In the distant beforetimes, when we could be in the same room together, an international women’s day event was hosted by Bankside Chambers. At that event we were lucky enough to hear from Alannah Colley and Bridget McLay, coauthors (with Ana Lenard) of the Purea Nei report.
This was a great event, and so for those who couldn’t make it, we are publishing the introduction by Lady Deborah Chambers QC, and Alannah and Bridget’s speech here. We thank them for this work in progressing culture change in the profession, and we encourage everyone to get involved in this discussion.
Introduction – Lady Deborah Chambers QC
Haere mai, kia ora, tēnā koutou
I want to start by acknowledging the land and beautiful place we have come to. And to give my respect to the first people here and in particular the local iwi, Ngati Whatua. I express my gratitude for Ngati Whatua’s kindness in sharing this land with all who came after them and in being such kind and generous treaty partners.
So welcome all to this Bankside event to mark international women’s day.
A day we celebrate the achievements of women and the long path to equality we are still travelling. International women’s day has been held every year on 8 March since 1977, when the United Nations invited member states to declare a day for women’s rights.
This year our sisters marched in huge numbers in Santiago, Chile, celebrated in Syria, participated in Minsk, Belarus where the day is an official holiday, to attended a solidarity and women’s rights rally in Moscow, demanded equality through their union movement in Paris and gathered in Pakistan and Baghdad to mark the day. Photos of those events and more were featured in Guardian, and we’ll also send them a photo of this event.
So let’s be proud of our world wide movement. The most significant in our life time fighting for equality for over half the planet’s human population.
And we are still on our path. The recent social norm index completed by the UN development programme analysed data from 75 countries found that 91% of men and 86% of women hold at least one bias against women in relation to politics, economics, education, violence or reproductive rights.
Of course many of the women here won’t be shocked by those numbers because you live it. You experience it, you live it. We are all in this waka together.
And so we look closer to home in 2020.
A simple dipstick test is our large firms where so many young women graduates start their careers in law with bushy tails and end up slinking off leaving the profession forever.
Bell Gully has 30 partners, just six of whom are women. Chapman Tripp has a total throughout the country of 60 partners, just 17 of whom are women. The numbers are similar in most of the major firms.
It’s now two years since the Russell McVeagh scandal, and let’s acknowledge the issues are not unique to Russell McVeagh. They are not new and they are present in probably all legal workplaces.
What’s changed? Has it been lots of talk and little action as various commentators have stated? What needs to change? How do we change the long established and entrenched culture in our profession? In our backyards?
Well I’ve long been advocating chaining ourselves to the foyer of the Vero Centre until real change was made. But I didn’t get much uptake.
Tonight’s speakers went way beyond the theoretical. Allanah Colley and Bridget McLay, together with Ana Lenard, engaged directly with the legal profession with a particular focus on solutions for change. As a result, they produced their report in December 2019 – Changing the Culture of the Legal Profession.
So to introduce the authors. Ana Lenard unfortunately sends her apologies as she is unwell.
Allanah Colley is Assistant Crown Counsel at Crown Law, and with Ana Lenard she co-founded the NZ Women’s Law Journal.
Bridget McLay is a junior barrister at Shortland Chambers and has been deputy editor of the NZ Women’s Law Journal.
The project aimed to develop real world solutions for meaningful change – just what we need. So I ask you to welcome Bridget and Allanah.
Allanah Colley and Bridget McLay
E ngā iwi kua huihui nei, ngā mihi nui ki a koutou katoa.
Tēnā rawa atu a Lady Deb Chambers. Tēnā rawa atu koutou a Bankside Chambers. Tēnā koutou i ō manaakitanga mai.
Ko Allanah Colley taku ingoa. Ko tēnei Bridget McLay, ko tōku hoa. Ko matou ngā kaituhituhi o Purea Nei.
Tēnā koutou, tēnā koutou, tēnā koutou katoa.
