal profession. I have also represented myself in BC Supreme Court. I read Canlii daily as well as most judgements of the Federal and SCC.
I read the cases mentioned above (Groia, Laarakker and Mr. Budgell) to gain insight into Mr. Dodeks article and to understand Mr. Bludgell’s concerns.
There is no doubt, in my mind that Mr.’s Groia and Laarakker were improperly disciplined by their respective Law Societies. To categorize their actions or behaviors as “uncivil” and deserving of sanctions, is beyond the realm of ridiculous.
The case against Mr. Groia is so replete with non-incriminating quotes and references I am at a loss to understand what, if anything, did Mr. Groia do other than vigorously defend his client. Just because he had better quips and comments toward counsel does not make him “uncivil”. Now he is saddled with paying costs to the LSUC, which were not his doing.
Mr Laarakker’s supposed “incivility” was labelled as being misconduct by the LSBC. Why? He did exactly what needed to be done against an unscrupulous fellow lawyer who was trolling and bullying unsuspecting citizens in the search of easy money. Even I know that a demand letter coming from another jurisdiction in Canada is an empty threat deserving of the round file. Were his follow up actions deserving of sanction? I think not. I cannot claim to understand his motivations, but I DO understand that if it were me, I would have acted similarly.
As a retired member of the health care profession, I would have been incensed had my regulatory and professional body had expended financial resources to discipline members in this manner. “Civility”, it seems, appears to be more relevant and important in the legal profession than in any other professional organization. Is it not more important to be a strong advocate for a client than having to worry about offending the feelings of other members in your profession in the “workplace”?
Perhaps the members of each law society should be asking if there dues are being put to good use. They should be asking their societies what Mr. Dodek proposes. Demand accountability rather than allowing the prosecution of their own members over irrelevant and ridiculous issues that the rest of society could care less about. This does not even take into account the use of valuable court time, which, even with cost awards, does not mitigate the costs to the taxpaying public.
Thank you.
Now that the insightful comments are out of the way, let me weigh in.
Assuming everyone is who they say they are, this is quite the comment section! We have Mr. Groia, Mr. Laarakker, and Mr. Budgell, each of whose exploits I have followed with great interest, and to each of whom I tip my hat. Mr. Laarakker, of course, is a hero. The extortionist crooks deserved worse than he dealt them.
My style is different from Mr. Groia’s, in that I try to show the wicked for what they are with gentle words and a smile on my face, but it seems like his case had more to do with thin skins than the real incivility problem, i.e. when lawyers try to win cases by treating people like s—t rather than on the merits. I don’t think that’s what he did.
As for Mr. Budgell, if what he says is true, the court system in B.C. could be dangerous; can his Shaolin sword defeat it?
It seems civility is the way to express behaviour in a law firm and interactions among lawyers, etc.
That is part of it, but a bigger question could be are lawyers normally prepared in law school, on management style and how much it impacts other staffs’ productivity? Workshops, structured learning on how to foster effective team dynamics, innovation with actionable ideas put into place by others in a timely manner, etc. during one’s career is a consideration. Of course, this isn’t what a star performing lawyer wants to be known/respected by their colleagues.. vs. backroom staff relationships.
Good management of a growing firm or keeping valued staff doesn’t just happen. There are some principles on management and effective coaching without bullying.
Traditionally, law schools teach legal theory. Articling teaches legal practice (and presumably some students learn there that bullying is okay). And any other skills needed to run a business are up to new lawyers to learn on their own.
Law schools are moving more into offering practical courses, but I suspect if a student wants to learn business management skills as well they would be pointed to one of the joint JD/MBA programs and told to learn business at the business school.
As Mr. Budgell relates, bullying of lawyers by lawyers is a problem not only in the office, but also because it spills over into court and into the dynamics of individual legal cases. In this sense, bullying within law firms is only a symptom (or expected manifestation) of a larger culture of bullying within the legal profession – by lawyers and former lawyers (now called ‘judges’).
And then there is the dark side of the ‘win at any cost’ culture that seems to be on the rise, especially within larger law firms. The bullying mentality plays a large role in that behaviour. How far have things gone when personnel from large law firms get caught fabricating evidence, lying to judges and using the office computer network to send anonymous threats to opposing witnesses?
Not to mention the cover-ups by a Law Society of Upper Canada that, as with Mr. Groia’s case, seems to have lots of energy and resources for the selective prosecution of lawyers from smaller firms: but pays so much deference to large law firms that those monsters are virtually laws unto themselves within the legal profession.
The suprising recent elections of Joe Groia, Rocco Galati and a few other outsiders as benchers was in part a healthy message to the legal establishment that large numbers within the profession believe ‘more of the same’ isn’t working.
As a non-lawyer and former police detective who has decided to take an interest in misconduct, integrity and governance issues in the legal profession, I’m less than impressed with the gap between what the legal profession and the lawyers’ unions say – and what they actually do and don’t do.
Bullying is only a symptom of a much larger problem within the culture of the legal profession.
The legal profession needs to return to its foundations of Integrity, Accountablity and Rule of Law, and it needs to do that soon.
Donald Best
website: DonaldBest.CA
email: info@donaldbest.ca
http://donaldbest.ca
Jean suggests lawyers might benefit from a management perspective, but the management perspective actually comes at this problem rather differently.
