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LAW FIRM CULTURE
Transcript of LAW FIRM CULTURE
- Defining legal culture
- Perception of lawyer's roles and wider socioeconomic pressures
- Impact on experience of individual lawyers
- Coping mechanisms + attitudes
- Structural (intrinsic) and cultural (extrinsic) barriers to full and healthy participation
- Lack of diversity: Discrimination and women inequality
- Solutions to healthy participation
- Hot topic
What is legal culture?
Culture, more broadly, refers to:
“the shared characteristics, assumptions and behaviours of a particular group, both inclusive (what is within the group) and exclusive (outside the group)”
Anything that is characteristic to the profession making it distinctive as an entity, is its culture
How do all these factors pose barriers to full and healthy participation and affect lawyers in practice?
DEPRESSION IN THE LEGAL PROFESSION
GENDER DISCRIMINATION AS A BARRIER
Statistics for Background:
- In 2007,
56% of law graduates were woman
. In 2008,
ONLY 38% of all practising lawyer
are women and
ONLY about 15% of partners
in major commercial law firms are woman
- Women represent over 50% of law graduates and newly admitted legal practitioners in most Australian States but
only 39% are practicing solicitors
in NSW and
only 14% are barristers.
- In 2004,
ONLY 25% of all judges and magistrates in NSW
- Women were 3 times more likely than men to be working part time so women tended to be earning less overall than men
Why is encouraging female participation important?
New perspectives on way law is practised
more pro bono and community legal work
more mediational approaches to dispute resolution
challenge the workaholic model established by male lawyer
Lack of diversity in legal profession means demands of society can not be represented to the fullest
Unhappiness and depression can lead to:
Failure of associates to achieve their full potential
at a cost to them, their firms, clients and even families.
Breaches of ethical standards
of competence and diligence
Loss of talent
to the profession
Passivity and poor productivity
at work leading to inadequate representation, which may cause irreparable injuries to clients and the legal system
The task is to protect the public against harm by addressing potential problems before they rise to the level of disciplinary offences.
LAW FIRM CULTURE
By Olivia, Belinda,
Andrew, Lea and Nicole
Despite lawyers being one of the most highly paid professions, they are also one of the unhappiest professions
more likely than other occupations to get depressed
In a 2009 survey in Australia,
46.9% of law students
55.7% of solicitors
reported that they had
Lawyers are by training, more pessimistic
Lawyers tend to be highly competitive and perfectionist in their work
Extreme stress can lead to depression, with lawyers turning to alcoholism and drug dependency in response to this
In a 1992 poll
described themselves as
and many are retiring early or leaving the profession altogether
1. Softening adversarialism and encouraging cooperative litigation (more negotiation)
2. Learned or flexible optimism via "positive psychology"
3. Using resources such as the Law Society Mental Health and Wellbeing website.
Profits Profits Profits Profits
Step 3: Moral Imagination and Practical Implementation
Solicitors' Rules - 4 - Other fundamental ethical duties
4.1 A solicitor must also:
4.1.1 act in the best interests of a client in any matter in which the solicitor represents the client;
4.1.2 be honest and courteous in all dealings in the course of legal practice;
4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible;
4.1.4 avoid any compromise to their integrity and professional independence; and
4.1.5 comply with these Rules and the law.
Council of Qld Law Society Inc v Roche
guilty of professional misconduct.
Over-billing & discriminating clients
Council of Law Society of NSW v Foreman (No 2)
practitioner falsified her timesheets, but argued that the inappropriate conduct was due to pressures placed on her upon the firm.
Must abide by
Model Laws 3.4.10
in respect of costs agreements.
Model Laws 3.4.30
: client able to set aside a cost agreement not ‘fair, just & reasonable’ (here, induced to enter into the agreement by misrepresentation)
Senior/colleagues to supervise billings.
May be within firm's interest to have an external & independent employee doing the accounting work
Law firm discrimination & private life negligence
Business & legal ethics intertwined:
the entire profession must play its part.