Good evening. Thank you for being here today to celebrate International Women’s Day and discuss this important issue: what we need to do now to change the culture of the legal profession. We would especially like to acknowledge Lady Deb and the members of Bankside Chambers for inviting us to speak and for graciously hosting us this evening. My name is Allanah Colley, and with me is Bridget McLay. We are two punua rōia, young lawyers and together with Ana Lenard, we are the authors of the report Purea Nei: Changing the Culture of the Legal Profession.
Unfortunately Ana cannot be with us this evening and sends her apologies to you all. We would like to acknowledge her fantastic work and dedication to this project.
As another young woman, and US Congresswoman, Alexandria Ocasio-Cortez said: “Justice is about making sure that being polite is not the same thing as being quiet. In fact, often times, the most righteous thing you can do is shake the table.” In recognition of all the women who have paved the way in this profession before us, as well as those yet to make their mark, we three decided it was time we did what we could to shake the table. Our report Purea Nei, is just the beginning of that process.
Purea Nei, which means to cleanse or renew, brings together a collection of ideas from people within and associated with the profession to demand meaningful change to the longstanding issues that have made our profession an unsafe or unhappy place for many. In total over 700 people engaged in this project and we want to thank the Law Foundation, the Michael and Suzanne Borrin Foundation and the New Zealand Women’s Law Journal for making that possible.
Tonight, we will discuss the three key themes that emerged from this project and, hopefully, give you some ideas so that you can help us shake, break and re-make the table too.
THERE’S A LOT WE CAN DO IN THE WORKPLACE TO MAKE A DIFFERENCE
I’m going to speak to you about the first theme of the report, which is that there is a lot we can do within the workplace to make a difference.
However before I start I want to acknowledge that many people feel fatigue around discussing these issues. As part of this project have been talking about cultural issues with members of the profession intensively since 2018, and the issues weren’t new then. However, despite that understandable fatigue, it is crucial to keep the conversation going. The premise of the Purea Nei report is that conversations matter, and that by speaking to others about the change you want to see, you help bring that change about.
American feminist essayist Rebecca Solnit has said
Words bring us together, and silence separates us, leaves us bereft of the help or solidarity or just communion that speech can solicit or elicit. Some species of trees spread root systems underground that interconnect the individual trunks and weave the trees into a more stable whole that can’t so easily be blown down by the wind. Stories and conversations are like those roots.
By continuing the conversation we express our dedication to improving the culture of the profession and our determination, our expectation, that it must occur. So, thank you for listening and being part of continuing the conversation today.
On that note I will dive into the first theme of the report, which is that there is a lot we can do in the workplace to make a difference. We were fortunate to receive an incredible breadth of creative suggestions from participants on this subject. Rather than attempting to cover everything, I’ve chosen to focus on a few topics in more detail.
The first is diversity and inclusion. The overwhelming theme of participant responses was that they wanted to see genuine inclusion of diverse peoples. At our launch event last week, one of our Pasifika panellists recalled being told by an employer that she was “diversity without the risk”. In other words she was a desirable employee because, although she helped the firm fulfil its requirement to have a more diverse workforce, she was perceived as ‘behaving’ pākeha. In other words, in order to succeed, she felt she had to leave the diverse parts of herself at the door. Clearly this is a harmful thing to say to the employee. But it is also harmful to the employer. Approaching complex legal problems from different perspectives is a key part of producing good legal work. If diverse persons are encouraged to conform to a monoculture, employers lose the benefit of diverse perspectives.
Participants also suggested that employers re-think the mould of their ‘desirable employee’ during hiring, and consider how assumptions and practices applied during the hiring process may mean that employers tend to favour persons of a certain cultural background to the detriment and exclusion of others. For example, one suggestion was to shift the emphasis away from grades and academic performance during the hiring process, which tends to work against people from more communal cultures, whose family and community obligations might make it unrealistic to be entirely dedicated to achieving top grades. A focus on grades fails to account for other qualities the applicant may bring to the table, such as excellent interpersonal and relationship-building skills.
