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.

Related posts:

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.

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.

Submissions on petition to reverse convictions for consensual homosexual acts close tomorrow

Bert and Ernie

Submissions on a petition in front of the Justice and Electoral Select Committee to reverse past convictions for consensual homosexual acts and issue an official apology to those convicted close tomorrow (Thursday 6 October 2016).

You can submit online here.

My submission:

I support this petition to reverse the convictions of people who were convicted of consensual homosexual acts and for the Government to officially apologise to them.

I strongly disagree with Justice Minister Amy Adams who has said that the process would be a hugely complicated task. It would not be onerous for the Government to set up a process to proactively review conviction files to void convictions for consensual acts which would be legal today.

Implementing the above would work towards restoring the human rights of those whose mana and dignity has been tarnished.

Image credit: See-ming Lee

MOH recommends HPV vaccine for men who have sex with men, but PHARMAC doesn’t fund it

Vaccine vial
Not the HPV vaccine

Update 30 May 2016: PHARMAC is currently consulting on a proposal to widen funding for the HPV vaccine to everyone under the age of 26.

PHARMAC currently funds the human papillomavirus (HPV) vaccine for all girls under 20. The intention is that through ‘herd immunity’, males will be protected too. However, herd immunity does not help males who exclusively have sex with other males (and herd immunity doesn’t kick in for males at all until female vaccination rates are above a certain percentage).

The Ministry of Health’s Immunisation Handbook even recommends the HPV vaccine (and the Hepatitis A vaccine) for men who have sex with men (MSM). MSM are at higher risk for HPV infection, anal cancer and high-grade anal intraepithelial neoplasia. They are more likely to acquire HPV compared to other males. But they’d need to pay around $500 to buy the vaccine’s three doses themselves.

In August 2013, the Pharmacology and Therapeutics Advisory Committee recommended that the HPV vaccine for males aged between 9 and 26 years who self-identify as having sex with other males be listed in the Pharmaceutical Schedule (aka funded) with a high priority.

The application’s status is now ‘ranked’, which PHARMAC describes as “prioritised; PHARMAC has assessed the application and has ranked it against other funding options”. It has had this status since November 2013, well over two years.

It is preferable to vaccinate people at a younger age to reduce the chances of exposure to HPV strains prior to vaccination–the younger people are vaccinated, the stronger the immunogenicity. PHARMAC sitting on this means that for some people the vaccine will be less effective when it is eventually funded than if they received it today.

The Human Rights Act 1993 is meant to protect New Zealanders against this sort of discrimination, but it would be much easier if PHARMAC just did the right thing.

Below: PHARMAC’s response to an Official Information Act request on this topic. The funding of medicines is a numbers game so naturally all mentions of relevant dollar figures have been redacted by the agency.

In the interests of full disclosure, I filed a Human Rights Commission complaint about this issue last year.

In 10 Years Time…

History

on marriage equality
Natasha Leggero: If you say you are against this in 10 years time you’re going to look like the people who didn’t want black people to use their drinking fountains. You’re going to look so stupid.

Steven Price sez:

The wrong side of history

Shane Ardern (N); Kanwaljit Singh Bakshi (N); David Bennett (N); Chester Borrows (N); Simon Bridges (N); Bill English (N); Christopher Finlayson (N); Nathan Guy (N); John Hayes (N); Phil Heatley (N); Brendan Horan (NZF); Colin King (N); Melissa Lee (N); Asenati Lole-Taylor (NZF); Peseta Sam Lotu-Iiga (N); Tim Macindoe (N); Tracey Martin (NZF); Todd McClay (N); Mark Mitchell (N); Alfred Ngaro (N); Damien O’Connor (L); Simon O’Connor (N); Denis O’Rourke (NZF); Winston Peters (NZF); Richard Prosser (NZF); Ross Robertson (L); Eric Roy (N); Tony Ryall (N); Mike Sabin (N); Katrina Shanks (N); Su’a William Sio (L); Nick Smith (N); Barbara Stewart (NZF); Lindsay Tisch (N); Anne Tolley (N); Louise Upston (N); Andrew Williams (NZF); Michael Woodhouse (N); Jian Yang (N); Jonathan Young (N)

How much contact did Anne Tolley have with students when she was the Minister of Education?

Image credit: Phil Manker

“WHY DO I HAVE TO TAKE MY HAT OFF?”

“In Massachusetts many banks agreed that their customers must remove their hats and sunglasses once they crossed a bank’s threshold. Of these branches, only 3% were robbed.” – The Economist

Perhaps the bank version of the “please turn off your digital devices” policy on planes is the no hats (or hoodies, or helmets, or sunglasses) policy.

