Don't expect lawyers to report their bullying and sexual harassment

Dear Malaysian Bar Council President, Mr Salim Bashir.

In response to a group of young lawyers who presented a petition of 4,254 signatures claiming a culture of fear prevented them from speaking up on sexual harassment, low pay and other working conditions, you said:

“As lawyers and professionals, the victims must be brave enough to come forward and not suffer in silence.”

The young lawyers had made it clear that there was a culture of fear that prevented precisely this, and it is this culture that you should look at.

I invite you and every senior lawyer to think back on your first year in practice. How were you treated by other senior lawyers in your firm, in court and across the negotiating table. Some were welcoming, but quite a number were unapproachable and arrogant.

Imagine if one of them were to sexually harass or bully you, would you:

A. Brush it off, because "this is how legal practice is and I must put up with it." Even though deep inside, you are hurting, perhaps terrified. But you keep your pain to yourself.

B. Tell your master or your boss (and what do you think they'd say?).

C. Tell your friends or peers - who in turn remind you how senior this lawyer is and warn you of the career limiting move if you report.

D. Report it to the Bar Council, confident that they will take you seriously, ensure anonymity, act discreetly, protect you against any backlash and ensure no conflict of interest throughout the process.

I'm really curious as to whether anyone will pick D. Because I wouldn't - even though I do advocate speaking up!

It isn't as straightforward as coming forward and reporting.

The Prevailing Toxic Culture in the Profession

Most young lawyers join the profession with the expectation that they will stay for a long time. The International Bar Association's report, US Too: Bullying and Sexual Harassment in the Legal Profession showed that 65% considered leaving because they feared repercussions and that the incident was endemic at work.

The survey of over 8,000 lawyers around the world showed that 1 in 3 men and 1 in 2 women are bullied, while the sexual harassment figures disproportionately impact women lawyers: (1 in 3 women, 1 in 14 men).

Malaysia hit the top quartile when it comes to workplace bullying. It was average worldwide when it comes to sexual harassment though that should hardly be a cause for celebration.

This means bullying and sexual harassment is endemic, and pretty much normalised. Harmful behaviour is excused. It's not uncommon for young lawyers to join a firm, only to be warned about some of the senior lawyers - whether they have a tendency to sexually harass or bully. Instead of firms dealing with these lawyers and protecting their people, people are expected to tip-toe around them. Some international law firms have fired senior partners for sexual harassment. This has yet to happen in Malaysia.

Power Dynamics and What we Do to Ourselves

Hierarchy in the Malaysian legal profession is strongly felt. When I was a young lawyer about to meet an opponent for the first time, we'd quickly skim through the legal directory to see when the lawyer was called to the Bar and how senior they were to me. A common question when meeting lawyers is, "how long have you been in practice?" I quickly sussed that this was to work out where you stood in the hierarchy, to assess whether they had to respect you or could intimidate you. I confess as I progressed up the ladder, I played this game too, cutting lawyers down to size.

Notice I used the word "game". We saw other lawyers as precisely that... opponents to defeat. Not humans with feelings. The culture is one that is combative and when you're in it, it's easy to lose yourself. The thrill of scoring a point over the other at any cost. I only realised this after I left the profession and joined the gentler, kinder world of Oil and Gas. While I enjoyed being in the legal profession, I don't think I liked who I turned into.

I was at the launch of the IBA report in London last year, and Simon Davis, current president of the Law Society of England and senior partner with Clifford Chance said something that really hit home. I'm paraphrasing here, but in describing how distant lawyers could be from their feelings, he would ask his partners when discussing how junior lawyers felt: "what was the look on their face when they left your room?"

Too often lawyers rely on what was said... "well he didn't tell me he was uncomfortable," or "she didn't say stop." But we ignore facial expressions: the hesitations, the look of discomfort or doubt and what is not said. It's not that we are oblivious - we use these observations to win arguments but not to safeguard.

In pupillage, a pupil learns from a master for nine months before being called to the Bar. Let's just pause here and think about what the word "master" connotes. While steeped in traditions and revered by the legal profession around the world, we need to admit, "master" is at complete odds with concepts lawyers like to preach to non lawyers, such as equality.