The second topic I want to address is flexible working, which was a significant theme in the report and in the panel discussion at our launch last week. Giving people the trust and freedom to work flexibly allows them to define work, and their relationship to it, in way that fits their values and lifestyles. Not only is this likely to assist with retention, it is likely to improve performance. Karen Chang, Head of Enforcement at the FMA, and Hayley Cassidy, Chief Legal Council at BNZ, spoke at our panel event a few weeks ago about how allowing their employees to work flexibly overwhelmingly resulted in better productivity and quality of work.
Revisiting the default 9-5 at the desk parameters of work is also likely to enable employers to build and retain a more diverse team.
So, how can we implement flexible ways of working in a meaningful way?
– Discussions should begin during the hiring process about how the employee wants to work, and how this might fit with the employer’s needs.
– Employers need to remove the stigma around flexible working. Karen Chang (of the FMA) suggested at the panel event that to do this, employers need demonstrate that working flexibly, or along different models (such as part time), is not a barrier to success in their workplace. Employers can do this by promoting people who working flexibly and/or part time into leadership roles.
– Give clients multiple touchpoints in your team, and make it clear to the client who the contact-person is and at what times.
– Trust and autonomy for the employee are key – the granting of requests to work flexibly should be standard, with declinatures explained with reasons.
Of course, every workplace is unique. Not all of the ideas discussed in the report will be suitable for every place of work. Indeed, some of the solutions suggested in the report contradict each other. What works well in one workplace might be totally inappropriate in another. The underlying principle that emerged from the report is that employees should consciously craft culture, and do so with a genuine open mind, and communication with employees is absolutely critical. Employers must consult with staff throughout and be genuinely open to hearing employee’s views, and acting on them. Further, culture change in the workplace is an ongoing process. Employers should take time to reflect, and consult with staff, as to whether changes are really achieving the desired results in practice.
I want to close with some remarks on what we as individuals can do. Whilst we believe responsibility for achieving cultural change does not lie with the individual, that is not to say that individual actions and attitudes have no power. Kindness, empathy, and respect towards our colleagues goes an incredibly long way. If we do better by each other, we can do better for the public.
BUT WE NEED REAL LEADERSHIP AND BUY IN FROM OUR CLIENTS IN ORDER TO ACHIEVE MEANINGFUL CHANGE
I’m now going to speak to the second theme of the report, which Ana would have presented to you, and again I want to acknowledge her work on this section of the report. The second theme that emerged is the need for real leadership, and buy-in from clients, in order to achieve meaningful change.
There has understandably been a significant focus on leaders and managers in discussions over the last few years. Leaders and managers can either help or hinder positive culture in the profession. It was fantastic to see that survery participants reported that their managers overwhelmingly displayed good qualities and not bad qualities.
One of the purposes of the survey was to find out exactly what those good qualities are. What makes a good leader in the legal profession? It was a strong theme that it was not enough to be a technically competent lawyer. Personal and professional skills were equally important. Good leadership qualities referred to by participants were:
- Integrity – being fair, just and inspiring
- Being caring and kind
- Being communicative – open and honest
- Being supportive – providing feedback, mentoring, being generous with time and advice
- Being accountable and responsible – a leader who invests in their managerment skills, protects and takes responsibility for their staff, falls on their sword and doesn’t throw others under the bus. Someone who holds their colleagues and their clients to account.
- Being self-aware – recognising and managing one’s own limitations and triggers
- Being courageous, leaning in to tough calls and difficult conversations
- Someone who is culturally aware and competent on diversity, inclusion, unconscious bias issues. Someone who makes inclusion a real priority.
I repeat that it was extremely encouring to see that many employees observed and admired these characteristics in their managers.
However, the survey also sought to understand what qualities in a leader might have a negative effect on culture, qualities to avoid. Broadly, these related to:
- Poor communication.
