Reporting Sexual Harassment: A New Professional Duty for Lawyers?

Sexual harassment in the legal profession is a serious problem. Anecdotal accounts abound, and empirical data reveals sexual harassment among lawyers to be a significant issue.[1] While the experiences of those subjected to sexual harassment are diverse, there is no doubt that, collectively, the impact on the wellbeing and careers of victims is profound.[2]

Professional conduct rules explicitly prohibiting sexual harassment have been in place for roughly 30 years. The enforcement of these rules has led, in some instances, to lawyer discipline, but has not, obviously, stopped sexual harassment in the legal profession. So, what more should law societies do? In his February 2020 Slaw column, Noel Semple surveyed several potential regulatory responses. Here, I consider in more detail one of the measures that Semple highlights: the introduction of a new rule of professional conduct mandating that lawyers report sexual harassment by other lawyers to their law society. Under such a rule, a lawyer who failed to report sexual harassment by another lawyer could be themselves disciplined for not informing the law society.

A mandatory reporting rule was proposed by Professors Elaine Craig and Jocelyn Downie in a December 2019 Globe and Mail op ed, where they make the compelling argument that “[l]aw societies need to change their rules to report other lawyers whom they have reasonable grounds to believe have engaged in sexual harassment or sexual assault.” Changing professional conduct rules to require sexual harassment to be reported was also discussed as part of a panel on professional conduct codes at the CBA-FLSC Ethics Forum in March 2020. Outside of Canada, in 2018, a New Zealand Law Society Working Group report recommended “enhancing lawyer reporting obligations” vis-à-vis sexual harassment, bullying, discrimination and other inappropriate workplace behaviour.

There’s much that is appealing about a mandatory reporting requirement. Not least, it signals that the legal profession views sexual harassment as serious misconduct. Presumably, more incidents of sexual harassment would be reported and stopped if a mandatory reporting rule was in place. Would-be harassers might be deterred if they knew their colleagues had a duty to report harassing behaviour. Lawyers are already obligated to report other lawyers who engage in bad behaviour like misappropriating trust funds or engaging in serious criminal activity related to their practice; why not add sexual harassment to this list?[3]

While I wholeheartedly agree with the intent behind a mandatory reporting rule – we need to force the legal profession to take sexual harassment more seriously and better hold sexual harassers to account – I worry about the possible unintended consequences of mandatory reporting. For victims of sexual harassment, mandatory reporting may limit their ability to decide for themselves how best to respond to instances of harassment, and instead force them into a possibly invasive regulatory process. Although lawyers already have the option to report other lawyers for sexual harassment, requiring, rather than simply allowing, reporting meaningfully impacts victim autonomy. Mandatory reporting may also place undue burdens on vulnerable bystanders, including new calls and those in precarious employment situations, by enlisting them as a de facto investigatory arm of the law society. I explore these concerns in more detail, below.

Take, for example, a first-year associate at a large law firm who works with a partner who repeatedly makes sexually suggestive comments in her presence. Right now, the associate has several options available to her. She could, do nothing, confront the harasser herself, report the harassment to the firm’s HR department or a mentor at the law firm, seek confidential advice and comfort from friends or make a complaint to her law society.[4]

There are many reasons why the associate may not want to report the matter to the law society. Drawing on Alice Woolley’s account of her experience of sexual harassment in the legal profession, it could be that “the personal exposure and costs of being a complainant to [her] career and life were not something [she] wanted to bear.” There is research that indicates “that sexual harassment litigation…appear[s] to exacerbate or perpetuate symptoms developed as a result of the original harassment” and can trigger “demoralization, anxious arousal, fear and self-blame.”[5] Making a report about sexual harassment to a regulator is not the same as initiating a civil lawsuit, but it is certainly plausible that, for some, engaging with the law society about an experience of sexual harassment could be re-traumatizing.

To be sure, some victims who report sexual harassment to their law societies might have a positive experience. It is also possible that some victims will experience the harms and costs discussed above but still believe that reporting to the law society was the best choice for them. To be clear, I do not think that any of the potential harms or costs that I detail above mean that victims of sexual harassment should not report the harassment or that we, as a profession, are not obligated to mitigate these harms and costs. My concern is about trying to preserve, as much as possible, the victim’s ability to make an informed decision for herself about what course of action is in her best interests.

It may be that the associate in the above example wants to report the harassing behaviour, but just not to her regulator – she might have confidence that her law firm can deal with the matter internally and reasonably believe that an internal process will yield the most productive results for both her and others in the long term. Or maybe the associate just wants to talk about the experience with her lawyer friends or colleagues without having to deal with the time, energy and stress of engaging any type of reporting process. A mandatory reporting obligation limits this associate’s choices and starts a chain of regulatory responses not of her choosing and out of her control in meaningful ways.

