Beware the Weinstein moment

Barely a day goes by without some highly public revelation about sexual harassment involving a big-name celebrity or politician.

Jim Middlemiss

Barely a day goes by without some highly public revelation about sexual harassment involving a big-name celebrity or politician.

The legal business, however, has been quietly on the sidelines, largely devoid of any sexual harassment scandal. Apparently, our industry has yet to be “Weinsteined,” a reference to movie mogul Harvey Weinstein, who is ground zero for the #metoo Twitter hashtag.

It’s not like the legal business is immune to sexual harassment allegations or sexual impropriety. Far from it.

In the late 1990s, shortly after Torys merged with New York’s Haythe Curley, the firm tossed out name partner Thomas Haythe over allegations of sexual harassment, following a boozy party to celebrate the merger. It was a prompt and swift response.

In 2004, Power Budd, a boutique energy law firm, blew apart after Peter Budd was convicted of sexual exploitation involving two teenage sisters who were under 18.

Around the same time, George Hunter, head of the Law Society of Upper Canada, resigned after having an affair with a client.

In the mid-2000s, the LSUC initially convicted and disbarred Gary Neinstein of sexually harassing two women — a case that was later overturned by the Ontario Court of Appeal. The law society later dropped the charges.

In 2015, noted lawyer Marcel Aubut resigned as president of the Canadian Olympic Committee and left his law firm BCF (he had taken a group of lawyers there following Heenan Blaikie’s demise), after complaints surfaced about sexual harassment at the COC.

Today, a search of canlii.org reveals a number of cases involving law society investigations and human rights tribunal and court rulings involving law firms and sexual harassment.

It’s not surprising, given the power imbalance at law firms between senior partners and their associates and articling students, not to mention the dependent client-lawyer relationships that can easily be manipulated.

One needs only to look at complaint statistics handled by the Discrimination and Harassment Counsel Program to see the extent of the problem. Run by employment lawyer Fay Faraday, who took over from Cynthia Petersen last July after Petersen was appointed to the Ontario Superior Court, it’s an independent program funded by the Law Society of Ontario.

Faraday offers full confidentiality and won’t talk about specifics, but she says the office is a place where members of the public and profession can turn to if they feel they are victims of discrimination or harassment by a lawyer or paralegal under the Ontario Human Rights Code.

The program offers counselling and guidance, not legal advice, on what it can do and provides mediation and conciliation services.

According to figures tabulated by Canadian Lawyer, between 2003 and the end of 2016, the office handled 2,502 complaints, almost 200 complaints a year. Of that, 176 or seven per cent involved sexual harassment.

A reading of the anonymized summaries is concerning. Often, its law students complaining about lawyers with whom they work and the alleged conduct is severe.

In one case, a female articling student reported that she was sexually assaulted by her male principal at an after-hours, work-related social event. Another female articling student complained that her firm mishandled a complaint about a sexual assault by a client and committed reprisals.

An associate complained about being sexually harassed by a managing partner and then being let go for rejecting his advances.

In other instances, it’s gender bullying, taunts and sexist and paternalistic utterings. It’s not just private practice; in-house lawyers have also complained.

In the 1990s, I interviewed some women lawyers I knew about harassment they faced as articling students and associates for a Canadian Lawyer feature, including one instance where an associate was met at the door by a lawyer in a bathrobe, à la Harvey Weinstein.

Reading the DH counsel’s reports since 2003 suggests to me that not a lot has changed in 25 years.

It’s clear we are at an inflection point in society when it comes to sexual harassment in the workplace. Law firms and male lawyers who ignore this do so at their peril. As Heenan and other firms have shown, the glue that binds partnerships can quickly dissolve and the acetone precipitating such might very well be serial sexual harassment.

The focus on sexual harassment also comes at a time when Ontario lawyers are fighting over whether they should be required to adopt a statement of principles that acknowledges a lawyer’s obligation to promote equality and diversity. Opponents say it’s nothing more than compelled speech. I say read over the DH counsel’s reports and talk to some female lawyers. Sexual harassment remains a problem in the legal business.

As Bob Dylan wrote, “The times they are a-changin’,” but it isn’t coming fast enough for many people, including the 41 per cent of the profession who are women.

Jim Middlemiss is a principal at WebNewsManagement.com.

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