The New Zealand Law Society and the Super-injunction

High Court of New Zealand Wellington court papers - Matt Taylor

The New Zealand Law Society has had a bad run lately. They claimed they were surprised that sexual harassment at scale was occurring in law firms and was underreported to them; they were unable to say what the public needs to hear – that the ‘Russell McVeagh lawyers’ are under investigation; and their National Standards Committee decided to expend time and resources investigating a family violence lawyer’s legitimate criticism of a judge.

Adding to that list, four months ago the Law Society obtained a “super-injunction”, a special type of gag order, against me. On Thursday that order was modified by the High Court, which means I can disclose its existence for the first time.

Injunctions and super-injunctions

An injunction is a court order. Usually they prohibit someone from doing something, like disclosing information. A super-injunction is an injunction about the injunction. In other words, a court order prohibiting disclosing that an injunction or the related court proceedings even exist. They’re rare. In the United Kingdom, the Guardian is aware of and able to report on only 40 cases. And they’re rarer here, in humble, less litigious Aotearoa New Zealand.

Super-injunctions challenge the principle of open justice; that cases should be determined in open, not secret courts, to prevent overreach of judicial power. Super-injunctions are uncommon, they are onerous, and they are costly to apply for and to defend against. The group of people who a respondent can safely discuss a super-injunction with is tiny: their lawyer.

Super-injunctions have been the subject of considerable controversy in the UK. Lord Neuberger’s committee published a 112 page report in 2011 that was highly critical of super and other similar injunctions. The most controversial super-injunctions usually involve a powerful person or organisation trying to suppress unfavourable but true information.

The Law Society’s super-injunction

The super-injunction was served on me on 5 April 2018, but had been granted several days earlier by Justice Churchman at the Wellington High Court, without notice and under urgency.

The injunction prohibited the publication or disclosure of information accidentally emailed to me by NZLS on 21 March. The contents of that email is still subject to suppression, except for the fact that it “attached a complaint made to the plaintiff [NZLS] by a legal practitioner about his own conduct; and such conduct was alleged to amount to sexual harassment or bullying”.

The super part of the injunction was that the fact that the High Court proceedings, New Zealand Law Society v Taylor, even existed could not be published, and that the Court file could not be searched. One effect of this has been that for several weeks NZLS has been able to avoid public scrutiny of their mistake of emailing confidential information to the wrong person.

The court was persuaded by the lukewarm argument that I have “a blog (in addition to being active on other social media such as Twitter)”, and because I had not replied to emails, a text message, and voicemail from the Law Society (I was seeking legal advice). In fact, the night before the injunction was granted I sent an email to NZLS’ barrister and a senior staff member. The injunction was stated to be interim, but the case had no next appearance timetabled, so it was effectively permanent.

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How did the Law Society get here?

The Law Society is a surprising applicant for a super-injunction. Not a celebrity trying to cover up an affair or someone trying to neutralise a blackmail attempt, they are the regulatory body responsible for policing the conduct of New Zealand lawyers. The Law Society submits on legislation before Select Committees calling out overreach. They even have their own Rule Of Law Committee. And ironically, during the time the super-injunction was in force, in response to criticism of their Committee’s investigation of Catriona MacLennan, they publicly denied that they suppress free speech. But they, via a partner at top-tier law firm Meredith Connell, applied for a super-injunction. Their application was urgent without notice to any other party. That means I had no knowledge that the proceedings had been commenced against me, and no one provided the judge with arguments against the super-injunction being granted before the decision was made.

NZLS continued to escalate court proceedings while I was corresponding with their lawyers, filing a statement of claim in the proceedings in response to me declining an invitation to meet with the Law Society’s president. They did this even though I had told them I had no intention of publishing the information; had deleted the information; and had been extremely careful not to disclose identifying details, even to my own lawyers. By the time we settled proceedings they had involved a barrister, a partner, a solicitor, a Queen’s Counsel, and a junior barrister.

