Sasha Borissenko: When law firms value profit over people

OPINION:

Recent complaints to the Law Society about behavioural issues at prominent Wellington firm Morrison Kent shows the legal industry still has much work to do to address cultural issues.

The claims, revealed by the Herald last month, are all too familiar within an industry that’s been called into question over the last five years. The question is whether things will change, but more importantly, is there the impetus from those in power to do so?

Morrison Kent and Russell McVeagh in a nutshell

To recap: during a Morrison Kent Christmas party speech in 2019 two women described a senior colleague as a “token woman of colour” who helped the firm’s Wellington office to satisfy diversity requirements. The firm later acknowledged the inappropriateness of the speech and promised “cultural training”.

Months later the woman described as the “token woman of colour” was made redundant along with six others. Meanwhile, the firm has decided to retain almost $600,000 of Covid wage subsidies despite documents showing the amount the firm billed in 2020 increased from the prior year.

Sources have claimed there was apparent lack of accountability for the Christmas party speech while also denouncing what they describe as a culture of favouritism towards staff who brought in the most profits.

Sources said they believed board members were aware of the alleged problems associated with the firm’s culture, but “nothing was ever done about it”. There are now at least three complaints before the Law Society.

Morrison Kent’s Richard Caughley couldn’t comment on individual employment matters but acknowledged that from time to time the conduct of individuals “failed to meet the standards expected”. The firm had grown considerably in recent years and it recently hired an HR manager.

In terms of the wage subsidy he argued the firm’s billables were not a reflection of the firm’s profitability and it met the criteria for the subsidy.

Russell McVeagh, in contrast, concerned alleged sexual misconduct at the firm’s Christmas party in December 2015. Dame Margaret Bazley’s independent review called on the firm to take on a cultural shift. The Law Society followed with a suite of changes to do so on an industry level.

Five years later, in June this year, the former partner – James Gardner-Hopkins – was subject to a five-day hearing before a Lawyers and Conveyancers Disciplinary Tribunal at the Wellington District Court.

He was found guilty of six misconduct charges relating to six separate incidents – including touching summer interns inappropriately.

The elephant in the room

I’m of the opinion that the issues raised by the Morrison Kent and Russell McVeagh investigations arguably are a byproduct of a system that fundamentally values profit over people.

In a statement released late last month the Aotearoa Legal Workers’ Union co-president Tess Upperton said the Morrison Kent story and others broken since Russell McVeagh showed that “the legal profession has a long way to go”.

“A band-aid PR campaign or a brand refresh clearly do not fix systemic problems that sadly run deep in the profession,” she said.

The most vulnerable people in these situations are treated as if they’re disposable and “can be gotten rid of at any time” – as one source claimed in the Morrison Kent investigation, yet it seems near impossible to hold those at the top accountable.

Who should step in?

The new Law Society rules around reporting, which require lawyers to make a confidential report if they have reasonable grounds to suspect unsatisfactory conduct. But while the new rules kicked off in July, they’re not retrospective.

In theory, the hearing involving James Gardner-Hopkins set a precedent for dealing with historical issues, but while he was found guilty, he’s still practising according to the Law Society registry. He was due to be sentenced in late September but as a result of Covid-19 it’s now scheduled for December 9.

Another theory is that perhaps WorkSafe should be taking more of an active role in ensuring workplaces are free from toxicity.

In both of these investigations, it appears journalism offered an outlet for people in a system that arguably failed them. The court of last resort comes to mind. The legal industry may be small and investigative journalism has seen better days, but sources are protected under section 68 of the Evidence Act.

“If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered,” the section reads.

Where to from here?

Gardner-Hopkins is still practising, and in the case of Morrison Kent, the Law Society is unable to comment or confirm there are three complaints as they’re confined by the Lawyers and Conveyancers’ Act. It’s now a case of wait and see.

It’s just a theory – again, another theory – but perhaps calling on the Government or a regulatory body to fix systemic issues mightn’t be the solution because we’ve left the situation up to the market to decide in a literal and figurative sense.

If the buck stops at money, where do law firm’s clients come in? And do these clients have diversity, anti-bullying, anti-harassment, and mental wellbeing policies in place?

Perhaps it’s time to question not what or why these issues are coming to light but rather cui prodest – the Latin term for “who profits?” To quote Watergate’s whistleblower Deep Throat: perhaps to make real change it’s time to “follow the money”.

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