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  • Sexual harassment and bullying in the workplace are grossly under-reported in the legal profession.
  • Anyone can make a complaint or an informal report to the Office of the Legal Services Commissioner whether as a victim or a bystander/witness.
  • The efforts of everyone involved the legal profession will need to be harnessed to bring about the cultural change required.

Momentum has been building since the rise of the #MeToo movement in the US film industry on the subject of sexual harassment in the workplace. The legal industry is clearly not immune from this affliction. In 2018, news broke in New Zealand about allegations of sexual harassment in one of its most prestigious law firms, Russell McVeagh. Even before this, in Australia, the Law Council’s National Attrition and Re-engagement Study (‘NARS’) Report highlighted the problem of sexual harassment in the workplace. Just over a year ago, the International Bar Association published its report, Us too? Bullying and Sexual Harassment in the Legal Profession. It is fair to say the statistics for Australia were not good. Then, of course, this year Sex Discrimination Commissioner Kate Jenkins released her report Respect@work: Sexual Harassment National Inquiry Report (2020) which, while not solely focussed on the legal profession, again highlighted the scale of the problem.

Now, in recent months, we have seen the shocking and confronting headlines regarding former High Court Judge Dyson Heydon QC. With all this in mind, NSW Legal Services Commissioner John McKenzie shares his thoughts on the situation and what his office (‘the OLSC’), as co-regulator of the legal profession in NSW, is doing to address this challenging issue.

Given recent developments, what role can the OLSC play in deterring this type of behaviour?

Recent headlines have shone a light on a very dark corner of the legal profession. Obviously, I cannot comment on individual matters unless and until disciplinary action has been taken or disciplinary proceedings have been commenced. However, I strongly believe that everyone involved in legal services, whether as clients or employees, is entitled to an environment free from sexual harassment, discrimination, workplace bullying or other inappropriate personal conduct.

Rule 42 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 and r 123 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (the ‘Conduct Rules’) prohibit conduct that constitutes discrimination, sexual harassment or workplace bullying. At the OLSC, we are committed to the elimination of such conduct from the legal profession. Everyone has the right to feel safe at work and to complain about unsafe working environments. As the independent entity that regulates the legal profession in NSW, the OSLC can enforce compliance with the Conduct Rules of both Solicitors and Barristers.

My guiding principle in these matters is to avoid causing further harm to those who come forward. Unless witnesses give their informed consent to appear on the public record, I will not commence disciplinary proceedings which are based on their evidence. The OLSC is working towards providing additional support for those who suffer or witness such harassment so that in time more people will feel empowered to go on the record with their allegations. In the meantime, the OLSC is working with the legal professional bodies to address the cultural problem at the workplace level, in law practices and chambers to reduce and ideally eliminate this unlawful behaviour.

Are there obstacles to the OLSC ensuring compliance with the relevant Conduct Rules?

A point that is consistently raised in any work environment, but particularly the legal profession, is the fact that this abhorrent behaviour is grossly under reported.

I encourage anyone who has been subjected to, has witnessed or has knowledge of discrimination, sexual harassment or workplace bullying by someone in a law practice or barristers’ chambers to notify the OLSC so that we can take appropriate action.

Who can make a report to the OLSC?

Anyone can notify the OLSC by making a formal complaint or by making an informal report. I particularly stress the importance of bystander witnesses to such behaviour, as well as the targeted person, to make reports. I have a highly dedicated and specially trained Personal Conduct Team to assist those who wish to make a formal complaint or informal report about inappropriate personal conduct.

What is the difference between informal reporting and making a complaint?

The OLSC has the power to investigate formal complaints about inappropriate personal conduct under the Legal Profession Uniform Law 2014 (NSW) (‘Uniform Law’). Formal complaints may result in disciplinary action being taken against the person who engaged in the inappropriate personal conduct. However, the Uniform Law does not allow formal complaints to be made anonymously.

I recognise that those who experience, witness or have knowledge of inappropriate personal conduct may not be in a position to disclose their identity or make a formal complaint. Informal reporting allows anyone to disclose their experience or knowledge of inappropriate personal conduct to us confidentially and anonymously.

Making an informal report does not prevent a person from making a formal complaint at a later time.

What are the possible outcomes of an informal report?

The information disclosed in informal reports may alert the OLSC to inappropriate personal conduct occurring in law practices and barristers’ chambers. Beyond individual lawyers who engage in inappropriate personal conduct, it is my view that law practices and barristers who practice together from chambers have an obligation to prevent a culture of workplace harassment, bullying or other inappropriate personal conduct. This may include preventing inappropriate conduct by persons who are not lawyers.

If I consider there are reasonable grounds to believe that a law practice or barristers’ chambers is failing to address a culture of harassment, bullying or other inappropriate personal conduct, I can consider conducting an audit of a law practice and issue management system directions to ensure that proper policies and processes are in place to discourage harassing, bullying or other inappropriate personal conduct and to encourage early reporting.

While the OLSC does not have authority to audit barristers’ chambers, I aim to work proactively with clerks and Heads of Chambers to assist in developing and reviewing appropriate policies and procedures to address harassment, bullying and other inappropriate behaviour.

How can someone make an informal report to the OLSC?

We are still working on an informal reporting platform that provides online access to make informal reports at a time and place convenient to all. In the meantime you can make an informal report over the telephone by contacting a member of the Personal Conduct Team on (02) 9377 1849 between 9am and 5pm on weekdays or by using one of the Notification forms available on the OLSC’s website:

Is an informal report confidential?

Yes, informal reports are confidential. However, in some circumstances the OLSC may be required to provide information to other state and Commonwealth agencies, or as otherwise required by legislation, a Court or Tribunal. For example, we have a duty to report serious criminal or other offences to Police or other authorities where there are reasonable grounds. However, I am determined to do everything in my power to safeguard the confidentiality of any information provided.

What if the person who engaged in inappropriate personal conduct was not a lawyer?

You can still make an informal report about that person’s inappropriate personal conduct. My view is that law practices and barristers’ chambers have an obligation to prevent a culture of inappropriate personal conduct. This may include preventing inappropriate conduct by persons who are not lawyers. Any information provided to the OLSC will help us improve the culture in the legal profession.

What if the person has signed a non-disclosure agreement?

My view is that a non-disclosure agreement cannot displace an individual’s statutory right to make a formal complaint. This may not apply to making an informal report. If you have signed a non-disclosure agreement, you may wish to obtain your own legal advice before making an informal report.

Do you have any final comments you’d like to make?

We have a serious cultural problem within the legal profession. It will require the ongoing efforts of everyone involved to achieve the cultural change needed. The OLSC seeks to contribute to that change by holding the leaders of law practices and chambers responsible for providing appropriately supportive disclosure and complaint channels to victims and zero tolerance to perpetrators.

John McKenzie
is the Legal Services Commissioner for New South Wales.