There are fields past counting where bullying is spoken of with despair and disapproval, but culture change will elude all comers until one realizes that bullying is not only what the system is designed for, but also, that it is a competitive advantage in the field.
Bullying is how lawyers are made. It’s traditionally been how doctors are made, how athletes are made, how pilots are made, and yada yada. What you’re talking about is the formation process of an elite group, and the process of tribalism within it that keeps performance high. This isn’t a place where everyone gets a gold medal just for coming out. It’s an elite, high performance system, and this is how elite, high performance systems are made and sustained.
I’m an SRL, by the way, so have the dubious pleasure of being being excluded and fought off while understanding perfectly what function the exclusion serves.
If you want to make things kinder and gentler, the trick is to do so without leaving the competitive advantage intact. Traffic is a good model. people who speed and cut others off face a risk of enforcement. But they DO get ahead.
But you also have to be careful that you aren’t also sacrificing performance capacity. The people who drive on the edge are often good drivers, while the rest of us are sort of slugs for whom doing a shoulder check is so arduous that we prefer never to change lanes.
Contrast these two types of change: going green in the office, and reducing bullying. Going green could be achieved by letting diffuse forces work their magic on different levels of the organization. A mail clerk could start recycling; the librarian could use re-usable dishes for take-out lunches; a senior partner could start cycling to work. While there was a bit of stigma to being the first to do all these things, the culture of the organization can change in an organic, voluntary way (recycling nazis are a later development). But the culture shift you want in a law office on the bullying front is far more complicated. It may need co-ordination from the top, external co-operation, and enforcement designed both to reinforce positive and punish negative behaviours. But none of it will work if it remains a competitive advantage to be a jerk, or worse, if being or working with jerks actually sharpens law skills. You can’t do all of that in law school, and you shouldn’t try. Learning to joust is something best learned in the real world, over a long period of time, and from experts. Sometimes by getting knocked off your horse.
Law is not an organization in which one change initiative can be made to stick; it’s a system of different types of organizations, each of which has its own culture. It’s good to name and describe the behaviour so everyone has the ability to discuss what is happening. How to change it in each place: different question. Every initiative and the response to it will be instructive.
Terrific comment thread responding to an important issue (thank you Adam) I am especially happy to see both lawyers and SRLs contributing to this discussion. We need a lot more of this sharing of views and ideas.
My two cents. We commonly see bullying behaviors by lawyers towards other, usually junior, lawyers – by the Bench towards counsel – and by counsel towards SRLs. Each mode of bullying is shameful and there is little if no accountability for the behavior. Why not? Because unlike the much vaunted but superficial notion of “civility”, bullying reflects a primitive hierarchy of power that each successive generation of legal professionals has bought into. It’s a perk of seniority that you get to bully the younger kids (sorry, colleagues). What the influx of so many members of the public brings to this is the dawning realization – by SRLs and more and more lawyers – that bullying is unacceptable behavior by adults and it inevitably denigrates the justice system still further in the eyes of the public – who as a result of their increased presence in the courts, are watching more closely now.
The only people who can stop the culture of bullying in law firms and in the courts are members of the legal profession themselves, both lawyers and judges. Judges could soon put an end to the most egregious bullying and other abuses of self-represented litigants, but generally won’t rock the boat against fellow members of The Club.
It doesn’t matter how strong the evidence of misconduct is against a lawyer, The Club will usually find a way around it if the choice is between damaging the career of a fellow lawyer or finding for a self-represented person.
While ordinary Canadians can, as Julie Macfarlane says, “watch more closely”, the legal profession has effectively structured itself to be unaccountable to anyone but fellow privileged members of ‘The Club’.
Lawyers (especially from #BigLaw firms) run the law societies. Ex-lawyers (now called ‘judges’) run the courts. Lawyers dominate Federal Parliament and the Provincial legislatures.
So the truth is that members of the legal profession are the only Canadians capable of taking direct action to change their own culture to stop the oppression of self-represented litigants in the courts. Actually, they don’t even have to change the culture: all they have to do is uphold the rule of law. The legal profession’s bullying culture would change the moment that judges and law societies started enforcing existing standards already on the books.
We ordinary citizens may, however, speak up once in a while – and sometimes even in the newspapers if the news media’s legal advisors (called ‘lawyers’) don’t issue a ‘kill’ on the story. Which happens more than most realize, as many can attest.
One question though… Why do we citizens continue to allow the legal profession to regulate itself without independent civilian oversight and outside accountability? We absolutely insist that the police are not the ultimate regulators of their profession. Why should our society allow the arguably far more powerful legal profession to operate without external oversight and accountability?
Another step that law societies may wish to take is to promptly investigate complaints that a lawyer is undermining the legal process by: making false or misleading statements in court, not following the rules of professional conduct, sharp practice, and threatening witnesses.
Some law societies have a policy not to investigate while litigation is ongoing, however this allows the bad apples to undermine the legal process and besmirch the reputation of lawyers as officers of the court.
Allowing the lawyer to do irreparable damage by forestalling investigation until all appeals are exhausted does nothing to discourage future bad behaviours. There is no point in having rules of professional conduct if they are not going to be enforced.