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Practicing Law Without a "No Jerks Allowed" Policy

Practicing Without a "No Jerks Allowed Policy"

Last, week we talked about “no jerks allowed” policies, a tool for law firms who are committed to the principle that misbehaviour to people will not be tolerated. We could devote several blog posts to jerk behaviours in our profession, since that is effectively what incivility is, and within our workplaces. I don’t know how many Alberta law firms have “no jerks allowed” policies, but I suspect that the number is relatively small and that they tend to be small to mid-size firms with cohesive leadership and values. In an ideal world, all employers would have “no jerks allowed” policies supported by education, culture, and when all else fails, discipline, but the reality is that these policies are quite new and not widespread yet.

Where does that leave the rest of us, besides polishing up our resumes and seeking out these “no jerks allowed” firms? Assist continues to hear from articling students and junior lawyers about offensive and even abusive behaviour by people higher up the food chain (we will talk about jerk co-workers another time.)

I remember some “beauties” from my junior lawyer days, and based on what I am hearing, they are not yet extinct.

My first question, as a former inhouse counsel who approved legal bills for payment, is how do you bill your time spent bullying students and associates? Billing for “office conferences” was deemed too generic many years ago, so what do you think of:

  • To kicking garbage can across room, sweeping everything off desk (including phone) and screaming at articling student: 0.4
  • To ranting at student for being the stupidest articling student ever: 0.3
  • To telling everyone who will listen about you had every right to rip a strip off said student: 1.2
These entries might be accompanied by:
  • To being yelled at by abusive partner: 04
  • To finding private place to cry: 0.5
  • To seeking support from other articling students and associates: 2.5
My facetious billing entries are intended to be a light reminder that abusive behaviour and temper tantrums do not enhance your bottom line, nor do they create a productive work environment after. Venting your spleen is not a billable activity. Your devastated junior or student loses productivity cowering in their office. And your HR manager, if you have one, is reaching for Tylenol.

Now that we have established that abusing associates, juniors and staff is unproductive as well as unacceptable at its core, what can you do when you are the recipient of unprofessional and demeaning conduct?

Ideally, and legally, your firm should have a Respectful Workplace Policy. Alberta’s Occupational Health and Safety legislation requires all employers to have policies that address harassment, discrimination and workplace violence pursuant to our Occupational Health and Safety legislation.

As lawyers, we are also subject to Rule 6.3 of our profession’s Code of Conduct which prohibits discrimination and harassment. The Law Society of Alberta has a precedent Respectful Workplace Policy  that firm managers can customize for their firms using an Employers Guide.

If you experience disrespectful conduct at work, check your firm’s policies. Larger firms will have a full suite of employment policies while smaller firms, not surprisingly, will have fewer. For students articling with a sole practitioner, don’t be surprised if your office has no employment policies. We will talk about that.

You have probably heard the aphorism that the shoemakers’ children go without shoes—the same can be true for lawyers and law firms. They don’t always have policies that they would, if they were giving employment law advice to clients, recommend. Most lawyers work long hours under demanding conditions. Things like workplace policies can slide to the bottom of the To Do list or even off the list altogether as more urgent, client-related matters take precedence.

I spent many years practicing corporate human resources law, which involved working closely with workplace conflict, bullying, harassment and discrimination and it pains me to say that a policy is just a piece of paper. It is an important piece of paper (or collection of pixels), but its effectiveness can be undermined by how it is implemented, whether it is accompanied by thorough procedures which adequately protect confidentiality while complying with the principles of natural justice, and whether the individuals responsible for investigations and assessing conduct are credible, unbiased, and respected.

Policies are helpful after the fact, but if you feel calm in the moment despite being under attack, you could consider:
  • Telling the person that you would be happy to discuss the issue with them later in the day once they have calmed down and can speak to you professionally and leave the room
  • Using humour to attempt to deflate the tension.
I am not sure I have the sang-froid to pull either of these off, but some people succeed in de-escalating situations. And to the extent that doing something frees you from feeling like a helpless victim, there may be merit in showing that you are not accepting abuse. These tactics will not work with everyone but be aware that you can sometimes take control or reduce the situation to silliness in some cases.

More frequently, however, we find ourselves frozen while the abuse unfolds and then conduct a post-mortem where we think of all the things we wished we had said.

You then have a couple of options: you can engage in The Clash dilemma, “Should I Stay (i.e., continuing to take the abuse) or Should I Go” (as in quitting) or you can raise your concerns with leadership. If your firm has a Respectful Workplace Policy, this may be your best recourse.

However, first, if the inappropriate conduct you are experiencing is related to a prohibited grounds under human rights legislation (race, religion, gender, disability to name a few), you may have additional avenues to explore. This includes sexual harassment, which continues to exist in our profession in spite of more than thirty years of education. Visit the Alberta Human Rights Commission website to learn more.

If you are dealing with unacceptable conduct not connected to a prohibited ground of harassment, it can be difficult to assess whether the individual’s behaviour crosses the line. “Bullying” is the term that evolved to cover non-prohibited grounds harassment and is generally defined as conduct (whether a single incident or a pattern of behaviour) which negatively impacts someone’s well-being that you would reasonably be expected to know to be intimidating or humiliating.
Here is an example: you deliver the news to a more senior lawyer that the strategy they instructed you to use was unsuccessful at court or in a negotiation. The lawyer (assuming that this is in the in-person world) throws the stapler in your general direction and begins yelling that “it was a good strategy and we lost because you are stupid!” Throw in a few curses for good measure, or not, and it looks like behaviour which on an objective test is likely to humiliate or embarrass you and which negatively impacts your well-being.

