Bullying still way too commonplace in Australia’s legal profession

The prevalence of bullying in law (and its likely evolution since the onset of the global pandemic), together with the astronomical costs associated with such workplace misconduct, remain a significant concern for the profession.

Leaders have recently been urged to address bullying claims in the workplace – as, since the introduction of anti-bullying legislation 10 years ago, not much has changed.

In September this year, Colin Biggers & Paisley partner Megan Kavanagh said that in recent years, the shift to online work and changes in communication methods could give rise to increased bullying.

“Workers’ compensation regulators across the country have reported increases in claims for psychological injuries,” she said.

“The cause is unclear: is it the pandemic’s contribution to changes in the way we work? Is it flexible and hybrid working arrangements, the impact of technology and FOMO (fear of missing out) approach to digital solutions undermining our resilience and coping strategies, including connecting with people, sleep and outdoor time? The reasons for an increase in claims for psychological injury [are] complex and multifaceted.”

Back in 2019, the total cost of bullying at work in Australia was estimated to be up to $36 billion per year. That same year, the International Bar Association published the Us Too? Bullying and Sexual Harassment in the Legal Profession report, which revealed that levels of bullying and sexual harassment in legal workplaces in Australia were “significantly higher” than the global averages.

According to that report, Australian legal workplaces were “ahead of the international average” when it comes to hosting anti-bullying and sexual harassment training, with 37 per cent of Australian respondents at the time saying their workplace hosts such sessions, compared to 22 per cent globally. Despite this, respondents at workplaces with training in place were more likely to have reported incidents of bullying and more likely to have used internal workplace channels to do so.

This came after Lawyers Weekly reported that 73 per cent of female respondents from Australia and 50 per cent of Australian male respondents reported having been bullied in connection with their legal employment.

In addition, 47 per cent of Australian female lawyers and 13 per cent of our male lawyers reported such misconduct.

In 2022, the IBA also released Beyond Us Too? Regulatory Responses to Bullying and Sexual Harassment in the Legal Profession, which explored the actions of legal regulatory and disciplinary bodies across the world to uncover and prevent this behaviour.

“The legal profession’s harassment problem is endemic, cultural and societal. This means that regulatory and disciplinary bodies alone cannot eliminate the problem; the profession’s leaders, individual lawyers, law-makers and professional associations will all play an equally important role in achieving this objective,” the foreword of that report stated.

So, has this issue improved at all? In 2023, as reported recently by HR Leader, 50 per cent of Australian workers have experienced being bullied, harassed, or exposed to conflict or inappropriate behaviour, according to the Australian Workers Union (AWU).

The findings accord with similar research by Safe Work Australia (SWA), which concluded that rates of bullying in Australia are “substantially higher than international rates”.

Following this news, Lawyers Weekly created a poll on its LinkedIn page, asking Australian lawyers if they had ever experienced bullying in the Australian legal profession.

Poll results

The results of the poll are as follows:

The results show that, of the almost 800 legal professionals that responded, the majority (72 per cent) of lawyers said they had been bullied in a legal workplace, with only 28 per cent saying they hadn’t.

The LinkedIn poll is, of course, not a scientific study and should not be taken as such. However, it does offer an insight into the mindset of Australia-based lawyers and how prevalent bullying may still be in the profession.

In conversation with Lawyers Weekly, Law Council of Australia president Luke Murphy said that polls like these are “very important to be able to quantify and understand the extent of the problem within the profession both currently and over time”.

“The Law Council has a zero tolerance for bullying and is committed to ensuring that all members of the legal profession are treated fairly and respectfully,” he said.

“While the question provided is very broad and does not provide a time frame of when the bullying occurred, its findings that nearly three-quarters of respondents have been bullied is highly concerning and reinforces why work to prevent bullying and support those who have been victims of bullying must continue.”

In response to the poll, Coaching Advocates professional coach John Poulsen said that while he had been bullied early on in his career, bullying was (hopefully) not as prevalent now – and that the poll results could reflect historical bullying in addition to more recent incidents.

“I am not surprised with the results of the poll because it has no time limit on it. I started my career in the legal profession in the early 1980s and was certainly bullied in the early part of my career, but not so much later on,” he told Lawyers Weekly.

“I hope that if the survey had also asked the question ‘Have you been bullied in a legal workplace in the last five years?’, the percentage would be significantly lower, but I have always lived in hope.”

However, bullying can also come in many forms – earlier this year, lawyer Stefanie Costi opined what this issue means today in law.

“Verbal and psychological abuse are not the only instruments of torment in our revered profession. Undermining and exclusion silently erode trust, belittle contributions, and sabotage any chance of success,” she wrote.

“Imagine partners deliberately averting their gazes in the corridors from those they supervise, lawyers cruelly instructed to maintain distance from secretaries, or paralegals cast aside and their worth questioned until they achieve admission. Picture a senior exhibiting ruthless favouritism towards one associate while disregarding another, starving them of any guidance and mentoring. Envision the perpetuation of an archaic boys’ club that shuts out female colleagues from conversations. And the soul who was frozen out while serving out their notice period after being headhunted.

“Bullying can also escalate into relentless harassment. Sexual harassment, offensive remarks, and discrimination based on race or sexual orientation tarnish the professional boundaries that should safeguard our work environments, stripping victims of their safety and dignity.”

Impact of bullying on mental health in the profession

Post-pandemic, poor mental health is an issue that the legal profession is all too familiar with – and by 2025, it is estimated that the pandemic would cost the NSW economy alone up to $7.4 billion in mental health and depression disorders among workers. New definitions of concepts like psychosocial hazards have also come into play within the profession in recent years, along with new legislative changes around mental health in the workplace.