One response to the above concerns is to exempt those who experience sexual harassment from the mandatory reporting rule. Indeed, this is exactly what Professors Craig and Downie propose. The New Zealand Working Group report also recommends that victims be exempted from mandatory reporting obligations.

A victim-exemption would allow the associate in the above example to avoid discipline for not, herself, reporting the behaviour, but many concerns remain. If she engages the law firm’s internal processes or talks about the harassment with her friends who are lawyers, would the law firm or those lawyer-friends be required to report what happened to the law society against the associate’s wishes? One could graft on another exemption to the mandatory rule for lawyers who are contacted by victims of sexual harassment for advice or support. Indeed, the New Zealand Working Group recommends “an exception for lawyers providing confidential guidance and support about ethical and professional concerns.” Such an exemption may give the victim more options, but requires her to engage in an interpretative exercise: is the person she is talking to “providing confidential guidance and support about ethical and professional concerns”? More pressingly, others falling outside of this “guidance and support” exception would still be required to report to the law society. If another lawyer in the firm – who is not approached for advice or guidance – witnesses the behaviour, this lawyer would be required to report and the law society would be involved notwithstanding the associate’s desire to deal with the issue in another way. No one has suggested, to my knowledge, that bystanders could be exempted from reporting and it is hard to think of how a bystander exemption could be implemented without robbing a mandatory reporting rule of meaningful effect.

In their op ed, Professors Craig and Downie suggest anonymization as an additional measure, writing “[t]hird-party reporting should anonymize the name of the victim, unless they request otherwise.” Here, I wonder if it is possible to generally provide for anonymity. What about cases where the facts in the report would easily reveal the identity of the victim? Moreover, at least some of these reports will presumably lead to law society investigations in which the victim would be contacted. As a general matter, lawyers have a duty to cooperate with law society inquiries and investigations.[6] The New Zealand Working Group report acknowledges: “ensuring confidentiality may not be possible. One example is when a matter proceeds to a disciplinary process that requires witness testimony.” In these types of cases, anonymization might shield the victim’s identity from the public-at-large, but she still risks being identified to others – the law society, the offending lawyer and possibly others at her law firm. The stress and potential harms associated with being enveloped in a regulatory process still exist, too.

In relation to bystanders, part of my concern is rooted in the fact that sexual harassment – quite properly – is understood to encompass a broad range of behaviours, including:

• Displaying sexualized or other demeaning or derogatory images;
• Sexually suggestive, intimidating or obscene, comments, gestures or threats;
• Jokes that cause awkwardness, humiliation, embarrassment or offence, or which by their nature are clearly embarrassing, humiliating or offensive;
• Innuendoes or leering;
• Gender-based insults or sexist remarks;
• Communications with sexual overtones;
• Inquiries or comments about a person’s sex life;
• Sexual flirtations, advances, propositions, invitations or requests;
• Unsolicited or unwelcome physical contact or touching;
• Sexual violence; or
• Persistent unwanted contact or attention after the end of a consensual relationship.[7]

Does mandatory reporting in the context of such a broad, context-specific definition require bystanders to be in a constant state of vigilance and assessment as to whether their colleagues, opposing counsel or any other lawyers they encounter are misconducting themselves? Some potential bystanders will be new calls or others in precarious employment situations. Is it too much of a burden to require these lawyers to make a formal report to the law society any time they see something that might constitute sexual harassment, under threat that they themselves would face discipline if they do not make such a call? Is a new disciplinary rule the best response to bystanders who make incorrect judgements or who are, indeed, fearful of contacting their regulator about lawyers who exercise supervisory roles over them or make employment decisions that impact them?

There might be a few ways to reduce any undue burdens on bystanders. One option would be to allow for anonymous third-party reporting so a bystander doesn’t have to identify himself or herself. Once again, I’m not sure if anonymity could actually be preserved in many cases once surrounding facts are provided. Perhaps identifying facts could be stripped out of reports, but then procedural fairness issues would seem to arise if the result is requiring lawyers to respond to anonymous and vague complaints about their behaviour.

The New Zealand Working Group suggests that an additional exemption could be put in place “for lawyers who by reporting would risk significant harm to their mental or physical wellbeing or safety.” It might be that some bystanders would take the protection of this rule, but it would be stressful to have to self-adjudicate whether reporting will cause “significant harm” to one’s mental or physical wellbeing or safety. If the bystander self-assesses wrongly, then they expose themselves to discipline. This also seems like a high threshold to meet.

Maybe the law society could exercise significant discretion as to who they discipline for failing to report sexual harassment? This could protect some vulnerable lawyers but it also opens the door to uneven and unclear enforcement, which brings its own risks and potential harms. Do we want the law society to be making one-off, highly subjective decisions about who should be punished for breaching this rule? If such discretion simply means that the rule is rarely enforced, then, why introduce the rule in the first place? As noted by the New Zealand Working Group, “[w]ithout enforcement, [a] reporting obligation is a rule in name only. Enforcement must be a visible consequence of a failure to report.”

