Sasha Borissenko: The new rules designed to curb bad behaviour by lawyers

OPINION:

New reporting requirements came into force last week for lawyers and law practices as a result of changes of amendments to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) rules 2008.

The amendments arose from recommendations of a report by a five-person independent working group established by the Law Society and chaired by Dame Silvia Cartwright. The working group was established in 2018 and reported in December 2018.

The report came less than a year after the Russell McVeagh revelations made headlines. It was a watershed moment insofar as an outpouring of shared experiences followed. The Law Society 2018 Legal Workplace Environment Survey showed one-third of female lawyers had been sexually harassed during their working life. More than half of all lawyers had been bullied at some time.

Of the 13,662 lawyers who were invited to participate, 3516 completed the survey. Just 12 per cent of those who had been sexually harassed reported or made a complaint. Of the 12 per cent who reported the conduct, 68 per cent reported it to management. Five per cent reported it to an external lawyer or service, 5 per cent reported it to the Law Society, and 4 per cent reported it to the police.

In the report, Cartwright said the Law Society examined its regulatory history and processes, and rapidly came to the conclusion that the absence of complaints was due largely to the fact that its procedures were inadequate to deal with complaints of sexual violence and harassment, bullying, and discrimination.

“Disciplinary procedures designed to protect consumers of legal services simply could not accommodate such sensitive complaints,” she said. “It is to the profession’s shame that it has done little to address these concerns until now.”

Reporting guidelines

Now, let’s get back to the changes to the rules. If lawyers have reasonable grounds to suspect misconduct has occurred, they have a duty to report it (confidentially) to the Law Society at the earliest opportunity. If they don’t, they may be in breach of the rules and be subject to disciplinary action.

Previously, the rules said lawyers had a duty to report to the Law Society if they had reasonable grounds to suspect another lawyer had been guilty of misconduct. The latter caused confusion as people thought they needed to have sufficient evidence before making a report. Proof of guilt is not part of the threshold test.

Misconduct includes conduct that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable pursuant to section seven of the Lawyers and Conveyancers Act.

Misconduct can also include conduct that indicates a lawyer isn’t fit to practice. This could include criminal convictions, or addictive or prohibited behaviour that could impair a lawyer’s ability to carry out legal services.

If a lawyer reasonably suspects the conduct is unsatisfactory – namely conduct of a lawyer or firm that occurs when they’re providing services, and the conduct falls short of the “standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer” – lawyers have discretion to report it to the Law Society. Unsatisfactory conduct can also include conduct that’s considered unprofessional.

Exceptions to having a duty to report

But there are exceptions. Lawyers don’t need to make a report if it was disclosed to them in the course of providing confidential advice, guidance, or support to another lawyer, unless the conduct involves a crime or fraud, or it poses a serious risk to the health and safety of a person.

Otherwise, they don’t have to make a report if it applies to a lawyer who is a victim of the suspected misconduct, or when they reasonably believe the disclosure would pose a risk to the health (including mental health) or safety of a victim.

Lawyers can make a report anonymously, and confidentiality is otherwise protected subject to exceptions around criminality and health and safety. Interestingly, settlements or non-disclosure agreements between firms and employees do not circumvent the regulatory requirements to report a person making a report, or complaint (which is an entirely different process) to the Law Society.

Law firms have to do better

While lawyers have always been prohibited from engaging in behaviour that brings the profession into disrepute, the new rules have specifically defined bullying, harassment, discrimination, and violence.

Bullying means “repeated and unreasonable behaviour directed towards a person or people that is likely to lead to physical or psychological harm”. Harassment means intimidating, threatening or degrading behaviour directed towards a person or group that’s likely to have a harmful effect on the recipient. This could be repeated behaviour or a single incident.

Racial harassment is defined as behaviour that expresses hostility, contempt, or ridicule towards a person on the ground of race, ethnicity, or national origin, and is likely to be unwelcome or offensive to that person (whether directly, or indirectly).

Sexual harassment means subjecting another person to unreasonable behaviour of a sexual nature that’s likely to be unwelcome or offensive to that person (whether directly, or indirectly); or a request of a sexual nature made by a person to another, that contains an implied or overt promise of preferential treatment, or a threat (implied or over) of detrimental treatment.

Notably, in all of these definitions actual harm doesn’t need to occur, but rather the focus is on the conduct of the lawyer in question.

On that basis, law firms, barristers, and sole practitioners are now required to have policies and systems in place to prevent employees from the effects of said unacceptable conduct.

The infrastructure must include a clear and simple reporting process; and confidentiality and privacy; and there must be a “designated lawyer”. Said “designated lawyer” has to annually report to the Law Society, and notify the Law Society within 14 days if there’s a written warning/dismissal due to prohibited behaviour such as bullying, discrimination, harassment, theft, or violence; or a person leaves the practice within 12 months of them being advised that they were being investigated.

According to a brief issued by the Law Society on the rule changes: “[designated lawyers were] introduced to ensure that prohibited behaviour by lawyers is reported to the Law Society. This is designed to avoid situations where misconduct may trigger internal disciplinary processes, but is not reported to the Law Society”.

What does this all mean? Sexual violence and discrimination has been in the spotlight for a number of years particularly thanks to the advent of #MeToo and #BlackLivesMatter, but bullying within the profession – perhaps because it is so rife and hard to define – has been sidelined. In a sector that’s heavy in hierarchy, high in pressure, and great in terms of hours, perhaps now it will get the attention it deserves.

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