The Wellness Docket - Addressing Bullying and Harassment in Legal Workplaces

*Erin H. Durant

Over a year ago, lawyer mental health advocate Beth Beattie wrote a opinion piece for the Canadian Lawyer publication titled “Mental Health and Civility in the Legal Profession: The Elephant in the Room.” She started the article with a call to arms for the profession to pay more attention to the impacts that our own work environments play in contributing to the mental health crisis that plagues our profession. She wrote: “Incivility in the legal profession has gotten worse in recent years. Why? There is an elephant in the room that is not being adequately addressed – the pervasive nature of poor mental health. The discussion around incivility has primarily centred around external players – opposing counsel, the judiciary and clients. It is time to focus on protecting and promoting mental health within our offices.” She also calls on all of us to do something that many legal workplaces have avoided for a long time: dealing with the bully in the office.

Although Beth’s article was written as a call to action, I have personally not witnessed much action. I get a lot of messages from lawyers who are going through a hard time. In recent months the conversations with those lawyers have largely dealt with stressors related to the lawyer’s own work environment. In several recent situations, the source of the lawyers’ stress has been how they are treated by a colleague who is often a manager, boss, law firm owner or partner.  I find those conversations very difficult and the advice that I give to lawyers dealing with it is essentially: a) accept that the person you work with is difficult and that you will need to manage their behaviour as best as possible, b) make efforts within the firm to challenge the behaviour in hopes of a change, or c)  leave for another work environment. In my experience, most people choose to accept the behaviour and fortify themselves against the inevitable outbursts or they quit. Very few individual lawyers who are struggling in these circumstances feel up to confronting the office bully or harasser as they fear it will only make the situation worse or that the workplace would not do anything to address the conduct (after all, for some people, the conduct has been an ongoing pattern for decades).

This culture needs to change. I have a few thoughts from my experience working on challenges in a different industry that also has significant power imbalances in the workplace: the sport world.

As some may know, Canada just finished an inquiry into the state of amateur sport called the Future of Sport in Canada Commission. That Commission arose due to various scandals in sport over the past several years. Many of those incidents arose due to sports organizations being aware that certain individuals were behaving in inappropriate ways, but the behaviour was not adequately or transparently addressed. The wrong-doers were often powerful people in the sport such as an accomplished coach, trainer, or owner/operator of a popular and successful sports club. Athletes and their parents often refused to report the conduct out of fear of reprisal or being removed from the program, which impacts both the athlete’s goals in the sport as well as their social circle.  People that did raise concerns were ignored, removed from the team or was provided with fewer opportunities after the concern was raised. As a result, bad actors were able to cause quite a bit of harm over a long period of time. I have seen similar dynamics play out in other environments where there is a significant difference in the power dynamic between individuals including at adjudicative bodies such as tribunals and courts, the offices of other types of professionals and within all kinds of legal work environments.

The practice of law is not an easy way to make a living. We are under a lot of external pressure from clients, courts, opposing parties, deadlines, regulatory requirements, and making enough money (or, for in-house counsel,  saving enough money) to meet  financial goals. Over the years I have come to believe that having a supportive and healthy work environment is integral for maintaining good mental health while practicing law. Our workplaces should be there to help pick us up when the practice of law has inevitably beaten us down. Our workplaces should not be kicking us in the ribs when we are already on the ground. 

So, what is a legal workplace to do with the bully or harasser? It starts with having policies that outline the standards of expected behaviour in the workplace and a process for handling concerns that are raised. Most provinces have some legislation that mandates workplaces to have policies that address things like harassment, bullying, violence, sexual harassment and harassment in the workplace. Most firms prepared that document once when the legislation first came into force and promptly forgot about it. I suggest that you start by looking at that document to make sure it contains a process that those experiencing problems will actually trust to use. 

What should these policies contain? The applicable legislation in each province will have some bare minimum requirements. The added factor that must be considered in law firms is the power dynamics at play and the need for the less powerful employee to feel like they have a proper mechanism to raise concerns that will be dealt with in a fair manner free from influence of the powerful lawyer. From my experience, most law firms deal with these complaints very quietly and internally. Often the complaint is handled by another lawyer at the firm, and they may or may not have the training required to do so. For example, I am aware of one complaint that was made regarding sexual harassment. The process that was used was that one male partner spoke informally with the various people involved, took no notes, and decided that sensitivity training was required. The event was not documented, no report was provided to the parties and, shockingly, the behaviour did not stop. The impacted lawyer left the firm.

The sport world became such a mess that independent bodies were set up to receive complaints, investigate them and make final determinations about discipline. While complaints to the applicable law society or their harassment officer may assist, I have found that only the most serious of situations get adequately handled through law society disciplinary proceedings and the ones that do can take a very long time to work their way through the system.

The best processes that I have seen in professional workplaces are ones that provide for either an independent way to report misconduct, similar to whistleblower options which exist in other industries where people have expressed fear of reporting misconduct within the business. The complaints go directly to an independent individual (often a trusted contractor of the firm)  who then is responsible for managing the complaint process from start to finish, including hiring any required external investigator and providing the final factual record to management.  I expect most law firms would find such a process terrifying and are not ready to give up control over such a process. If that is the case, you need to identify somebody within your workplace who will be trained in handling and managing workplace complaints and arm them with a policy that allows them to do their work without interference from others.

Let’s all use some downtime this summer to make sure our own workplaces have proper policies, procedures and training to ensure that potential victims of bullying and harassment have someplace to turn other than to turn and walk out the door.

*Erin Durant is the founder of Durant Barristers a litigation, investigation and sport law firm. She is also the author of “It Burned Me All Down” which is a book about her experience with mental illness as a practicing lawyer. The book also makes recommendations for legal workplaces to improve their work environments. She also has experience representing lawyers in both malpractice and disciplinary hearings. She can be reached at edurant@durantbarristers.com.