A further option might be to add a threshold so only particularly bad behaviour must be reported. The reporting requirement could stipulate that lawyers have to a duty to report only “serious” or “very serious” sexual harassment, with seriousness being defined in relation to instances of conduct, harmfulness of the behaviour or some combination thereof. There will be, no doubt, some cases where it is relatively easy to assess if this threshold is met. But, as a general matter, there will still be a significant self-adjudication burden on the lawyer to assess what constitutes “serious” or “very serious” sexual harassment in a given context. The stakes are high for the lawyer to “get it right” given that “to get it wrong” means that the lawyer him or herself is then breaching a professional conduct rule. And, of course, even if only “serious” or “very serious” harassment is formally subject to mandatory reporting, there will still be instances where the victims involved do not want the law society engaged.

It may be that I am overthinking all of this. Professors Craig and Downie correctly note that doctors and other medical professionals already have a duty to report their colleagues for sexual misconduct, including sexual harassment, although I wonder if there are ways in which the two practice contexts are meaningfully distinct in relation to the issue of mandatory reporting.

It may also be that some accept that a degree of harm, or a risk of some harm, to victims and bystanders of sexual harassment is a necessary cost of fighting a culture of silence in the legal profession. Some might argue that the public interest in mandatory reporting outweighs whatever harm some individuals might experience as a result.

Ultimately, I’m left wondering if there are options other than a mandatory reporting rule that might pose less risk of harm to the most vulnerable in the legal profession but still achieve the same goals of advancing the public interest and reducing sexual harassment in the legal profession. I tend to favour focussing on measures to improve law society capacity to respond better to voluntary reports by victims. As I outlined in a previous Slaw column, there are serious shortcomings in the current capacity of Canadian law societies to effectively deal with complaints of sexual harassment. Better training and systems are sorely needed.

I also believe that there is an important opportunity for law societies to proactively facilitate strong ethical infrastructures within legal workplaces. As observed in the New Zealand Working Group report, “[c]onditions in the workplace can enable inappropriate behaviour to occur, prevent people from recognising this behaviour as a problem, and may prevent those who experience such behaviour from reporting it.” What proactive measures might possible? Practice management audits could be designed to examine more closely the extent to which a legal workplace is effectively preventing and protecting lawyers, other employees, and clients from sexual harassment. In Nova Scotia, there is a requirement that, approximately every three years, law firms review and assess their Management Systems for Ethical Legal Practice, which includes examining the law firm’s commitment “to improving diversity, inclusion and substantive equality and ensuring freedom from discrimination in the delivery of legal services and the justice system.” Proactive and organization-focused measures alone are by no means a sufficient response. However, I do think they can be helpful tools alongside reactive complaints and disciplinary processes that target individual wrong-doers.

Law societies can and should do more to respond to sexual harassment in the legal profession; I’m just not sure that a mandatory reporting rule is the best answer.

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[1] See, for example, here and here, for two previous Slaw columns that outline some of currently available statistics. For an example of available historical empirical data, see the results of a survey of British Columbia lawyers conducted by Joan Brockman in 1990 (Joan Brockman, “Gender Bias in the Legal Profession: A Survey of Members of the Law Society of British Columbia,” (1992) 17 Queen’s L.J. 91)

[2] As observed in a New Zealand Working Group report on the topic of improving reporting, prevention, detection, and support in respect of sexual harassment, bullying, discrimination and other inappropriate workplace behaviour within the legal profession:

Targets of unacceptable workplace behaviour suffer significant physical and psychological harm. The effects are wide ranging and include depression and anxiety, sleep disturbances, high blood pressure and nausea.

Those affected face significant career and employment consequences. For example, 42 per cent of people bullied and 32 per cent of people sexually harassed reported an impact on their career and job prospects in the 2018 NZLS Survey. This impact has significant ramifications for the legal profession and attrition rates. The legal community is losing people who have a valuable and diverse contribution to make, because of the unacceptable conduct of others.

[3] For the full “duty to report” rule, see Rule 7.1-3 of the Federation of Law Societies of Canada Model Code of Professional Conduct and provincial and territorial equivalents.

[4] These options were taken and modified from Erin Cowling, “What should you do if you experience sexual harassment at work?” Precedent Magazine (March 6, 2018), available online: https://lawandstyle.ca/career/career-counsel-what-should-you-do-if-you-experience-sexual-harassment-at-work/.

[5] Michela Keet, Heather Heavin, and Shawna Sparrow, “Anticipating and Managing the Psychology Cost of Civil Litigation” (2017) 34(2) Windsor Yearbook of Access to Justice 73 at 81.

[6] See, for example, Rule 7.1-1 of the Federation of Law Societies of Canada Model Code of Professional Conduct and provincial and territorial equivalents.

[7] This list is taken from proposed amendments to the Federation of Law Societies of Canada Model Code of Professional Conduct to define sexual harassment in the Code in more detail.