Then there is the seven year rule - it might have changed a little now, but in my time, a lawyer under seven years practice couldn't even officially join a committee under the Bar Council, let alone stand for office. In a law firm you were a pupil, associate, senior associate, and various levels of partner. Some firms are more progressive and do away with too much hierarchy, but many firms keep the layers.

When I was an in-house lawyer (having gotten used to engineers, who are far more egalitarian), dealing with practising lawyers would remind me of the culture I had left behind. The younger lawyers were mainly silent and the partners would do all the talking. Once the partner was gone, my team would discover how bright the young lawyers were - and we'd spur them on. Unbeknownst to their bosses of course. We still remained stunned each time we'd ask a young lawyer a question in a meeting, only to see them be shut up by their partner. Looking back, I wish I'd intervened more, but at the same time, I didn't want to make things worse. Needless to say, some firms didn't get our work because of how they treated their younger lawyers during pitches. I didn't want them to treat my colleagues that way.

Pre-requisites of Creating a Speak Up Culture

If the Bar Council President is serious about encouraging young lawyers to report harassment, he first needs to look at the culture in the Bar and the processes currently in place. Do they meet the pre-requisites or are changes required?

Note: While these questions are directed at the Bar - they are just as valid in any industry and organisation.. most still struggle with this. So no blame - we can all improve!

1. Safe Space - No retaliation, supportive, no victim blaming

Sexual harassment and bullying are personal and often traumatic. It is hard enough to process it for oneself, let alone coming forward and reporting it. I've coached victims through the years and the first thing I advise before they report is to get a strong emotional support system in place because it's a long and often draining process.

Even the best employers can get it so wrong when it comes to responding to a person who has been sexually harassed. What HR may think as a relevant question, can be victim blaming.

Questions like, "why didn't you say no?" When being harmed, our Fear, Fight, Flight mechanisms kick in and most of us are unable to make sense of what is happening when it is happening. How often do you look back and wish you said something - but at the time you just couldn't!

We need to change the conventional process focus to a victim focus response and support.

I made the video, What Do You do When Someone tells you They're Harassed to highlight the do's and don'ts in responding when someone tells you they were harassed.

I don't know if the Bar has a No Retaliation Policy. All organisations should have one and make it known. What will the Bar Council do if a person faces the following after reporting harassment?

• increased harassment by the lawyer concerned or other lawyers in the firm or fraternity, including online harassment;
• threatening non confirmation (if a pupil), hinting that they should find a job elsewhere, giving them meaningless tasks instead of career advancing assignments, removing them from cases;
• isolating them by ignoring them at work, not giving them cases, excluding them from work events and meetings, encouraging other lawyers to exclude them;
• gossiping and spreading negative comments about the person's work and performance, within and outside the firm, which impacts their employability;
• mobbing, making their work life unbearable by giving them impossible deadlines, withholding information making their tasks more difficult, micro-managing, nit-picking, criticising their work with no attempt to guide or improve them;
• disrespecting their work life balance, contacting them when sick or on weekends (unless urgent), setting non urgent deadlines at unreasonable hours, disregarding the person's concern for physical safety, especially in light of Covid-19.

Has the Bar Council made it clear that it will act against its members who retaliate?

We've already seen several backlashes against sexual harassment victims - even played out on social media. When other young lawyers see this, they fear the same backlash and decide it's better to stay silent.

Even without overt harassment, the covert pressure can be overwhelming. When so called well meaning lawyers tell the victims:

"He has a wife and kids. Have you thought about them?"

This makes the victim feel like a villain, as if it's their fault for making the offender's life miserable.

"Let it go, this happens all the time."

This normalises the behaviour and makes the victim feel that they don't belong in the profession if they can't deal with what "happens all the time."

"Hey that happened to me too, but I didn't get all upset."

This minimises what the victim has experienced, telling them that they are not tough or good enough for the profession.

When a person is already feeling vulnerable, these statements add further harm. Psychologists familiar with harassment have described this as compounded trauma. Not being believed or supported, especially by people you trust (and that includes employers) is a form of institutional betrayal.

