Fit and Proper Culture? Addressing “Hidden Bad Behaviour” in the Profession

The Legal Profession Uniform Law (NSW) states that to be an admitted lawyer, a person must be a “fit and proper” person (1). But what does this mean in practice?

For the Legal Services Commissioner of New South Wales, John Mckenzie, it means that a person is, and continues to be, “a fit and proper person to be given the privilege of a practising certificate”.

The privilege attached to practise is significant, explains the Commissioner, as being a legal practitioner is ultimately a position of trust. For example, legal practitioners have the privilege of confidentiality in their communications with clients, allowing them to provide clients with frank and fearless advice. They can also enter undertakings on behalf of clients in court proceedings (with their instructions of course).

The ultimate example of this privilege is the appointment of the judiciary, which forms one of the three arms of government. Therefore, if a legal practitioner, no matter their seniority or prestige, is found not to be “fit and proper”, their actions have the potential to tarnish not just the firm, company or chambers where the practitioner works, but would “affect the legal system as a whole”.

Whilst the most common complaints the Commissioner deals with at his office concern disaffected clients, often in highly personal proceedings such as family law or litigated estates family provision matters, the prevalence of sexual harassment, and what his office can do to help redress instances of this inappropriate conduct in the legal profession – has long been in the Commissioner’s sights.

One action the Commissioner has taken is the establishing of an informal and confidential complaints process to encourage legal practitioners to speak up in relation to sexual harassment.

In addition to these reporting tools, his office is launching a bespoke confidential online portal later this year.

What prompted the Commissioner’s focus on combatting sexual harassment in the profession?

The light bulb moment for the Commissioner was witnessing the shockwaves in 2018 in New Zealand, when one of its largest law firms made front page news in relation to the firm’s culture and the sexual harassment of some of its junior workers. This incident sparked an outcry and “led to a judicial inquiry and reflections as to the actions, and (in)actions of the regulator in New Zealand”.

Watching this unfold, the Commissioner began investigating matters within his own jurisdiction. In these investigations, he became cognisant of the fact that since 2014, the profession has been aware that it “had a problem” with gender diversity, harassment and discrimination, and lack of inclusive workplace culture. Subsequently, the Commissioner’s office developed its formal and informal complaints reporting process for its website.

The 2020 report, Respect@Work: Sexual Harassment National Inquiry Report by Sex Discrimination Commissioner Kate Jenkins of the Australian Human Rights Commission, confirmed that his office was on the right track. An insidious problem highlighted by the report was the dismayingly common abuse of the profession’s hierarchical power structures. This abuse proliferates inappropriate behaviours, such as sexual harassment.

Whilst Commissioner Mckenzie concedes that there are some benefits to a hierarchical system, such as the appellate process, he notes that it also hides serious issues such as sexual harassment.

“The nature of legal services relies so heavily on reputation. The fear of reputational risk [if a practitioner were to make a complaint], of being seen as a “complainer” and the adverse effects that “speaking out” can have on a career are, sadly, not without justification.”

– John Mckenzie, Legal Services Commissioner of New South Wales

It is this fear of reputational damage that the Commissioner sees as a significant barrier to legal professionals reporting sexual harassment.

“I get a miniscule number of formal complaints each year… when we look at the research, this behaviour is obviously more common than the formal complaints would indicate,” said the Commissioner.

When asked if he believes that the profession has a problem with calling out bad behaviour, the Commissioner did not hesitate in proclaiming that, “[we have] a big issue in calling out bad behaviour. In many ways, particularly in relation to hidden bad behaviour. It goes to the reputational aspect and why we [at the Commission] are looking at improving confidential informal reporting [tools]”.

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What is the point of informal reporting?

Furthermore, how can this data help the Commissioner enforce the ethical standards of the profession?

The Commissioner’s initial objective is to get an accurate data map of the location and frequency of the incidence of sexual harassment in the profession. This will enable the regulators to engage with and facilitate better policy actions to be taken by professional bodies.

Enforcement is the second objective. For practitioners governed by the uniform law, the Commissioner has the power to complete compliance audits of legal practices and barristers’ floors if he of the belief on “reasonable grounds” that the legal profession act and conduct rules are being broken (2).

The Commissioner assured the author that in any audit, the anonymity of the complainant(s) would be maintained. He emphasised that his office is looking to move the focus away from complainant(s) and place onus on the leadership of legal workplaces to take preventative action, reduce and ultimately eradicate sexual harassment.

The Commissioner’s parting words for the profession this CPD season?

The most important ethical issue – according to the Commissioner – is personal conduct. Sexual harassment has been unlawful in all workplaces in Australia for almost 40 years. We are a profession that prides itself in its role as advocates for and defenders of the rule of law, yet there are those in our profession that have not been complying with the law. In fact, we have been found to be one of the worst performing occupational groups.

The next big initiative for the Commissioner will be the launch of the online platform for anonymous informal reporting of sexual harassment in 2021 – It is time for change.

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References

  1. Legal Profession Uniform Law (NSW) No 16a of 2014, s 17(1)(b). See also Legal Professional Uniform Law Application Act 2014 (NSW), s 17(2)(b).
  2. See Legal Professional Uniform Law Application Act 2014 (NSW), s 17(2)(b). See also, Legal Profession Uniform Admission Rules 2015 (NSW) rr 16, 17 and 20; Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 123, Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 42.

Need support? 

If anything in this article has raised issues for you or if someone you know needs help, please contact: 

  • Lifeline on 13 11 14 
  • 1800RESPECT on 1800 737 732
  • MensLine Australia on 1300 789 978 
  • Suicide Call Back Service on 1300 659 467 
  • Beyond Blue on 1300 22 46 36 
  • Headspace on 1800 650 890
  • Mental Health Line (NSW) on 1800 011 511
  • SANE Australia on 1800 187 263 
  • QLife on 1800 184 527 

Rebecca is an admitted lawyer in New South Wales and Legal Editor. She manages a variety of subscription services, including National Workplace Relations and edited Fair Work Legislation 2019 20. Rebecca holds a Bachelor of Arts (English Literature) (Distinction) and Bachelor of Laws from the University of Wollongong. Prior to joining Thomson Reuters, Rebecca was an employed lawyer at John Lloyd & Co Solicitors & Attorneys.

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