In contrast to not being prepared to pay the lawyers who volunteer on their “workplace culture” group, the NZLS has spent several thousand dollars on this case, including reimbursing my legal costs as part of our settlement.

Secrecy

Lawyers subject to sexual misconduct are afraid of speaking out, fearing their careers, more likely to leave a firm than be the “squeaky wheel”. Perhaps Human Resources find out about an “incident”, but they’re conflicted as their staff are employed by the partnership of which the harasser is commonly a member of. The wider partnership might find out too, but they’re conflicted as well if their business partner is the person at the centre of serious allegations, more content to accept assurances that “it won’t happen again”. Rarely, it seems, is that the case.

If a complaint makes it to the Law Society, although many lawyers seem intent on ignoring their compulsory reporting obligations under their rules, that is secret too. There is no visibility that complaints are even being made or investigated. There is no default opportunity for other victims to become aware of a complaint or investigation and indicate that a practitioner is a serial abuser. The Law Society appears to be fine with this secrecy, confident that it was Parliament’s intention. They don’t think anything substantive needs to change.

Even for a complaint that ends up being upheld, the only time proceedings are public by default is if the matter is so serious that it is referred to the Disciplinary Tribunal by a Standards Committee. If a Standards Committee finds unsatisfactory conduct they can order the publication of the practitioner’s name, but this is after the interests of wide group of people are considered, and publication is signed off by the NZLS board. The interests considered include those of: the complainant; clients of the practitioner; relatives of the practitioner; partners, employees and associates of the practitioner; and the practitioner.

By 30 June all lawyers in New Zealand intending to continue practising law needed to have renewed their practising certificate. It’s an annual task, and probably one most lawyers do on autopilot, declaring they are of good enough character to remain a lawyer.

Several lawyers who are facing credible allegations of sexual harassment still retain their practising certificates.

Will anything change in the legal profession? Sunlight is said to be the best of disinfectants, but at the moment it seems the Law Society is content with sexual misconduct reported to them staying behind closed doors.

Five Things Wrong With The Russell McVeagh Report and the Law Society Complaint Process

Wellington, New Zealand - Supreme Court building - inside the court room by Buffy May

This post refers to sexual harassment and bullying. Need help? In New Zealand, you can call Lifeline on 0800 543 354, Youthline on 0800 37 66 33 or find out about other crisis services here. Rape Prevention Education has a list of sexual assault support centers on their website. The Human Rights Commission provides confidential advice and support, and you can complain about sexual harassment to them.

Dame Margaret Bazley’s independent review of Russell McVeagh’s response to sexual misconduct allegations, embedded below, was published yesterday. It’s highly critical of Russell McVeagh’s culture and policies that led to sexual misconduct against employees and the poor handling of subsequent complaints.

Similar events that occurred at Russell McVeagh have also occurred at other New Zealand law firms without attracting media attention, and there are several recommendations in the Russell McVeagh report and aspects of the Law Society’s complaint processes that could be improved.

 

Other New Zealand law firms

The series of alleged events disclosed in the Russell McVeagh report are similar to those that have occurred in multiple law firms around New Zealand.

A senior lawyer, often a partner, sexually harasses a junior employee. Often the sexual harassment happens outside of the office, but in a work-related context at a bar, hotel, or staff member’s home. It’s unlikely sexual harassment is the only problematic conduct occurring at the firm, or that this is the first incident of sexual harassment the senior lawyer has been involved in.

At this stage, often prompt and effective action could be taken by the law firm to resolve the issue to the junior employee’s satisfaction, however it rarely occurs. Although the firm often has human resources staff, they are not equipped to deal with complaints of sexual harassment.

After some time, the offending lawyer, who is often respected in the profession, is quietly exited from the firm, often retaining their practising certificate and going on to practise as a barrister sole. A formal investigation is rarely conducted by the firm. In any case the firm is unlikely to have the resources, and it’s unlikely to be appropriate, for the firm to conduct the investigation itself. If a public statement is made by the firm it doesn’t mention that the lawyer exited “under a cloud”.