2. Trust

To report, a person needs to trust the institution and the process. Confidentiality is paramount - including the identity of the parties. Unfortunately, the Malaysian legal profession has a gossiping problem, and victims aren't assured that their reports won't reach the ears of their bosses or anyone in their firm. They fear adverse repercussions towards their legal career and this is borne out by the IBA Report (globally).

Are the people who receive a report, investigate it, and disciplinary board members required to sign NDAs?

How are conflicts dealt with? What if the alleged harasser is known to be close to a member of the disciplinary board? Conflicts of interest don't have to be actual... perceived conflicts affect trust too.

What steps are taken to ensure names are protected?

How does a person make a report and how is the report safeguarded? Does it meet personal data protection laws?

I know of a case where the Bar made a statement about the leak of an alleged harasser's name and requested that victims not resort to social media. The reason why victims do so, is because they no trust in the institution acting on their case. #MeToo happened because for too long, employers and organisations ignored their harassment, or worse, tried to cover it up.

To gain trust, a person needs to know what will happen when they do report. Are members of the legal profession clear as to how the process works? If they do report to the Bar, it's already pretty serious - we are talking about disciplinary action against a member. Yet a lot of harassment should and can be resolved at source - by the firms themselves - without the need to consider whether a lawyer should be disbarred.

The Bar should be looking at law firms and instead of putting the onus on victims to report, put the onus on law firms themselves: what are they doing to ensure a healthy working culture?

3. Leadership and Accountability

It's easy for a firm or company to deny harassment claims. Indeed it's the default reaction for many organisations and crisis communications experts warn against it in the "cancel culture" environment. It's far braver to acknowledge that there are some issues and to thank lawyers for reporting their cases. The flip side of institutional betrayal is Institutional Courage and this is what we should all aspire to.

A number of industries, including Oil and Gas, encourage a reporting culture when it comes to safety violations. When accidents happen or serious near misses are reported, the organisation investigates on a no blame basis - and examines the root cause: often human and leadership. Leaders see this as powerful learning. Or an individual level, this can be painfully introspective and they transform. In Oil and Gas, where death is a possible outcome - learning and transformation is vital. I've seen grown men break down upon questioning themselves, after a fatality. I haven't seen this depth of introspection in the legal profession.

Lawyers might think they're not killing anyone. But there are suicides in the profession. Bullying, sexual harassment, a toxic and fear culture impacts mental health leading to anxiety, depression and in the case of French Telecom... suicides. Three senior executives, including the CEO were jailed for causing a toxic culture. In this video I refer to a Deloitte study which connects workplace bullying to mental health.

It's time for law firms to ask themselves seriously - do they want to ignore the harm their lawyers are facing, or reflect on what they can do to improve their culture. In case anyone thinks I am out to "get the harassers"... not at all. A few months ago, Michael Banks interviewed me in PeopleSmart's Leadership Luminaries series: Can the Bullying Leader be Redeemed? The TLDL (Too Long Don't Listen) response is Yes, because I was one.

I wrote about my personal journey in Confessions of a Harasser.

Don't rely on the victims to report sexual harassment and bullying. Focus on the culture of fear.

I am a "retired" lawyer and am proud to have come from this profession, particularly the Malaysian Bar, reputed worldwide, for its courage on upholding democracy and justice in the face of immense pressure, harassment and bullying by government institutions. It's time to uphold justice and kindness among our own, the next generation of lawyers who will take up that mantel.

I was called to the West Malaysian Bar in 1994, and a member of the Kuala Lumpur Bar Committee in 2002/3. I now reside in the United Kingdom, running Speak Up At Work, and co-founded Speak Up Academy - a global online community of experts and change-makers on speaking up within organisations.

For people who have been harassed at work, discover how you can reclaim your power and career by Defeating Harassment at Work

In Speak Up Academy, we have had a series of conversations with experts on toxic work cultures and toxic leaders, and Speak Up provides support to organisations that are serious about transforming toxic cultures that may exist in some teams or key individuals. DM me if you want to know more.