The likelihood of a “very significant correlation” between bullying and the impact of mental health in the profession is also extremely high, according to Mr Poulsen.

“The legal profession is often characterised by high pressure, competition, and stress, which can create an environment where bullying behaviours may thrive,” he said.

“Bullying in legal workplaces can include overwork, intimidation, harassment, or belittlement. It’s often underreported due to fear of reprisal or career implications.”

Bullying can also cause stress and anxiety at work, increased risk of depression and burnout and can impair people’s ability to perform effectively, impacting judgement, decision making, and productivity.

“The Law Council recognises that mental health problems and mental illnesses are prominent in the legal profession. Research, while limited, suggests that lawyers experience certain mental health problems at rates higher than the general population,” Mr Murphy explained.

“Studies have attempted to isolate the cause of lawyers’ mental ill health and found there are many factors, including job demands, lack of work/life balance, and the impact of vicarious trauma. Bullying, harassment and sexual harassment have also been connected to mental ill health.”

More work to be done moving forward

One lawyer-turned-workplace-investigator believes that workplace bullying in the legal profession, and subsequent issues with reporting, has worsened since the onset of the age of coronavirus. Two Sydney-based barristers have also described bullying and other forms of misconduct in the profession as the “other pandemic” – and particularly damaging for mental health.

This is only worsened by what two sole practitioners described as a “code of silence”.

“My personal and anecdotal experience, after 12 years in the law, indicates that there is a code of silence that exists, particularly regarding bullying behaviour. This is often insidious and subtle as part of the hierarchical and traditional nature of law and occurs for a variety of reasons. Largely, this code of silence exists out of fear of a loss to reputation and a fear of litigation,” Tiernan Family Law director Julann Tiernan told Lawyers Weekly last year.

“It is important to understand what constitutes bullying and the impact of this type of behaviour on victims and a firm’s culture. The effect of bad and bullying behaviour on productivity and staff turnover can be significant, and an understanding of this commercial impact on a firm can assist in management taking a more active role in stamping it out.”

This sentiment was echoed within the Beyond Us Too? Report, wherein a standalone regular said that “some of the barriers to addressing bullying and/or sexual harassment in the profession are deeply rooted in its cultural and/or structural elements”.

“Approximately 80 per cent of the profession is self-employed, and chambers may lack [human resources] and other structures to support their members in relation to bullying and sexual harassment. The profession is small and reputation-based. Barristers typically rely on clerks and solicitors, who are not regulated … for their instructions. Senior or influential members of the Bar, and judges, can also influence barristers’ reputations.

“Pupil barristers and very junior barristers are particularly vulnerable, as they rely on senior members of the profession to train them, lead them in cases and, in the case of pupil barristers, recommend them for tenancy. Most barristers do not formally report their experiences due to the fear of a negative impact on their reputation and career progression. Instead, they prefer to talk to their friends, family or peers, which leads to the lower levels of formal reporting. Also, the range in frequency and seriousness of the incidents, implies a complex picture of bullying and harassment at the Bar, which can be hard to identify, define and record,” the regulator said.

“These factors, and others, make it very difficult for many members of the profession to even talk about, never mind report, bullying and sexual harassment. Many practitioners are concerned that doing so would have an adverse impact on their reputation and practice. These concerns are likely to be greater for the most junior members of the profession.”

To mitigate these issues properly in the profession, Mr Poulsen said “it all starts with leadership” and creating a supportive and positive culture within firms.

“An easy starting point for leaders to consider was developed over a decade ago by the Tristan Jepson Memorial Foundation [now called the Minds Count Foundation], which developed the Best Practice Guidelines.

“The TJMF Guidelines provides a road map for change and covers organisational culture, psychological and social support, clear leadership and expectations, civility and respect, psychological competencies and requirements, growth and development, recognition and reward, good involvement and influence by staff, workload management, engagement, balance, psychological protection and protection and physical safety,” he said.

“The sad thing is that many years ago, significant numbers of firms signed up to the TJMF Guidelines, but I am not sure that they actually followed through with implementation.”

Proactive mental health initiatives also play a “very significant role in mitigating the negative impact of bullying in the legal workplace” – and can include awareness and education around the signs of bullying and its impact on mental health, establishing support systems to “provide lawyers with the necessary tools to cope with workplace bullying”, implementing clear policies and “fostering a collaborative rather than competitive work environment”.

In addition, the Law Council of Australia and state associations, including law societies and bar associations, have a range of resources designed to help workplaces identify and stamp out bullying and to assist lawyers and barristers impacted. This includes the Law Council’s mental health and wellbeing portal, which provides a centralised source of information about mental health for the legal profession.

“While there is still work to be done, the legal profession in Australia has been proactive in trying to promote and improve mental wellness and remove any stigma that may have discouraged individuals from seeking support in the past.

“The Law Council believes improving mental health and wellbeing within the legal profession requires a tiered approach. First, proactive approaches that encourage good mental health practices as the best defence against mental illness; second, reactive approaches that provide easily accessible services for lawyers suffering distress or a mental illness; and third, focused approaches that provide support for lawyers who experience trauma in their day-to-day work, such as those working in family law, criminal law or as part of the judiciary, or tailored ‘de-briefing practices’ after particularly heavy work periods,” Mr Murphy concluded.

“At the firm level, employers are stepping up and undertaking actions such as engaging in-house clinical psychologists to advise on workplace changes and initiatives to improve mental wellbeing in their workforce.”

This article was originally featured in HR Leader’s sister brand, Lawyers Weekly.