Slaw.ca Legal Ethics Column, February 24, 2020.
Far too many people who work in law firms are subject to harassment by lawyers and paralegals. What, if anything, should our law societies do about this? Much depends on whether one sees the problem as “bad apples,” or as symptomatic of problems with the entire “barrel” which is the legal profession in Canada.
“Harassment” is defined by the Ontario Human Rights Code as “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” Harassment is often (but not always) sexual in nature. It is distinct from discrimination, but is often based on prohibited grounds of discrimination such as gender, race, or disability. Harassment is distinct from assault (which requires touching), but in many cases the harassing course of conduct includes assault.
Once you start paying attention, evidence of harassment in law firms is not hard to find. Every month, approximately 15 complaints are made to the Law Society of Ontario’s Discrimination and Harassment Counsel (DHC) , regarding alleged discrimination or harassment by a member of the legal profession. Sexual harassment is the most common complaint to the DHC, representing a quarter of the complaints. Racial harassment is also commonly recorded in this data. In a recent Globe & Mail article, Jocelyn Downie and Elaine Craig remind readers that Gerald Regan, a famous lawyer and former Premier of Nova Scotia, has been accused of sexual harassment and assault by more than 35 women. His success seems to suggest that this conduct is still taken lightly in many quarters.
Whose Job is This?
One might ask why workplace harassment is the law societies’ responsibility. Traditionally, legal services regulation has focused on protecting clients, not protecting law firm employees. The harassment problem is not unique to legal workplaces. It might be argued that the best response will come from provincial and federal human rights commissions. They have relevant expertise and the power to deal with the problem in all workplaces, even-handedly. Preventing harassment is also now a prominent part of occupational health and safety legislation across the country, as Yosie St.-Cyr has noted in her Slaw column.
Nevertheless, in my view preventing and responding to harassment is an essential job for law societies. Their legislative mandate is to protect not only clients, but “the public interest.” There is no reason to exclude employees from this ambit.
Preventing harassment is also is in clients’ interests. No one does their best work for clients when they are being targeted. In the worst cases harassment victims are driven out their jobs or even driven out of the legal profession altogether, tragically curtailing the good they can do for clients and the public at large.
Human rights commissions have their hands full, with widespread delays at the OHRC reported in January 2019. Nor are their limited remedies always sufficient. Although not every case of harassment is egregious, the legal profession has its share of Harvey Weinsteins. High-powered repeat offenders, who may scoff at human rights commissions, have reason to tremble before law societies. Disbarment and suspension of practice are not remedies available elsewhere. The Ontario Court of Appeal’s recent finding that there is no tort of harassment arguably increases the need to provide administrative remedies, for example through the law societies’ disciplinary processes.
There are two very different ways to understand the problem of harassment in the legal profession, and each of these two suggests very different solutions. Is harassment basically a problem of “bad apple” harassers, whose behaviour must be detected and disciplined? Or is harassment better understood as a problem with the entire “barrel” – a Canadian legal profession afflicted by partriarchal attitudes, impunity for powerful partners, and structural racism? The two diagnoses lead to very different prescriptions.
Harassment is, of course, something an individual does and for which that individual can be held responsible. This behaviour is clearly forbidden by the Model Code of Professional Conduct (s. 6.3) and by the rules of every province. Law societies might take steps to more consistently detect and discipline individual harassers who are members of the legal profession.
Craig and Downie’s Globe and Mail article argued that lawyers should be required to report other lawyers “whom they have reasonable grounds to believe have engaged in sexual harassment or sexual assault.” This would add sexual harassment to Rule 7.1-3’s short list of “mandatory reporting offences,” alongside misappropriation of client money and criminal conduct related to law practice.
Fixing the Barrel
Alice Woolley wrote a very memorable Slaw piece in 2014 about her experience of sexual harassment and assault in a prominent Calgary law firm. Wooley wrote that she was
not inclined to think that sanctions or discipline are the answer. I never seriously considered complaining about XY’s conduct to the law society – the personal exposure and costs of being a complainant to my career and life were not something I wanted to bear. My guess is that my reaction is the typical one. I also do not think post-facto reactions are the most effective tool in relation to any ethical issue.
It is interesting to juxtapose this with mandatory reporting requirements, and more generally with regulatory responses aimed at detecting and responding to individual harassers. Craig and Downie’s proposed duty to report harassment would not apply to the victim, and the mandatory report would presumptively anonymize the name of the victim. Some might nonetheless be concerned about whether such a reform would deprive victims of autonomy, and whether anonymous complaints would lead to effective disciplinary action given evidentiary problems.
Woolley’s piece concludes with a call for lawyers to “create a culture where the subject of our colleagues’ ‘hotness’ is not discussed, where we create appropriate separation between professional and sexual interactions, where senior lawyers embrace the limits on personal interactions that come with seniority and power.” The apparent premise is that harassment is not simply a consequence of bad behaviour by bad apples, but rather symptomatic of problems with the whole barrel.
The Codes of most provinces, in addition to forbidding harassment, also say that lawyers have a “special responsibility” to respect the obligations of human rights codes, including the prohibition of harassment. Presumably a “special responsibility” means more than just a duty to personally comply. It might mean a duty to think and act systematically to make the barrel less hospitable to bad apples.
What specific regulatory responses might follow from this way of looking at the problem?
- Law firms, as entities, might be required to implement and abide by policies about harassment.
- Material about preventing and responding to harassment can be made part of law school curriculum, and continuing professional development. (Some Canadian law societies, including the LSO, have done so.)
- Power imbalance is a risk factor for harassment. Some argue that articling creates an unusually extreme power imbalance, by making the articling student’s ability to practice law dependent on the principal’s essentially unaccountable say-so. Indeed, there is persuasive evidence that articling students are especially likely to be victimized. (Adam Dodek’s Slaw posts are essential reading on this). Less harassment of entry-level lawyers might be a positive consequence of abolishing articling, as Amy Salyzyn and others have argued.
A potential drawback of systemic solutions is that they create costs and burdens for all lawyers and legal workplaces, including those which are doing everything right. There are no easy answers or slam-dunk policy reform options. However it is important that our regulators stay focused on preventing and responding appropriately to harassment in the Canadian legal profession.