Mr Delancaster-Swinbank-Slack is annoyed that the staff at his local ANZ branch continually ask him to remove his hat when he visits.

The sign at the door clearly indicates the policy, but Mr Delancaster-Swinbank-Slack is 83 and is no “young thug”, so he chooses to ignore it.

He puts ANZ staff into a difficult position because they can’t apply the policy discriminately to just the people they think look a bit dodge.

He notes that staff “usually relented because of his age and non-menacing appearance”. He puts the other staff working in the branch into an even more difficult position. Say someone else comes into the branch. Maybe they look dodgy, maybe they don’t. They’re also wearing a hat.

How do you explain to them that you’d like them to remove their hat when a couple of metres away Anthony is over there rocking his sports hat? Do you choose to ask the person who just walked in, potentially really offending one of your customers with the insinuation that they look suspect? Or do you not ask, knowing that the large majority of bank robbers cover their face/head in some way?

 This post represents my views, not my employer’s.

The War On Youth: Pak’nSave Responds

Pak'nSave shoppersTheir reply to “Random” Pak’nSave Bag Searches. No comment on women with handbags or what happens if I did have something in my bag that I had bought from another supermarket.

Dear Matt,

I can confirm that our bag policy is applicable regardless of a customer’s age and is simply designed to prevent an ongoing shoplifting issue which we are trying to manage. We have a prominent sign in-store which clearly states that ‘We reserve the right to check all bags and may require you to leave large bags with a staff member while shopping.’

While I do appreciate having your bag checked is an inconvenience, unfortunately due to the level of shoplifting we experience in-store, it is an unavoidable part of how we are forced to do business, we would certainly prefer to not check customer’s bags but sometimes even with cameras and other security measures we are left with no option. I apologise if you felt you were unfairly treated and I hope you will continue to shop at my store.

My staff remain committed to giving our customers the best possible shopping experience, and by endeavouring to keep shoplifting to a minimum we hope we can deliver the lowest everyday prices.

Kind regards,

Steven McDonald
Owner
PAK’nSAVE Riccarton

Image credit: Naomi

The War On Youth: “Random” Pak’nSave Bag Searches

Trolley outside shop

Update: Pak’nSave responds.

An open letter.

Dear People of Pak’nSave Riccarton,

On 15 December I shopped at Riccarton Pak’nSave with a group of other young people.

After purchasing items at a self-checkout directly in front of one of your staff (really, she was right beside me), she requested to search my bag. I had not touched the bag during my visit so this request was not based on any actual evidence that I had attempted to steal something, like from a store detective or a camera.

It was extremely obvious that this was not a random search, as she called it. It was because of my age. Three other people from our group were selected for a “random” search. I wonder how many women with handbags were searched that day? I know my friend that came through the self-checkout after us wasn’t.

I declined the request.

I waited for the rest of our group and left the store. I was followed by a store manager who put his arm touching up against me, and tried to stop me from leaving. I declined again, which I have the right to do, no matter your signage, and walked away.

It’s disgusting to treat your paying customers like this.

Do you consider that bags contain personal possessions? That most people wouldn’t decline your request to search, because it makes them look and feel like a criminal? That searching personal possessions could reveal, say, a private medical condition?

I wonder what the purpose of these “random” searches are. Say I did consent to the search, I had items in my bag that I didn’t buy or steal from Pak’nSave, but that you sell. I didn’t have the receipt. What would happen then? Would you accuse me of stealing those items? Would you call the police on me? If not, why are you searching young people? Scare tactics? That isn’t the definition of a reasonable search.

If it is your policy to target young people or people with backpacks (read: young people), it needs to change. It is discriminatory and wrong.

If you weren’t the only supermarket at Westfield Riccarton, I wouldn’t shop with you again.

Kind regards

Matt Taylor

Image credit: bfick

Update: Here’s Aliza Eveleigh on bag searches (click for larger version): The Star Aliza Eveleigh bag search

Bad Blood

In 2009 the New Zealand Blood Service (NZBS) changed their deferral criteria for donating blood based on a 2008 review. The men who have sex with men (MSM) ban was reduced from 10 years to five years—“You must not give blood for: five years following oral or anal sex with or without a condom with another man (if you are male)”. There will be another review of the criteria in 2013.

Other deferral criteriaBlood donor

About 12% of people who try to donate blood are deferred. The NZBS has a full list of deferral criteria on their website.

