Newsroom's Sasha Borissenko looks at whether the Law Society did enough to investigate sexual misconduct allegations against Russell McVeagh lawyers, given the Society received a complaint 16 months before Newsroom published reports on the incidents and could have launched its own investigation.
Fourteen complaints of a sexual nature have been made to the Law Society since Newsroom revealed allegations of serious sexual misconduct against two lawyers at law firm Russell McVeagh in February.
The Law Society cannot confirm whether any of the complaints involve Russell McVeagh, or the alleged perpetrators. The Law Society was first aware of the matter almost a year and a half earlier in October 2016, which has raised the question: did it do enough?
Last week, the society launched a survey into lawyers’ workplace environment. It found nearly a third of female lawyers had been sexually harassed during their working life, two-thirds of them having experienced some form of unwanted physical contact. Only 12 percent of people had made complaints throughout their careers, and of those only seven percent had reported it to the society. Twenty-nine percent of all lawyers believed major changes were needed to their workplace culture.
At a press conference the Law Society president Kathryn Beck said its inaction was because of a culture of silence.
“Why were people silent? Because they feared for their careers and also because they didn’t think anything would change. And that’s what we as a Law Society need to change. We need to make sure [people subject to sexual violence] have a safe place to come and that they believe we take action when we have something to act on.”
Later she told Newsroom: “I completely accept that we have not done enough in the past to address sexual harassment and bullying in the profession, we haven’t. We haven’t provided the leadership, we have not done enough. I accept that, and I’m really sorry about that.”
But this information isn’t new. In a survey conducted by the Wellington Women Lawyers’ Association last month, 50 of the 350 respondents said they had experienced at least one incident of sexual harassment or assault in their workplace.
And a survey conducted by the Criminal Bar Association in March showed 82 percent of respondents - 283 legal professionals - had personally experienced or witnessed harassment or bullying behaviour. More than a quarter of respondents (28.5 percent) reported unwelcome sexual attention.
Beck told Newsroom she knew sexual harassment and bullying existed in the profession, but “it was the prevalence and extent of it I think has shocked and horrified me”.
Having been propositioned by a partner herself earlier in her career, she was in a fortunate position where she felt confident to deal with it and confront the partner directly, after which he left her alone. She was also fortunate her actions didn’t have professional consequences, she said.
“That’s not to say those options are available to everybody. It’s difficult for someone facing that in their career. I still remember it even though it was well over 25 years ago."
Earlier, Beck had said publicly the Law Society was first informed of the alleged misconduct in October 2016, at least 16 months before the story was published. The Law Society couldn’t conduct its own investigation on the basis the person who came forward did so in confidence, she said.
Since the launch of the survey report last week, she told Newsroom: “We want to ensure the safety of the people within the legal profession and people that interact with the legal profession. Ideally, we do get complaints that we can act upon and that we can then put through the complaints system.
“That said, we have to balance the rights of the people who have been the victims of sexual harassment or sexual violence who choose not to go through that process. We will always respect the views and the rights of a victim who says they don’t want to participate in that process.”
Did awareness give rise to an overt duty to act? Under the Lawyers and Conveyancers Act the Law Society standards committee is able to conduct its own inquiry if there is reason to believe there “may have been misconduct”.
Misconduct is defined as actions “that would reasonably [be] regarded by lawyers of good standing as a disgraceful or dishonourable conduct”.
During the society's press conference, Beck said “gossip and speculation isn’t sufficient, we would need to know parties, and we would need to have information in terms of what the allegations were”.
"An own motion investigation is always a possibility when concerns are raised about a lawyer's behaviour. Whether that is the appropriate pathway to deal with conduct will depend on a number of things in an individual situation - this includes the interests of those directly affected by the conduct which is being alleged and the evidence that is available," Beck told Newsroom.
In the Russell McVeagh case, once the society learned of the allegations in October 2016, "An own motion investigation was not undertaken on the basis that the victim/s did not want to make a formal complaint nor take the matter any further.
"We are disappointed that the victims did not feel able to make a formal report to the Law Society."
Russell McVeagh came to the Law Society and assured it the firm had dealt with the matter. "We have reflected on these matters and with the benefit of hindsight more information could have been sought at that time from Russell McVeagh.
"We do not believe that, at that time, we could have done anything differently without breaching and disregarding the trust and confidence that had been placed in us when the events were disclosed confidentially. Our resolution is to make the appropriate changes so that such a set of circumstances does not arise in the future."