- A lack of trust and respect for employee views, and a tendency to dismiss employee’s interests and concerns.
- Being openly critical of other employees’ performance, which creates a culture of anxiety.
- Poor stress management, resulting in tension and outbursts.
- Failing to give any feedback, or delivering feedback in ways that are not constructive. Eg making criticisms without examples or advice as to how to improve.
- Self-interest – not being accountable for work done by their team, and positioning themselves in a way that reflects well on them but not necessarily their team members.
I want to emphasise that participants were entirely realistic about the pressures of legal practice – we all know there are peaks and troughs in terms of busyness and pressure. We are not aiming for perfection, but below-standard behaviour should not be tolerated and dealt with appropriately, including by apologies if necessary. Legal workers are entitled to expect good leadership as the general standard.
We also asked survey reponsdents what things managers can do to ‘lead from the top’, in other words, how can leaders actively craft culture? Displaying the characteristics I mentioned earlier is obviously a great start. Survey respondents also pointed to the need for managers to model the behaviour they expect of employees. If a manager stays late most nights, rarely takes leave, and has little time for priorities outside the law, staff are likely to feel that the same is expected of them. So, leave on time when possible, work flexibly when the circumstances permit it, and be vocal about your interests outside of the law. Participants also appreciated vulnerability and honesty in their leaders, as well as a sense of fun and a conviction that work can and should be enjoyable.
And, when implementing any of these measures – think about and monitor potential unintended consequences e.g., if modelling flexible work, is it falling on your juniors to pick up the slack? Are you creating a perception that flexible working is only available to those in senior positions? These unintended consequences can be managed with clear and open communication with employees, and a willingness to modify the approach.
Obviously it is all very well to say that leaders should possess and model certain qualities. However, there are dynamics within the profession, particularly the partnership model, that tend to place fee-earning capacity at the centre of assessments of performance, often at the expense of other considerations, such as management skills. The result is that those who obtain leadership positions, while they may be great technical lawyers, don’t necessarily thrive when managing other people.
Survey respondents stressed that management capabilities ought to be a key consideration when promoting people into leadership positions. Staff wellbeing and retention should be a key performance indicator. Obviously that requires mechanisms by which employees can give feedback. That feedback should be constant – not a one-off opportunity when promotion is being considered. Feedback may need to be anonymous to encourage forthrightness. Honesty must be encouraged, and not regarded as trouble-making. And, as Karen Chang pointed out at our recent panel event, there need to be alternative positions and success pathways for people who posses great technical skills but do not have an aptitude or appetite for people management. Training in people-management is also key, and Allanah will speak to aspects of that in a moment.
Finally I want to make some brief remarks on how clients can influence culture.
Clients are not oblivious to issues around overwork and poor culture in legal workplaces, and there are plenty of clients who are concerned to instruct people and firms who demonstrate good culture and create happy, healthy workplaces for staff. At our recent panel event Hayley Cassidy, Chief Legal Counsel at BNZ, and Karen Chang, Head of Enforcement at the FMA, both regarded workplace culture as important considerations when selecting legal representation. Clients can also help promote good culture by setting reasonable expectations and distinguishing carefully between urgent and non-urgent work.
However, client expectations must not be used as an excuse. Ultimate responsibility for managing client expectations lies with the lawyer in charge. Clients often do not possess the expertise to assess the time and effort required to complete an instruction. They may believe their expectations are reasonable because their lawyers have encouraged that expectation. It is up to the lawyer-in-charge to set expectations that will ensure staff wellbeing, and if the survey responses are anything to go by, leaders who do so will earn respect and dedication from their staff.
AND WE NEED PROPER EDUCATION AND EXTERNAL HELP
Purea Nei has reminded us that we can’t shift the culture of an entire profession on our own: we need proper training, education and external help.
