NEW SOUTH WALES lawyers who bully co-workers will not be liable to face professional misconduct sanctions, including being struck from the roll, for at least another 12 months.
After almost a year of toing-and-froing, the state’s Law Society Council last week considered a paper recommending tough reforms to the Legal Profession Act to deter anti-social workplace behaviour.
Although it passed 11 of the 12 strategies put forth in the paper, compiled by the Equal Employment Opportunity (EEO) and Young Lawyers (YL) committees, Council determined that one year’s further consideration should be given to any suggestions that legal bullies be charged with misconduct under the Act.
Accordingly, the Society will not officially entertain the radical idea until September 2004 at the earliest. In the meantime, the focus will be on education, with legal training providers to be asked to include bullying-prevention in their courses. Law Cover, chiefly responsible for NSW solicitor professional indemnity insurance, will also be requested to take into account whether policy holders have acquainted themselves with anti-bullying rhetoric whilst formulating premiums.
“There will be premium savings if you do the courses,” said Law Society president Robert Benjamin. “Preventing bullying is a part of risk management. Victims can often make errors.”
A broader definition to the one suggested in the paper was also adopted. Modelled on that developed by the NSW Attorney-General’s department, the definition includes bullying as a subspecies of “unreasonable and inappropriate workplace practice”.
Benjamin advised that there was no vote on regulatory reform because it was previously determined that the issue be deferred for a year. Lawyers Weekly understands that the motion to defer was put to a vote at last Thursday’s meeting (18 September) and that a majority of only one prevented it from being determined then and there.
Benjamin reported that “an interesting debate” ensued between members of EEO and YL on one side and the Industrial Relations (IR) committee on the other.
“Both agreed that bullying should not take place,” he said. “Although there is universal abhorrence of less favourable treatment in legal workplaces, a common understanding of what is and what isn’t bullying can not always be reached.”
“On one side there were also concerns that the profession was already over-regulated, while others wanted to take a stronger stand,” he said.
Aside from concerns about the paper’s professional misconduct arguments, a definitional debate was also understood to be responsible for it being delayed for so long. The Society’s bullying taskforce head, Amber Cerny, said she was pleased the agreed definition included the term “bullying”.
“It’s important for young lawyers, because it’s a term they relate to,” she said.
In search of greater consensus throughout the profession, Benjamin said the Society would discuss the prospect of adding regulatory bite with regional presidents, as well as lawyers from government and in-house departments, over the next year.
YL president Andrew Perry described the outcome as a “victory”, despite not yielding any feedback on the one recommendation that many believe will act as the greatest deterrent to bullying.
He said misconduct charges could still be brought forth pursuant to Rule 25 of the regulations, which in essence demands practitioners treat each other with respect, but conceded that history dictated that such an approach was not popular.
“We will continue to push for a separate provision; Rule 25 has been around for a long time and has not been effective in stamping bullying out,” he said.
Asked if he agreed with claims that solicitor conduct was already “over-regulated”, Perry said so long as additional provisions were “justified and rational”, there should be no debate.
“Lawyers are officers of the court and should all accord each other a level of respect. If it’s a regulation that supports that, then it’s one that’s important to ensure the administration of justice,” he said.
Along with YL, the EEO committee will be chiefly responsible for implementing the recommendations into practice in the coming months. EEO chair Shauna Jarrett said the meeting’s outcome was “a very satisfactory result.”
Add bullying to the current EO policy on the Law Society’s website
Publish articles on workplace bullying in legal publications online and in print
Ask the College of Law and other training providers to include bullying-prevention as well
Provide a workplace-bullying presentation to each of the appropriate regular groups that meet under the Law Society’s auspices.
Amend the Code of Conduct for corporate lawyers.
Ensure the Practising Certificate A course contains an appropriate section on good people management.
Negotiate with lawyers’ insurance providers for them to offer reduced premiums for those who have attended appropriate risk management training that specifically includes bullying.
Consider making the next NSW Law Society ‘Special’ Equal Opportunity Award a ‘Bullying Prevention’ Award.
Amend the Young Lawyers Employment Guidelines.
Work with the Bar Association to develop a joint code of conduct.
Write to WorkCover to ask them to issue written guidance on workplace bullying prevention similar to that recently issued by both Worksafe Victoria and WA’s Worksafe.