This isn’t to say that supervisors (using that term loosely) cannot deliver negative performance comments. It is about the method and not the message.

For example, the junior lawyer comes into the partner’s office and says that their application was denied and explains what they argued and what the other side argued. The supervisor asks how the junior responded to an argument that the other side raised, which perhaps they didn’t consider, and junior’s response was obviously weak. The supervisor can explain to the junior why their argument was unsuccessful and was a poor choice. The
supervisor can outline how the junior could have addressed that issue but should avoid passing judgment broadly and saying, for example, that they are disappointed in the junior. Delivering performance feedback is acceptable if it is done in a professional, constructive, and objective way.

So, try to separate the method and the message. Was the hurt you are experiencing caused by the behaviour of the supervisor or did the comments hurt solely because you are made at yourself for missing something? Sometimes we realize that it is our interpretation of what happened that caused the distress and not what was actually said or done. If this is the case, dust yourself off and get ready for the next skirmish. But if the lawyer demeaned you, swore at you, yelled at you in front of co-workers, or engaged in other inappropriate conduct as outlined in your employer’s Respectful Workplace Policy, you may have experienced workplace harassment.

Bullying can also be a pattern of seemingly insignificant incidents that over time erode an individual’s self-respect. I once investigated a situation where toxic behaviour on the part of a group’s manager was alleged. Each incident itself was quite minor (grabbing things out of people’s hands, blocking the door of their office so they couldn’t leave, talking over people in meetings, asking inappropriate questions), but the impact over time exhibited the power of erosion that we see when a river cuts a new path through rock.

If you believe that you have experienced bullying, here are some suggestions about what you can do:
  • Write down exactly what happened in as much detail as you remember as soon as possible after the event. Remember the three important rules of practicing law: document, document, document.
  • Note the names of anyone who may have witnessed the incident.
  • Talk to a co-worker whose judgment you trust. For junior lawyers and articling students, I often recommend senior associates. Tell them what happened and the impact it had on you. Ask them if they know if other people have had similar experiences—this is so that you can assess whether this issue may have been raised previously. If you learn that juniors have been having issues with this lawyer for years, it could mean either that the behaviours have effectively been condoned by management, or it could mean that there are other individuals whose experiences would help show a pattern of conduct.
  • Investigate what support you need. Assist can match you with a peer support volunteer who has been through a similar experience, and you can see one of our professional counsellors for free (we provide 4 sessions per person per issue per year.) Both programs are confidential.
  • Call the Law Society’s Practice Advisors. They are a confidential resource and can provide you with legal advice.
  • If you are feeling strong despite the way you were treated, consider speaking directly to the person. If you choose to do this, you may want to consult with someone from HR so that you can frame your comments clearly and objectively, such as: “when you pointed your finger in my face and yelled ‘how could you possibly have missed this?’ I felt humiliated and frightened.”
  • If your firm has a policy, read the confidentiality section. You want to ensure that the fewest number of people will be informed of your complaint as possible. Ideally, it will be restricted to the person who receives the complaint, the investigator (or investigation team depending on the nature of the complaint) and the decision makers, as well as the direct supervisor or manager of the alleged harasser. This last part can be complicated in law firms where there are not clear lines of command.
  • Speak to the person who receives complaints and ask if you can discuss your situation before deciding whether to file a formal complaint (but know that if your issue could create legal liability for the firm, they may have a duty to investigate, and you can lose control). Consider asking whether complaints have been filed previously under the policy and what the range of outcomes was, acknowledging that they cannot share any confidential information. However, if no one has filed a complaint before or if no discipline has ever been meted out, be wary!
  • Consider whether you would like to participate in a less-formal resolution process if this option exists. There are situations where this is viable.
Then, if you feel comfortable, you may choose to file a complaint.

Sometimes people say that “everyone” must know that X is a bully. However, some workplace jerks are adept at kissing up while kicking down—this is one of the patterns of jerkdom described by social psychologist Tessa West in her recent book, Workplace Jerks. It’s a fascinating read, and it may be in your local library.

And what if your firm is small, doesn’t have a respectful workplace policy and the firm owner is the person causing the problem? We hear about these situations at Assist, particularly from articling students who are desperate to complete their articles so they can get called to the bar and then leave. In the absence of senior people in your firm who can help you, please consider calling the Practice Advisors for confidential advice or Assist for confidential peer support. You do not have to go through this experience alone. Our peer support volunteer roster includes lawyers who have experienced bullying, harassment or discrimination and were able to effect change in their workplace or to get to the other side through support and counselling.

Depending on the situation, you may receive support so that you can communicate your concerns to your employer, or you may be able to arrange for a facilitated discussion with a third-party facilitator. You may also want to explain, respectfully, to your employer that they are required to have a respectful workplace policy.  If your employer seems receptive, perhaps you could offer to help customize the Law Society precedent to show that you are allied in the interest of helping the firm be the best it can be (and ensure that training about acceptable behaviour is part of the policy rollout.)

The Law Society has recently introduced a new program aimed at assisting articling students who are frequently the most vulnerable groups in our profession. Read more about the Articling Placement Program and how students who are in untenable situations can be moved to cooperating law firms to allow them to complete their articles without discrimination or harassment. Equity Ombudsperson Susannah Alleyne is the contact person for articling students.

When you are experiencing bullying, harassment, or discrimination, it is not your fault. Do not twist yourself into a knot trying to justify why the person is acting the way they act—it is them and not you. Please call us. We can help.


P.S. If I were a confident applicant for a position at a firm or organization, I might ask whether supervising lawyers receive training in delivering performance feedback. Not all training takes the first time, but an organization that invests in improving its people’s management skills is on the right track.