Thomas Alan finds profession facing tough questions over record on sexual harassment
From the Presidents Club charity dinner to the news in March that the Solicitors Regulation Authority (SRA) will challenge the misuse of non-disclosure agreements (NDAs), the legal profession has been jolted by allegations of misconduct and sexual harassment since the start of the year.
The standout recent case has been the news that Baker McKenzie sanctioned a partner following an allegation of sexual assault, before agreeing a settlement with the complainant and signing an NDA.
Such malfeasance by a top-level partner could suggest a wider problem on its own. However, details have since emerged that in the several years since the incident, the partner occupied management roles within the firm.
Bakers immediately faced its critics, who suggested its handling of the issue was too weak and sought to silence the victim. The firm has since announced the SRA has been contacted, a review of its procedures has been launched and confirmed the partner in question was leaving the firm. It also appointed Simmons & Simmons in February to conduct an independent review of how it handled the allegations, and to look at the firm’s complaint procedures when dealing with sexual misconduct and other inappropriate behaviour. Bakers now finds itself locked into an agreement with the complainant that hinders it from establishing any sort of closure around the case since it became public knowledge.
Although the victim does not wish to be identified, these events prompted the SRA to issue a warning notice that NDAs will be considered improperly used if they attempt to prevent a person from reporting misconduct to the police or other prosecution or regulatory authority.
It has reminded firms that NDAs are meant as a way of protecting commercial interest and confidentiality, not as a means of preventing people from reporting wrongdoing. The abuse of NDAs is seen as compounding existing cultural problems within the profession that narrow opportunities to report inappropriate sexual behaviour.
Over a two-year period between November 2015 and November 2017, the SRA received 21 complaints of inappropriate sexual behaviour, which is seen as unrepresentative of all cases within the industry. Though the warning from the regulator will not form part of the SRA Handbook, it could be referenced during investigations.
Bakers is not the only Global 100 firm recently to be shamed by a partner sexually harassing female staff. Herbert Smith Freehills (HSF) in March fired a partner following claims of workplace misconduct. The Australia-based partner was suspended following an investigation prompted by allegations of sexual harassment by a number of female employees. HSF sought to head off the criticisms other firms have faced by acting promptly and assertively once evidence was found.
In February, Dentons announced the departure of a partner after launching an internal investigation into allegations of past inappropriate sexual behaviour. The fact that the partner’s departure came after the investigation found no evidence of sexual harassment reflects just how sensitive these cases are and how quickly the pressure to act can be brought to bear.
However, other cases have clearer criminal repercussions. Former Linklaters partner Thomas Elser was sentenced to three years and three months in prison by a court in Munich for assaulting a student at a firm party several years ago. Elser assaulted an intern after Linklaters’ Oktoberfest party in September 2014 before a former litigation partner of the firm, Laurenz Schmitt, intervened and punched him in the face. Schmitt reported Elser to the firm the following day and Linklaters started an internal investigation, which concluded with both partners leaving the firm with immediate effect.
Linklaters was quick to differentiate its response to the case from that of other law firms, with the judge clear in her summing up that Linklaters carried out its internal investigation appropriately. This demonstrates the attention is no longer simply on the incidents themselves, but also the immediate and long-term responses to their occurrences. Many will point to improvements within the industry over the last two decades. However, this defence is beginning to be exposed, particularly as the use of NDAs is becoming the subject of greater scrutiny.
Since several City law firm partners were revealed to have been ‘embarrassed’ guests at the now-notorious Presidents Club dinner in January, a catalogue of behaviour has come to light within the profession that ranges from inappropriate to abusive. As a result, it becomes difficult to understand how prevalent misogyny in law is, or detail any progress regarding the treatment of women within the profession. But the emphasis is shifting to the response to these cases, which many consider to be unsatisfactory.
How to demarcate these types of behaviour will prove difficult. As one partner told Legal Business: ‘It depends on what you call sexual harassment. Far more endemic is a bullying culture where there are partners who undermine women.’
These cases are unlikely to disappear, as the lack of parity between men and women regarding pay, workplace treatment and sexual harassment all become inflamed issues. Law firms will be acutely aware of the pressure to act, as entrenched responses begin to sound like worn-out excuses.