Place to Start
: A modern framework mirroring today’s profession, that is
low decision latitude
considerably reduced by
(learned or flexible optimism)
Internal mentorship programs
enable the learning more about associates’ strengths (leadership, originality, fairness, enthusiasm, perseverance, social intelligence) & employing that knowledge to help shape the work environment (satisfaction & productivity)
Lack of diversity in the legal profession means that society’s demands can’t be represented to the fullest.
Important to encourage women’s participation in law.
Sex Discrimination Act
SEX DISCRIMINATION ACT
Discrimination in employment or in superannuation
(1) It is unlawful for an employer to discriminate against a person on the ground of the person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:
(a) in the arrangements made for the purpose of determining who should be offered employment;
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:
(a) in the terms or conditions of employment that the employer affords the employee;
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
Indirect discrimination: reasonableness test
(1) A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(2), 5A(2), 5B(2), 5C(2), 6(2), 7(2) or 7AA(2) if the condition, requirement or practice is reasonable in the circumstances.
(2) The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:
(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and
(b) the feasibility of overcoming or mitigating the disadvantage; and
(c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.
Power relationships & Bullying
Fair Work Act,
a worker who reasonably believes he/she has been “bullied at work” can apply to the Fair Work Commission for an order.
The person is a worker, at work in a constitutionally-covered business & an individual/group “repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member” & “that behaviour creates a risk to work health & safety”.
Abuse of management or supervisory power
excessive & unreasonable work scrutiny;
constantly and inappropriately changing and/or setting impossible deadlines, tasks or targets;
inappropriate or unreasonable criticism of, or punishment about, someone’s work or behaviour.
Range of Orders
Seems limited only by the general necessity to act judicially & reasonably.
: The person alleged to be the “bully” ordered:
to have no contact with the worker alone;
to make no comment about the worker’s clothes or appearance;
to refrain from sending any emails or texts to the worker except in an emergency;
to “complete any exercise” at the employer’s premises before 8am (and ordered the worker not to arrive at work before 8.15am); &
not to raise work-related issues without first notifying the employer’s chief operating officer or his subordinate.
Wider, external forces
LAW FIRM CULTURE
Impact on health and behaviours of individuals
Commercialism, ethnic and gender transformation and diversity, sociological reasons, law school, adversarial system
High pressure environment, competitive
Culture of presenteeism:
Long, inflexible working hours
Individual resilience and learned helplessness
Low decision latitude
Zero-zero sum game mentality
Impaired general well-being
Bullying or harrassment
in the workplace
Women inequality and discrimination
”, with senior lawyers showing leadership.
A clear & unambiguous policy
• Training given to all staff on the issue
• A Reporting mechanism
• A mechanism to monitor workloads & work allocation
• a properly functioning grievance policy
• fair & efficient processes for performance management & disciplinary action
risk of successful claims
against the firm for bullying;
risk of breach of work health
Makes for a
more productive workforce
Allows people to be treated with the
THE LAW FIRM FIRST NEEDS TO AVOID ANY POTENTIAL COMPLAINT
Legal Profession Act 2004
(NSW): Consequences of non-disclosure.
This shift towards a "managed professional business" model undermines
health and ethical conduct
“After weeks of working a minimum of 14 hours a day, not eating a single meal outside of the office and having every social interaction truncated to ‘I'm sorry, I've got to go - I've got to get this document out urgently’, I was left depressed, exhausted and battling suicidal thoughts. I was genuinely on the brink...”
- Wrote a lawyer from one of the largest firms in Australia
Sex Discrimination and the Legal Profession
The increase in female participation in the legal profession reflects changes to the perception of women's role in society.
Legislative enactments including the
Anti Discrimination Act 1977
(NSW) and the
Sex Discrimination Act 1984
(Cth) has also been implemented to protect against sex discrimination in the workplace.