By this time the junior employee has often resigned from the firm. If they have taken action under employment law and signed a settlement agreement they are often bound by a confidentiality clause.

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The report’s recommendations

Dame Margaret Bazley’s report is overall quite good, but the recommendations fall short in at least two areas.
  1. There is no recommendation regarding each member of the partnership’s ethical and legal obligation to report suspected misconduct to the Law Society. Even if the lawyer allegations have been made against leaves the firm, if a complaint or disclosure to the Law Society is not made there is no barrier to the lawyer obtaining another legal job without having to address their conduct.
  2. The report assumes that raising a family and having a career is an issue that is only relevant to, and that should be addressed by women.

Law Society’s processes

The report also illustrates shortcomings with the Law Society’s complaint processes, disclosing publicly for the first time that there are complaints before the Law Society in relation to the employment reference provided by Russell McVeagh, and Russell McVeagh lawyers’ failure to make a report to the Law Society.
It’s time for an independent review of the Law Society to address issues with the complaints process, for example:
  1. The Law Society doesn’t accept complaints about conduct without the complainant knowing the names of the practitioner allegations have been made against, even if the allegations themselves are public. Even though the complaint regulations state that the Law Society should provide reasonable assistance, the Law Society’s position is that this does not extend to a preliminary investigation to request information, for example the lawyer’s name, from the law firm involved.
  2. Complaints, when they are made, are shrouded by intense secrecy. Other potential complainants have no indication that a person’s conduct is being investigated, even though being part of a group of complainants may make them more comfortable to come forward. The Russell McVeagh report highlighted this when the group of summer clerks “told each other about their experiences with the same partner” and felt comfortable making a disclosure as a group.
  3. The Law Society has a conflict of interest in deciding whether to publish details about upheld complaints.

Image credit: Buffy May, Wellington Supreme Court building, CC BY-SA 2.0.

EQC settlement agreements suppress complaints and critical public comment

Christchurch earthquake shop window cracked by Matt Taylor
A Christchurch shop window. Matt Taylor

The Earthquake Commission is using contracts containing broad confidentiality clauses in an attempt to avoid future legal proceedings, complaints, and critical public comment from disgruntled homeowners, a document publicly available on the Arbitrators’ and Mediators’ Institute of New Zealand’s EQC Mediation Service website shows.

The pro forma agreement is used when disputes heard by the EQC Mediation Service are settled, however similar clauses are included in settlement agreements presented for claimants to sign when they are not represented by a lawyer and have not elected to mediate their dispute.

The clauses include an agreement that the claimant will not “commence any proceedings in New Zealand or elsewhere which in any way arise out of or relate to the Dispute, against EQC or any of its related persons, servants, employees or agents or against any other person”.

Claimants agree to “not make any complaint in relation to the Dispute to any professional, governmental or other body about the conduct of EQC or any of its related persons, servants, employees or agents or against any other person and to withdraw any complaint already made”.

EQC has been the subject of hundreds of complaints to the Office of the Ombudsman and the Privacy Commissioner. Experts EQC has engaged have also been the subject of complaints. Labour’s Minister Responsible for the Earthquake Commission, Megan Woods, has said she wants “a royal commission of inquiry into defective earthquake repairs”. Overseas royal commissions have had to address the issue of obtaining evidence which would otherwise be shielded by confidentiality agreements.

An additional clause prohibits claimants from making “any public comment critical of EQC or any of its related persons, servants, employees or agents or against any other person in respect of any matters which in any way arise out of or relate to the Dispute”. This clause would prevent disgruntled homeowners from talking about their experiences on TV, at a public meeting, or on Facebook.

“No further proceedings” clauses may be appropriate when parties have received legal advice, but clauses relating to complaints and public comment seem like bullying behaviour from a government agency trying to hide their mistakes.

The full document is embedded below.