Beck was unable to confirm whether any of the 14 complaints involved the alleged perpetrators at the centre of the Russell McVeagh scandal.
If an own motion investigation was underway, the standards committee had the ability to suspend a lawyer from practising under the Act. But this happened only in rare cases, when the public was at risk, the charge being investigated "was capable of being proven" and that charge would likely cause the lawyer to be struck off, Beck said.
Justice Minister Andrew Little told Newsroom while the Law Society had a mandate to regulate professional services, this didn’t necessarily extend to protecting employees.
“The Law Society has plenty to do as a professional body, what they’re not good at doing, and what I don’t think they can do is be an advocate for employees of firms [in circumstances of sexual violence].
“What we’ve seen with sexual harassment coming to the fore is that it comes down to power imbalance. The Law Society is not going to be able to correct that power imbalance because they are part of the power structure.”
The stress and fear of repercussions associated with going down the employment relations avenue, as evidenced by the survey results, wasn’t a realistic option, he said. Rather, a body, one that was independent of firms, and the Law Society, was needed to fill this gap.
Since the revelations, Little had received a number of complaints from individuals who had made complaints unrelated to the Russell McVeagh scandal, and who found the regulator’s response to be unsatisfactory.
“I totally understand why people would have gone to the Law Society, these guys are supposed to regulate the profession and ensure people are conducting themselves according to some professional standard.
“The Law Society finds it too difficult [to apply a professional standard] so they don’t do anything about it.
“If there’s a conviction, sure, that would be enough to disqualify you from practising.” But in sexual violence cases, only nine percent of sexual violence cases are reported to the police and just 13 percent of overall recorded cases will result in conviction.
“If it’s the stuff that bears upon character or fitness to practise, it doesn’t really fit the system so someone could act in a pretty heinous way towards staff or even set up another law firm if they get booted out, and none would be the wiser.”
Beck told Newsroom the Society - and profession - wasn’t alone in the area of under-reporting sexual violence.
But an independent body wasn’t the answer. Rather, people didn’t realise they could make a complaint to the Law Society.
“I don’t think there was a gap there. I think there was a gap in people’s thinking and perception. The Law Society can absolutely look at these situations they just had never been asked to do that.”
That’s not to say the current system was perfect, she said.
“We know that our systems, in particular with these sorts of cases, are probably not fit for purpose.” It could be due to their current systems or even their regulatory framework, she said.
The results of a pending working group headed by Dame Silvia Cartwright were therefore particularly important. "Its terms of reference include looking at whether systems, [or] our regulatory framework are fit for purpose for getting those complaints through the door; dealing with the complaints; not re-victimising them, [and] making sure that the process is safe for them as well, and being able to take effective action."
Little said if he’s unhappy with the process or outcome of the working group, he would conduct his own inquiry as Minister of Justice. Until then, he would reserve his judgment.
Who knew what, when
Dec 2015/Jan 2016: Allegations of serious sexual assaults against students on law firm Russell McVeagh’s summer clerk programme arose, which should have been reported by the firm’s lawyers at the earliest opportunity, as per their obligations under the Lawyers and Conveyancers Act. Police confirmed at least one report of sexual assault was made to police.
March 2016: Both alleged perpetrators left the firm. One started work sharing an office with other lawyers, the other went to work at another law firm.
Sep 2016: A further incident occurred including one of the alleged perpetrators in a provincial town.
Oct 2016: the Law Society was first informed of the alleged misconduct involving the summer clerks in October, after one of the young women involved went to the regulator. Newsroom understands the Society told her a formal complaint was required for an investigation despite it being able to conduct one on its own motion to investigate in circumstances of serious misconduct.
Dec 2016: One of the perpetrators involved secured a promotion at another firm.
March 2017: Russell McVeagh was named Law Firm of the Year for NZ at the International Financial Law Review.
July 2017: One of the alleged perpetrators resigned from another law firm after the firm said it became aware of the allegations.
Oct 2017: An association endorsed by the Law Society appointed one of the alleged perpetrators as a member of their executive.
Nov 2017: Russell McVeagh took home Law Firm of the Year at the 2017 NZ Law Awards.
Feb 2018: Newsroom broke the story.
Feb 23, 2018: Russell McVeagh announced an external, independent review, which was criticised by people close to the allegations for their use of “sexual harassment” to classify serious sexual misconduct.
March 2018: All six law schools cut ties with Russell McVeagh. Newsroom confirmed one of the alleged perpetrators left the office he was working at with other lawyers.
April 2018: Dame Silvia Cartwright was appointed to chair the Law Society working group.