The Law Society's #MeToo (But Not Just Yet) moment

by The Listener / 26 April, 2018

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The Law Society is investigating a female lawyer, but silent about how it’s dealing with sexual misconduct matters.

There have been sporadic displays of public penitence from the legal fraternity following multiple revelations of sexism in prominent law firms, but for the Law Society, it seems the hashtag is #MeToo-ButNotJustYet.

On one hand, it is conducting an investigation of a female lawyer’s apparently fair public critique of a judge’s comments that seemed to minimise a serious domestic assault; on the other hand, it refuses even to say whether complaints have been laid against several male lawyers for the rather more serious matter of sexual misconduct, let alone whether it will be investigating them.

The secrecy card is a handy but somewhat overused mechanism in the society’s rules, but it’s hardly the right one to play in the present circumstances. At a time when the profession’s reputation has taken a massive blow from multiple reports of sexism and bullying of women, from the most junior to the highest levels, it’s hardly helpful that we can’t be told whether the society’s national standards committee – which can stop lawyers practising for serious misconduct – is even on the case.

We know about the complaint against lawyer Catriona MacLennan only because she went public about it herself; doubtless a beady-eyed colleague will complain to the society about that disclosure.

This is a profession that isn’t doing nearly enough to help re-educate itself and restore public confidence. No reasonable person expects the men accused of misconduct at Russell McVeagh, and possibly other law firms, to be paraded and tried in public. Nor should they even be named at this stage, since none faces a criminal charge. But the society’s continued blanket secrecy creates an impression that the wagons are circled around the men – while, as chance would have it, a vocal woman critic within the profession is facing the works.

The Law Society’s decision to formally investigate MacLennan at all suggests the tendency to treat men and women differently is both deep-seated and reflexive. She called for a district court judge to be removed after he let a man escape conviction on charges of assaulting his wife, her suspected lover and his own daughter, on the grounds that sexual jealousy was a sufficient justification for the assault.

MacLennan was far from the only citizen shocked and dismayed at Queenstown District Court Judge John Brandts-Giesen’s decision – which included the observation that “this is a situation that does your wife no credit and does [the male] no credit”.

Most New Zealanders would regard the view that the suspicion of infidelity was a sound excuse for assault as a disturbing one if it were expressed at the water cooler or a dinner table; coming from a judge, it was indefensible. Police are reviewing the sentencing decision.

MacLennan’s response was at the harsh end of the many other criticisms made, but she made a reasoned argument to support the call.

The Law Society’s rules do not preclude lawyers from publicly criticising judges; they require that comments be expressed in a reasoned and objective manner, without being personal or destructive and without undermining the operation of the court. It wouldn’t take a highly trained legal mind to conclude that MacLennan’s comments were an attempt to protect the court and its reputation, given that this judge had erred so badly.

MacLennan is a long-time campaigner against domestic violence, and it may be that her high media profile has irked some seniors in her profession. It’s not pleasant to hear one’s profession criticised from within, even within the scope of fairly held opinion, and it’s important for the judiciary to be protected from intimidation. The renewed campaign of aggrieved fathers personally targeting Family Court judges and advocates is rightly deplored by lawyers, police and politicians. But there is no rule, law or even convention that a judge’s very tenure is beyond public question. Many New Zealanders would be uncomfortable that thus far, no reappraisal of Judge Brandts-Giesen’s suitability has been officially considered; nor has he done anything publicly to atone for or redress his errant decision.

As a professional body, the Law Society cannot hold itself remote from culpability in the long-term development of a sexist culture in law firms. Nothing illustrates that more plainly than its unhealthily defensive default setting. It is now hearing from lawyers male and female, both in support of MacLennan and demanding urgent action to change the ugly culture pervading so many firms. It’s time it updated its approach accordingly.

This editorial was first published in the May 5, 2018 issue of the New Zealand Listener.

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