Exploitation at the heart of the Law in New Zealand

How young lawyers grin and bear it and break down

Sasha Borissenko

Newsroom, Auckland, April 21, 2018

Note: Different names have been used to protect the sources’ identity

Allegations of sexual misconduct, systemic abuse and prejudice against women in law firms point to a wider employment problem in the profession: a culture of exploitation and ill treatment of junior lawyers overall.

Lawyers are required to uphold the law but in one area of the law, employment and workplace rules, their profession has repeatedly failed.

Despite attempts among some junior lawyers and others to unionise, the practice of taking on bright juniors and flogging them in a do-or-die rat race continues.

Justice Minister Andrew Little knows the “absolute nonsense” that goes on, and wants change to come from the inside, not to be imposed but in light of this year’s allegations of misconduct and exploitation, is reserving his rights.

The bad experiences of young lawyers are legion.

“Encouraged and Expected”

Fred completed the clerkship programme at Russell McVeagh prior to the summer of 2015-2016. It was all “parties and boozing and misbehaving. This (was and) is encouraged and expected”.

It was his experience as a graduate, not a clerk, that was horrific, he tells Newsroom.

“The pound of flesh it took, and drama and anguish it caused really took its toll on me, as I know it has on many others.

“(Firms) basically chain you to a desk, throw away the key and ask you to account for your time in six-minute increments. They ultimately write most of the (time) off because it has been under-quoted by the partner managing the file, and then they do not give you a pay rise because you have not met your targets despite having no control over either the quote or the write-off.”

Chained to Desk

Being the lowest member of the food chain at what he describes as ‘Russell McFactory’ meant that “you are pitted off against your fellow grads, meant to fight for work on the basis that if you don’t meet your targets and don’t get a pay rise you are essentially shamed into exiting.”

“When you are a graduate in your first role and getting paid $40,000 a year and trying to live in (a city), as well as starting to pay back the huge student debt, you have incurred in five years’ worth of study for the ‘privilege’ of this new job, it is safe to say that we were all much, much poorer as graduates than we had been as students.”

Add to that the 70+ hour weeks, and Fred was earning well below minimum wage. He describes working until 930 pm each night, having little stake in the work, and “then before Christmas, you are sent off to this Christmas party where they ply you with alcohol and everyone is so stressed and run down that (“you are put in a very vulnerable position”).

For Fred, the bleak picture of being a junior lawyer raises the question: Why has not the legal industry been unionised, and what legal protections do summer clerks and junior lawyers have against human resources or the partner model’

Unionising Legal Industry

Jack tried and failed to set up a union last year. The aim was to target the top four law firms first (Bell Gully, Chapman Tripp, Russell McVeagh and Simpson Grierson) in the hope that rights would trickle down to the entire industry.

The top firms also employ the largest number of people.

“It is well-known that junior lawyers – especially in their first few years – can work long hours, which is nothing new internationally, but in New Zealand, salaries are not high enough relative to the costs of living and student loans.

“It is the little pay, having no life outside of work thanks to sporadic extra hours, that prompted me to try and start a union.

“I find it ironic the people who are arguably the best-educated, and best-placed to fight for their rights are the ones that don’t. I do not know if that is because it is expected that the first few years will be relatively bad and there is a soldier-on attitude, or there is a sense of helplessness or fears of taking on a big employer.”

If junior lawyers were paid overtime, then employers would have no incentives to keep them there for as long as possible, he said.

“You would be used more efficiently. Instead employers are incentivised to understaff.”

People are scared

In contrast, Jack worked in the UK for a period, where working overtime was rare, but in the event it did happen, he would “get paid quite handsomely.”

While Jack’s push to start a union failed, he says it could still happen.

“We need leadership from a keen group of people, we just haven’t been able to get it off the ground yet. The main hurdle for launching this kind of thing is that people have been scared to be involved – for their careers or perceived consequences. It may be irrational, but people fear they potentially will not be employed or will be treated negatively if they are seen to be part of a union and irrespective of legislation that prohibits this type of behaviour.”

“I find it ironic that the people who are arguably the best-educated, and best-placed to fight for their rights are the ones that do not.”

Trained lawyer and First Union finance sector national organiser Stephen Parry has been approached by about 20 young lawyers – including Fred – about the possibility of establishing a union since early 2017.

Silent sufferers

Unlike the banking and insurance industries, junior lawyers are expected to put up with whatever pay and conditions are given to them in the hope they will eventually advance up the ranks, he said.

“The issues which have been most commonly raised include an expectation to work large amounts of overtime without remuneration, and an organisational culture of hierarchy and silence which makes it difficult to raise issues of bullying, harassment or mental health.”

While there has been an increased emphasis on mental health within the profession in recent years, Parry said that the systemic factors underpinning the problem have yet to be addressed.

“The legal profession has been aware of the problems it faces around workload, stress, mental health within the workplace for years, but it has so far failed to take the necessary steps to fix them. I think it naïve to expect that this will be led from the firms themselves, as these are the institutions perpetuating and benefiting from the status quo.”

Supply and demand

The University of Otago’s Legal Issues Centre Director Dr Bridgette Toy-Cronin said that the issue comes down to the structure of big law firms.

“Unlike other professions, the legal industry has not been unionised because unionisation is difficult in this current economic climate. We have seen a general move away from unions in recent times.”

Then there’s the problem of supply and demand, which is exacerbated within law as opposed to other professions.

“Law schools have been producing an awful lot of graduates per year for a very long time now, there’s far more than there are positions for new graduates in firms. There is a continuous supply of good graduates to take these jobs – these are elite, sought-after jobs – so it makes it hard for new graduates to organise themselves. Graduates have invested a lot in their education and the competition means they are likely to consider it risky to unionise.”