Participants were overwhelmingly in favour of frequent and appropriate training at all levels of a person’s career to help resolve culture issues – at university, at work and at professional development courses. We already have rigorous requirements and ongoing training for lawyers: our existing mechanisms and career milestones provide a perfect opportunity to educate and reinforce a positive culture.
Training needs to be self-referential and allow people to explore and unpack their biases, and it needs to equip people with the right skills for dealing with difficult situations and conversations.
Unconsious bias training is only the starting point. Some other ideas suggested included:
- Specific training about bullying and harassment, how to recognise it, how to combat it, have difficult conversations and intervene as a bystander;
- Training on how to manage and support people effectively as well as leadership training for everyone (not just partners/senior practitioners)
- Emotional intelligence training
- How to deal with difficult clients
- Training about the power dynamics that exist and how to combat these
- How to model inclusive behaviour, what racism is, how it manifests and how to become anti-racist, and the importance of tikanga and Te Reo to our legal system and society; as well as
- Training on wellbeing in your career, mental health and strategies to increase resilience.
But, training cannot take place in a vaccum. It will only be valuable when it is free and easily accessible, when it is offered by a range of providers (including the Bar Association, regional law societies, and other prominent lawyers’ associations), when it is matched with increased support from employers for their staff to attend training during work hours, when workplace policies and chambers agreements reflect the principles taught to our people, and when individuals are held to account for acting contrary to expected behavioural standards both by their employer and the Law Society.
Training cannot be implemented in isolation or in an ad hoc manner. It is also important that it is available to all staff, and that non-legal, administrative and business development staff are also supported in their professional development.
We also need support and external accountability. Our participants routinely expressed dissatisfication with the effectiveness of current procedures for managing bad behaviour, both by employers and external organisations. Many comments were made about the lack of independence of HR teams within law firms and companies with in-house lawyers. In smaller legal workplaces, courts and barristers chambers, HR teams and functions are often minimal or non-existent.
In order to better support staff in larger workplaces, participants identified the need for anonymous reporting avenues; 360 degree performance reviews; exit interviews that are anonymously shared with employers and where issues raised are actioned on; offering independent and paid counselling; available support people within and outside HR teams; buddy schemes across various levels of seniority; and feedback on performance of HR and management.
A range of external mechanisms were also suggested to provide independent support for smaller workplaces, as well as for all members of the legal profession. These included: mediation services or external HR consultants to be offered by the Law Society; more external buddy or support systems on top of those already in existence; trained external contact points at other workplaces where reciprocal support is provided to staff; as well as online platforms through which inappropriate behaviour can be reported and monitored.
The Law Society was also seen as crucial for shifting culture. The Law Society has already launched several reports and initiatives and we acknowledge these important steps. However, many of our participants wanted to see NZLS playing a greater role moving forward to hold individuals and employers to account, as well as to support our community to lead by example.
One idea that was repeatedly endorsed was the Law Society taking responsibility for auditing legal workplaces or enforcing mandatory reporting obligations on legal employers. Over 300 participants considered an “HR audit” was necessary, the purpose being to have an open, transparent means of holding workplaces to account for preventing and responding to behavioural issues, as well as a way to measure different workplaces against each other. An audit could function both as a source of information for prospective employees, as well as an incentive for employers to proactively confront issues of bullying, harassment, overtime, burnout and stress. As the independent regulator of lawyers, many participants felt it was obvious for NZLS to run an auditing initiative.
Participants were also keen to see disciplinary processes strengthened, NZLS-led training increased in key areas, NZLS spearheading research into alternative models of practising law, as well as modelling best practice and supporting employers to do the same.
The ideas we have discussed tonight are only the beginning. We are sure you have many ideas of your own, and there are many more within the report (so you’ll have to go read it! See womens law journal website). We encourage you to be bold, courageous and not to be afraid of shaking the table.
No reira, tēnei te mihi ki a koutou i āta whakarongo ki ngā whakaaro nei. Ngā mihi nui kia koutou katoa.