Hickie v Hunt and Hunt (1998)
Hickie was pregnant when she was appointed as a partner at Hunt & Hunt. She returned from work following her maternity leave on a part time basis. Following her return a Performance Appraisal was conducted and Hunt and Hunt decided not to renew her contract, due to a ‘lack of commitment and interest in the firm’. She was informed of this and she immediately left the firm.
Ms Hickie alleged discrimination and victimization in relation to the decision not to renew her contract and the way in which she was treated by the firm
The Australian Human Rights and Equal Opportunity Commission found that there had been ‘indirect sex discrimination’ within the meaning of s 5(2) of the Sex Discrimination Act 1984 (Cth). The discrimination occurred as Ms Hickie was required to work full-time as a necessary condition to maintain her position in the firm. This requirement was a condition that disadvantaged or was likely to disadvantage women and it was not reasonable in the circumstances. Ms Hickey was awarded compensation of $95,000.
Trying to understand law firm culture in its social context
The Council of the Law Society of New South Wales v Foreman
Facts: Foreman acted in divorce proceedings which accrued $355174.99 in costs for Clayton Utz. The client disputed that a cost agreement was provided, and subsequently sought to avoid paying the fees incurred. Foreman forged two timesheets to reflect that the disclosure was made. A discrepancy between the timesheets was discovered, revealing that they are forgeries.
Mahoney JA: Through her actions Ms Foreman breached the serious responsibility she owes the Court and the rest of the profession. The imposition of a fine is not a ‘proper measure of the seriousness that was done’. The court cannot hold Ms Foreman as a person fit and proper to practice as a solicitor, and the profession and wider public would not see anything less than striking off as an appropriate action.
Kirby: Her legal expertise could be better utilized in the community, so instead she should be assigned to service in a community legal centre.
A Solicitor v Council of the Law Society of New South Wales
Facts: A solicitor faced two charges of indecent assault in 1997 and 2000. He was convicted and sentenced for two years imprisonment for the offences of 2000, but was acquitted on appeal. He failed to disclose these charges. In 2001 the Law institute initiated proceedings against him, arguing this is a breach of the solicitor’s duty of candour to his professional association.
Judgment: The solicitor showed ‘true contrition’ by admitting the wrongful nature of his conduct, seeking psychological assistance and pleading guilty. The breach of his duty of candour should nonetheless be treated ‘very seriously’ and a finding of professional misconduct should be made. He should not be stuck off from the roll of practitioners, rather a suspension of five years would be more appropriate.
Values, behaviours and attitudes
Interpersonal relationships within the firm: hierarchy, junior associate being subordinate to a senior
How is law firm culture acquired?
Commercialism and globalisation
Women admission into practice permitted
Early 20th century
Increasing women participation in profession
(1) Socioeconomic change
(2) Ethnic transformation
(3) Gender: Increasing women participation
Core areas of change:
Higher education access
Demographic changes in social and ethnic profiles
Milestones for Women In Legal Profession
was first woman to graduate in law from USYD
was first woman to be admitted to practice in Australia, as a barrister in Victoria
was first woman in Australia to be appointed as Queen’s Counsel in Adelaide
Also first woman judge in Australia, appoint to Supreme court of South Australia
was appointed as the first woman Chief Justice of new Family court of Australia
First woman president of Australian Law Reform commission in 1986
First women elected to United Nations Human Rights Committee in 1992
was first woman appoint as justice of High Court
• In 2000, 37% of female solicitors reported gender discrimination
• In 2001, 47% of respondents in survey reported gender based harassment or discrimination compared with 3% of male respondents
• 5% reported pregnancy based discrimination
Other Legislative Measures:
Anti-Discrimination Act 1977
Sex Discrimination Act 1974
Equal Opportunity Act 1977
Unlawful to treat women less favourably than men in terms of conditions of employment by imposing unreasonable conditions or requirements that women could not comply with
Sexual Discrimination Act 1984
give effect to international human rights obligations to prohibit discrimination on ground of sex, marital status and pregnancy throughout Australia
Affirmative Action (Equal Employment Opportunity for Woman Act
Equal Opportunity for Women in the Workplace Act 1999
Programs to remove barriers to women entering and progressing within organisation. Law firms have to report to Equal Opportunity for Women in the Workplace Agency (EOWA) on actions taken and outcome of workplace programs to remove barriers
Legal Profession Regulations 1994
69B – prohibited legal practitioner engaging in discrimination
69C – require solicitors to undertake mandatory education in area of equal opportunities, discrimination, OHS
Although legislative measures are in place, in reality, barriers to equality continue to exist.