“Shut Up and Bill”

Law firms employ a triangle model, so people at the bottom are highly expendable, she says, paving the way for a “shut up and bill” mentality.

“The model of billable hours means that there is an obvious target that needs to be reached and in fact exceeded to get to partnership, otherwise, you’re out. Everyone in this environment is competing to get to these spots. The environment renders it hard to unionise, resist or report bad behaviour. If you are not going to play by the rules the model is quite happy for you to move on.”

A Harvard Business School Study found toxic workers are tolerated by management if they are high achievers, because there is a focus on the company’s productivity.

There are people who are sick of this model and who are looking for creative ways to tackle the current climate, but the structure is hard to change.

“The problems that we have seen in recent months comes down to abuse of power, and exploitation within an industry that should know better, but are more concerned with reputation and protecting their financial interests,” says Olivia Wensley, another prominent lawyer who has weighed in on the discussion.

“Women are massively vulnerable, junior lawyers have never worked in an office and they are conditioned to believe that abuse and exploitation is normal.

“Lawyers and law firms are meant to be the gatekeepers of ethics – that is why they have gotten away with it for so long. They are beyond reproach. They are literally above the law and no one is watching them.”

Sexual Violence in New Zealand

In New Zealand, only 9% of sexual violence cases are reported to the Police and just 13% of overall recorded cases will result in conviction.

Newsroom understands that the Law Society told one of the victims in the Russell McVeagh scandal that a formal complaint was required for an investigation despite the Law Society being able to conduct their own motion to investigate in circumstances of serious misconduct.

Because of the low prosecution rate, and because the industry is so small, there’s little point in people seeking help from the police or the Law Society, Wensley says.

“Lawyers and law firms are meant to be the gatekeepers of ethics – that is why they have gotten away with it for so long. They are beyond reproach. They are literally above the law and no one’s watching them.”

“It is not in lawyers’ or the Law Society’s interests to look into what is happening. The (Law Society’s) modus operandi is to protect the profession. And you otherwise cannot expect lawyers to self-regulate – it is the same as expecting pests to regulate pest control.”

Labour laws just don’t apply, Wensley said.

Small Industry

“It is an incredibly small industry. There is the fear of taking on a power house. If you do (file) a personal grievance, it is commonly known that you will never work in that town. They are all friends.”

Law Society Executive Director Mary Ollivier said that lawyers are expected to comply with their employment obligations not only in accordance with the law but also to meet the professional conduct requirements in the Conduct and Client Care Rules.

These include the obligation to ensure that staff are properly managed and supervised.

“Lawyers are required to uphold the rule of law. This includes addressing discrimination and harassment, and it also means lawyers must not engage in unlawful employment practices. Lawyers who are partners, directors or barristers who employ staff must ensure that the conduct of their practice and the conduct of all employees is always competently supervised and managed.

“If there are any concerns that these obligations are not being met, these can be raised with the law firm through its internal complaints process and/or with the Law Society as appropriate. The Law Society is currently setting up facilities for the reporting of sensitive matters.

Ushering a culture change

“The Law Society has given a great deal of thought to the best way it can drive culture change within the profession and introduced a working group to look at current reporting and regulatory processes, an online survey and new sensitive reporting facilities.

“The Law Society has tasked itself with working to effect real change within the culture of the legal profession and to ensure that working environments for all lawyers are improved.”

Justice Minister Andrew Little says if he thinks the Law Society as a governing body is conflicted or compromised, then he will conduct his own inquiry into the safety of practitioners and other staff.

However, he is not doing so at this stage.

Andrew Little’s experience

“In my view they have never been very keen or quick to provide advocacy or quality of management to young lawyers, a space that desperately needs to be occupied.”

When he entered the profession in the early nineties there was a mentality “to work your backside off at the expense of your health, which is absolute nonsense”.

“Anecdotally I don’t think a lot has changed.”

But it’s a movement that has to start from the inside, not the outside, he says.

“The impetus to unionise has to come from young lawyers themselves.”

What the firms say

Russell McVeagh and Simpson Grierson have declined to comment.

Both Bell Gully and Chapman Tripp said that they employ work-life balance programmes and training, and they welcome communication and feedback.

Wellbeing and health and safety are a priority for both of the firms.

A Bell Gully spokesperson said that the structure of corporate law firms reflects the ownership of those firms.

“Our firm is owned by the partners who work within the business, who directly manage teams under the umbrella of the firm’s wider culture and policies. We are very aware that at times our teams need to work outside regular working hours. We have in place mechanisms that provide additional support to our team in this situation and recognise such performance.”

Chapman Tripp Senior Communications Executive Alexandra Yovich said that work-life balance is critical for their firm.

“We do have large, intense and challenging projects that can mean additional time and effort is needed. In these situations, we acknowledge that the effort put in and rest our people after this type of project. Everyone at the firm is now very clear about our expectations and the consequences of not maintaining the standards we set. We have an anti-harassment and bullying policy, and our people have a number of internal and external support channels including an 24/7 Employee Assistance Programme and free external counselling.”

Sasha Borissenko is News and Engagement Editor and Staff Writer at Newsroom, an independent, New Zealand-based news and current affairs site, founded by Mark Jennings, former Head of News and Current Affairs at Mediaworks (TV3) and Tim Murphy, former Editor-in-Chief of the New Zealand Herald. Newsroom is powered by the generosity of people who support its mission to produce fearless, independent and provocative journalism. Indian Newslink has published the above Report and Picture under a Special Agreement with www.newsroom.co.nz

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Image Courtesy: Mohammed Hassan/Pixabay

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