Questions for the Law Society about sexual harassment in law firms

Wellington, New Zealand - Supreme Court building - inside the court room by Buffy May

This post refers to sexual harassment and bullying. Need help? In New Zealand, you can call Lifeline on 0800 543 354, Youthline on 0800 37 66 33 or find out about other crisis services here. Rape Prevention Education has a list of sexual assault support centers on their website. The Human Rights Commission provides confidential advice and support, and you can complain about sexual harassment to them.

It’s possible the last time the legal profession was under an intense spotlight was in the 1990s due to a string of fraud cases. The most memorable involved two partners of law firm Renshaw Edwards who were both, separately and unknown to each other, stealing money from the firm’s clients. The New Zealand Law Society had a fund to reimburse theft by lawyers but not on that scale. So the Law Society intervened and raised a levy from around 2,800 principals of law firms, mainly law firm partners, of $10,000 each. This contribution reflected and reminded senior lawyers of their obligation to conduct themselves with integrity, ensure their colleagues act with integrity, and to self-regulate. Recent stories of sexual misconduct at law firms gives the impression that those lessons, and integrity in general, have been left at the law firm door.

The lessons that need to be relearned now are similar, although obviously the impact on the people involved is wildly different between fraud and sexual misconduct. Graeme Hunt, in a book about fraud in New Zealand wrote that at first there was a lack of understanding about fraud, difficulty of obtaining sufficient evidence to lead to a conviction, and that “many companies were unwilling to do more than sack offending employees”. Hunt “argued that ‘sheltered’ professions (medicine and law in particular) are less likely to identify wrongdoing among their members than those professions that have to compete fiercely in the marketplace.” NBR’s Jock Anderson similarly identified the lack of fraud prosecutions before the 1970s as due to the “closed nature of the legal profession rather than the [good] behaviour of practitioners” saying matters “were kept in-house and charges were very rarely put”. But if the lessons are the same, there’s hope. Anderson says things “changed in the 1970s. It was a more open period for investigative journalism and for people to challenge authority”.

The Law Society and sexual misconduct

The reports by Newsroom of incidents at Russell McVeagh weren’t the first time sexual harassment in law firms had been recently brought to the Law Society’s attention. In November 2017 a lawyer wrote an anonymous article for LawTalk, the New Zealand Law Society’s magazine, describing two incidents of sexual harassment she experienced as a young lawyer. The Law Society responded with a statement titled “Law Society targets sexual harassment in the workplace” but it was empty of any concrete actions being taken to target sexual harassment, and ended stating “as a profession we must also look at ourselves and agree that any harassment in our workplaces is absolutely unacceptable”.

The latest issue of LawTalk contained a number of articles about sexual harassment in the legal profession. Tim Jones, Auckland Vice-President of the New Zealand Law Society, wrote in the issue’s ‘from the Law Society’ editorial that the “Society receives very few complaints of harassment in the workplace”. Notably missing from the list of conduct the New Zealand Lawyers & Conveyancers Disciplinary Tribunal has typically found to be misconduct is “discrimination, sexual harassment and assault”.

The issue of LawTalk also notably publicly names John Revans Eichelbaum for “failing to treat another lawyer [opposing counsel] with courtesy and respect” by, among other things, asking her to bend over. Former lawyer Olivia Wensley told the NZ Herald that she has knowledge of the complaint and the report published by the Law Society had been “sanitised”.

Sexual misconduct in law firms

Recent media and online reports have confirmed that serious sexual harassment (including harassment involving physical contact), bullying of employees and colleagues, and alcohol abuse is occurring in law firms across the country and remains underreported. This should be the subject of deep reflection and action by all law firms.

In many cases the law firm partners became aware of the conduct, but failed to protect their employees. There’s a hesitation to report misconduct of fellow business partners to the Law Society, in spite of their legal and ethical obligations as lawyers to do so. When faced with the prospect of protecting a partner who might be earning the firm $1 million of fees annually and protecting a solicitor who might be earning the firm $200,000 of fees annually the partner is often shielded from meaningful consequences for their actions. Sometimes human resources staff are aware of the conduct, but they are conflicted working for the partnership and managing a partner’s misconduct. Often there is a severe gender imbalance in these partnerships.