This may be due to the reluctance of women lawyers to use legal remedies illustrating:
Lack of awareness
Fear of retribution
Fear of publicity, drawing adverse attention to themselves
Ineffective remedies act as deterrents to making formal complaints
Professional Conduct Rules
42 Anti-discrimination and harassment
42.1 A solicitor must not in the course of practice, engage in conduct which constitutes:
42.1.2 sexual harassment; or
42.1.3 workplace bullying
ANTI-DISCRIMINATION AND HARASSMENT
117. A barrister must not in the course of practice, engage in conduct which constitutes:
(b) sexual harassment; or
(c) workplace bullying.
Reasons for Barrier
"Boys' Club Culture"
Lack of mentoring and role models
Structure of Legal Profession
In the past, private law firms were generally limited in size
Personal relationship with their clients
Trend towards commercialism
Legal profession moving towards engaging the global economy
By the 1970s, many larger law firms adapted their internal organisations to this more corporate model
What does this mean for law firm culture?
Much of the lawyer's lifestyles fit in with the needs of the corporate clients of their firms
New focus on generating profit and need to budget time to meet high competition set by society
Not all hours are billable either
As a consequence, firms need to work every hour of every day: Long hours at the office
Historically, the legal profession in Australia derived from the English legal tradition
"White, middle-class and Anglo-Saxon men"
It wasn't until 1947 that the Australian Whitlam government relaxed the Immigration Restriction Act
Encouraged influx of non-English, non-European
groups into Australia
Naturally, demographic change in society
is becoming reflected in the profession
Women were not admitted to practice law in Australia until the early 20th century
Since then, there has been a
gradual increase in the numbers of women studying and graduating from law
Post 1960s, tertiary education fees were also removed, allowing wider and higher access to university education especially for women
From 11.4% of law students to 41% by 1984
In 1997, 53% were female graduates compared to 47% who were male
This increase in women law graduates led to the expansion of numbers of women in the legal profession
Cultural restraints are still limiting the potential for women to advance in law at all levels of the legal profession
In addition, the broader "ethnic mix" in the Australian population is not reflected in the legal profession accurately
"Aggressive male culture"
Women are more than likely to experience discrimination than their male partners
Prompts the question of whether the legal profession needs to become more ethnically diverse and more representative of diversity in the community
Implications for the future of the legal profession
HOT TOPIC 1
Do you agree with the High Court's judgment in these cases?
Do you think the standard of a 'fit and proper' person to practice is consistent and objective?
Does the the high pressure and demanding nature of legal culture lead to, or justify to any extent, unethical practice?
HOT TOPIC 2
'Law is necessarily the most conservative of the professions and it is not strange that people are slow in accepting such an innovation as the woman lawyer.'
Why are lawyers unhappy?
1. Lawyers are selected for their pessimism and this generalises to the rest of their lives
2. Young associates hold jobs that are characterised by high pressure and low decision latitude, conditions that promote poor health and poor morale
3. Adversarial law is to some extent a zero-sum game, and negative emotions flow from zero-sum games.
Strengthen education in law schools by performing further research into the links between successful practice and teaching methods
Target earlier phases of lawyer’s training
Increase awareness of the ethical issues that might arise
What should Law schools do?
What should law firms do?
Tailoring a lawyer's day to provide more personal control over work
Learn associate's strengths and using that knowledge to shape the work environment
Implement Tristan Jepson Memorial Foundation Guidelines