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Why Is There So Much Bullying In The Legal Industry?

Law360—Aebra Coe

Mounting evidence shows the legal industry has a serious problem with bullying and harassment, a reality that some say is caused by structural inequality, while others point to a culture of aggression.

Preliminary results of a survey currently being conducted by the International Bar Association show that of nearly 5,000 legal industry respondents from across the globe, 43 percent report that they have been bullied while at work, including one in two women and one in three men. Meanwhile, 25 percent of all respondents said they had been sexually harassed at work, with that number landing at approximately 33 percent among women who took the survey.

Women were impacted at much higher rates than men both in terms of bullying and sexual harassment. And it appears the behavior is driving victims out of the workplace.

The majority of the time bullying happened — 62 percent — the conduct contributed to the victim leaving or intending to leave their workplace, the preliminary results found. That statistic may explain, at least in part, the departure of women from the legal workforce and lack of representation of women and minorities at the highest levels of law.

“This new research is a stark illustration of the prevalence of bullying and harassment in the legal profession,” said Kieran Pender, one of the researchers conducting the survey for the IBA. “The research indicates that such conduct can contribute to an unhappy working environment and often that leads to people leaving the workplace or the profession.”

The survey draws on the definition of bullying and harassment found in the United Kingdom’s Equality Act, which says that "Harassment is unwanted conduct … which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual."

Some examples of bullying provided by the survey's administrators include implicit or explicit threats, misuse of power or position, constant unproductive criticism, malicious rumors, being blocked from promotion or training opportunities, unfounded comments about job security, and violence, threatened or actual.

So far, the researchers have gathered more than 5,000 responses from those working in the legal industry across the globe, including in Australia, the U.K., Europe, Latin American and North America. The survey is still open and closes Oct. 26.

According to Claire Madill, one of the co-founders of Law Clerks for Workplace Accountability, power dynamics and power structures play a major role in the bullying and harassment that goes on in the legal industry.

“I think a big catalyst of the bullying is that legal employers generally tend to hold a lot of power,” Madill said. “For example, there are far too many law students, law schools and lawyers for the amount of jobs there are available.”

That means, she said, that many people have to accept whatever job they get and may feel like they have to stay there.

There appear to be other structural factors that allow bullying and harassment to flourish in the industry as well.

The preliminary results from the IBA survey found that a lack of reporting is a major problem. In 57 percent of cases where bullying happened, it was not reported because of either the profile or status of the bully, fear of repercussions for the person reporting it, a lack of confidence in protocols or the fact that the incident was endemic to the workplace. Those same reasons were given for a lack of reporting sexual harassment.

And at least some of those fears appear to be founded in the reality of today’s legal workplaces. Those who have responded so far to the IBA’s survey paint a dire picture of legal employers’ responses to reports of bullying and harassment.

When bullying was reported, respondents said that 71 percent of the time the response was insufficient or negligible, 76 percent of the time the perpetrator was not sanctioned and 66 percent of the time the situation was unchanged or exacerbated.

When sexual harassment was reported, survey respondents said that 65 percent of the time the response was insufficient or negligible, 73 percent of the time the perpetrator was not sanctioned and 53 percent of the time the situation was unchanged or made worse.

Madill shared the ways in which she has seen power imbalances play out in the federal judiciary. The prestige and job opportunities that federal clerkships provide to those who hold them mean the judges that hire for those positions hold an inordinate amount of power, she explained.

“This is why people are willing to take a clerkship with a judge who is known to be a harasser; they are willing to suffer a year of harassment or bullying for the sake of having that clerkship on their resume,” she said.

The former clerk described the nature of a clerkship in which a judge who is serving a lifetime appointment serves as the top boss for newly minted lawyers who often operate in a largely isolated work environment.

“This creates an environment where the boss — the judge — wields an enormous amount of power, and the employees have little information about whether what they are experiencing is normal or what to do if they are uncomfortable,” Madill said.

The issue extends beyond the judiciary, though, and into law firms and corporate legal departments, according to the research conducted by the IBA, which polled those working in a wide variety of settings across a number of different countries.
 

As part of its survey of legal professionals around the globe on the topic of bullying and harassment, the International Bar Association continues to seek survey respondents. Those interested in participating can do so here.

In law firms, origination credit systems reward the rainmaker and set up a need for partners and associates to “service” a rainmaker or partner who originates client matters, creating a power imbalance, explained Outten & Golden LLP partner Wendi Lazar.

Lazar is executive editor of a newly updated handbook published by the American Bar Association that offers the legal industry a detailed look at how to prevent and reduce sexual misconduct and bullying.

“Often partners are bullied into accepting the servicing roles at firms rather than fighting for origination credit that will, in the end, help them be promoted and be better compensated," Lazar said.

"This again is a complex system that usually impacts those below on the power grid — women, and men and women of color,” she added.

Lazar says that in addition to power discrepancies at those workplaces, there is often also a culture of aggression in the legal profession that can lead to bullying and harassment.

Even in law schools, she said, first-year law students are often bullied in the Socratic method and brought to tears in the classroom if they don’t say what a professor wants them to in the manner that is demanded.

“As an institution, we value certain male-dominant behaviors — the strongest, often most vocal and most domineering boss with power and personality is valued at the top of the legal food chain,” Lazar said.