There is sometimes crossover between law firms this type of conduct occurs in and firms nominated for “Employer of Choice” awards, which raises the question of what policies and procedures should be in place and what culture should exist for a law firm to be nominated as a “good employer”.

Partners that eventually leave firms because of this sort of conduct often go on to work at other firms, perhaps due to inadequate reference information being sought or provided, or as independent barristers in New Zealand.

What’s the price of silence?

Complainants who leave the firm and pursue a claim under employment or human rights law often have their claims settled, with settlement amounts ranging from $25,000 to $100,000, including costs. Those agreements are generally subject to strict confidentiality clauses that largely protect the law firm and person or people accused of sexual misconduct, even explicitly prohibiting contact with the media and including prewritten media statements to give if the former employee is approached for comment.

The Law Society’s (lack of) response

Last Wednesday I emailed the Law Society several written questions about their approach to sexual and other harassment. They have not responded to those questions, although they had previously instructed a lawyer to send me a warning letter.

Those questions, in an edited form, are listed below.

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Questions for the Law Society

Law Society training on sexual misconduct and bullying

1. Have the staff/tribunal/committee members involved in considering sexual misconduct complaints received any special training? If not, why not?

2. Does the Law Society collect statistics on sexual misconduct and workplace bullying complaints? If not, why not?

3. Does the Law Society survey the profession on sexual misconduct and workplace bullying? If not, why not? [The Law Society wrote in their latest issue of LawTalk that they are preparing a national survey on the workplace culture of the New Zealand legal profession. Will that survey be statistically robust?]

Help for practitioners

4. Does the Law Society assist practitioners to access professional mental health support and advice in relation to their wellbeing, alcohol use, inappropriate behaviours (for example sexual harassment and bullying), and when they are facing serious Law Society complaints? If not, why not?

5. What support does the Law Society provide to law firm employees, especially junior practitioners, who are being bullied including being turned down for promotion because they challenge an unsafe working environment?

Criminal conduct

6. Is conduct that could be considered as criminal conduct referred to the Police for investigation when it comes to the Law Society’s attention? If not, why not?

Harm reduction

7. If a practitioner has employees and is accused of serious sexual misconduct or bullying, does the Law Society consider suspending that practitioner pending the completion of their investigation?

8. How often does the Law Society use supervision and law firm management professional development to address misconduct like this?

9. What is the Law Society doing to stop predatory behaviours (often from partners or senior employees) at the source, for example compulsory programmes on appropriate relationships and conduct, rather than placing the onus on employees to report or otherwise manage other people’s misconduct?

Other employees

9. Are other employees involved in conduct complained about offered appropriate support (for example access to Employee Assistance Programme-type support and independent legal advice, and are they given the opportunity to engage in the Law Society complaints process? If not, why not?

10. Does the Law Society look at the whole firm when addressing complaints, including whether human resources staff and partners have appropriate training and direction, especially to deal with the misconduct of a partner?

11. Will the Law Society, of its own motion, pursue practitioners, including partners, who know of but fail to report matters constituting misconduct to the Law Society?

Career and family

12. What is the Law Society doing to support lawyers wanting to have a career and raise children?

Confidentiality clauses in settlement agreements

13. Does the Law Society support the inclusion of confidentiality clauses for the benefit of the law firm into law firm employees’ settlement agreements when the settlement relates to sexual harassment and/or assault by practitioners?

14. Are the use of these clauses for the benefit of the law firm appropriate conduct from the partnership, especially when a practitioner is the perpetrator?

Stopping misconduct

15. What does the Law Society do to prevent similar conduct from recurring when addressing consequences for practitioners, for example publication of names or completion of sexual misconduct programmes?

[On 29 March 2018, a day after these questions were sent, the Law Society published details of an upheld complaint regarding sexual harassment of opposing counsel.]

16. Does the Law Society monitor law firms and practitioners involved in complaints to ensure action is taken to prevent misconduct occurring again?

Image credit: Buffy May, Wellington Supreme Court building, CC BY-SA 2.0.