A one year deferral is in place for a woman who has had sex with a MSM, and for those who have had sex with a person who carries the hepatitis B or C viruses, or an injecting drug user, a sex worker, a person with haemophilia or related condition, or with a person who has lived in or comes from a country with high HIV prevalence. People who have worked as sex workers only in New Zealand can’t give blood for a year.

People who have worked as sex workers outside of New Zealand or who have lived in a country with a high rate of HIV (including sub Saharan Africa and parts of Asia) can’t give blood for five years.

People who have injected/snorted non-prescription illegal drugs or who have lived in the UK, France or the Republic of Ireland for a total of six months or more between 1980 and 1996, because of possible exposure to Creutzfeld-Jakob disease, are permanently deferred from giving blood.

New Zealand sex workers aren’t considered to be a high HIV risk because: “there have been only 20 women diagnosed with HIV who were known to be sex workers and three to four men who were reported to be infected by a sex worker in New Zealand.”

MSM bans around the world

New Zealand isn’t as strict as other countries. Hong Kong, Singapore, Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Netherlands, Norway, Portugal, Sweden and the UK have a lifetime ban on MSM donating blood. The US, Canada and Switzerland effectively do too, banning any men who have had sex with men after 1977.

Australia and Japan have a one year ban, South Africa has a six month ban, and Spain and Italy ban on behavior rather than the sex of sexual partners. Spain has a 12 month exclusion for anyone who has had more than one sexual partner in the last 12 months. The interpretation of Italy’s exclusion based on risky behavior is unclear and inconsistently applied—some centers still exclude MSM.

Blood safety

“Once a potential donor presents there is a three tier combination approach to safety: a questionnaire on behaviour followed by an interview, tests that are highly sensitive and specific are carried out on the donated blood, and (for manufactured plasma products) the use of physical and/or chemical methods to inactivate infectious agents.”

The HIV concerns that remain even though donated blood is tested relates to the early period following infection where the infection doesn’t show up on tests and relates to the risk that established infections aren’t picked up by testing or that infected blood is identified but fails to be removed from the system. The early “window period” for HIV averages to be about 12 days using Nucleic Acid Testing, which the NZBS tests with. A short deferral period of a year would eliminate the risk of window period infections. Longer deferral periods reduce the risk established infections present.

It’s thought that people with a higher risk of having HIV would also have a higher risk of having an “unknown or untested for infectious [agent]”.

The risk of the test system failing to detect an infection where “the marker is present” is very low because of the features of modern testing equipment used and because NZBS tests for each major virus twice. However “the test system may be unable to detect a rare form of the virus”.

“No transmissions have been documented in New Zealand since routine testing was introduced for these viruses… however… the low levels of risk are achieved by a combination of measures and are not solely due to the effect of blood donation testing.”

Australia’s one year deferral

About a decade ago, Australia dropped to a 12 month deferral for donors who have had male-to-male sex.

“Surprisingly in Australia, with a one-year deferral for MSM, though MSM are still over represented, the prevalence of HIV is only 4 per million donations, less than in New Zealand (11 per million donations). This suggests that there is either greater adherence to deferral criteria in Australia, or a higher rate of clinical HIV testing and therefore fewer undiagnosed infections, or the figures from Australia are incomplete.”

A study in Australia found there was no evidence of a significantly increased risk of transfusion-transmitted HIV subsequent to implementing the one year deferral period for MSM. In the one year deferral data the five MSM with HIV infections would have been excluded had they been honest and provided a complete history.

“We found no evidence that the implementation of the 12-month deferral for male-to-male sex resulted in an increased recipient risk for HIV in Australia. The risk of noncompliance to the revised deferral rather than its duration appears to be the most important modifier of overall risk.”

Harm

Donating blood is a valued social activity and the restriction based on sexual partners is indirectly homophobic which creates social exclusion and adds to stigma on the basis of male-to-male sex. In the US there is a group who have a “HIV prevalence 17 times that of their comparator: black versus white women”. There’s no call for a ban on that group from donating blood. Are we more sensitized to racism than homophobia?

“It does not distinguish between sexual acts… or whether a man has been in a monogamous relationship, but stigmatises any male same sex contact.”

But would a one year ban, like Australia’s, be any less discriminatory? There is an ethical requirement to protect the recipients of blood because they’ve been thrown into their situation. For indirect discrimination to be truly removed, there would have to be no ban on MSM. That’s unlikely until medical advances make it safe for the recipients of donated blood.

Image credit: Dave Herholz