In 1981, when I started my first job after law school at a large New York firm, I had no idea what to expect, and I plainly was ill-prepared for what I experienced. Until that point, all my hard work and nose-to-the-grindstone attitude were enough to be successful. However, being a good student, or even an exemplary one, was not what I needed most for success at a Wall Street firm. As I look back, playing a team sport growing up or taking on the schoolyard bully might have taught me more of the skills I needed than all those hours of solitary study.
Half of my class at Penn Law and half of the entering associate class at my new firm were women, so it had not occurred to me that being a woman would make it much more challenging to navigate the Big Law world. However, when I started at my first firm, it was a rude wakeup call. The most senior woman lawyer at the time was a mid-level associate, and the firm didn’t appoint its first woman partner until a few years later. Notably, the woman who broke that glass ceiling did not have children, and the same was the case for the second and third women to follow her into that vaunted status. In addition, when my entering class was considered for partnership several years down the line, my female peers and I were long gone, and all of our classmates who were elevated to partner were men. I know my story is not unique, as I’ve seen it mirrored through countless other women lawyers of all ages and backgrounds.
Despite the lack of female role models at the top, however, I did have excellent exemplars of courteous and civil behavior as a young lawyer. My colleagues across the board were bright, talented, and polished. They handled themselves with poise and professionalism. Although they did not model how to juggle family and work in the way I envisioned for myself (as most of their spouses were stay-at-home wives and mothers), they did model the highest standard of conduct. I am thankful for the example they set and the lessons I learned about how to be a vigorous advocate without sacrificing my integrity or my dignity. So why is this especially important for women lawyers?
Although most lawyers are generally professional and behave appropriately, the courtliness of Gregory Peck as Atticus Finch in To Kill a Mockingbird has yielded to a range of aggressive and demeaning behaviors (think Better Call Saul) that make life miserable for lawyers who themselves take the high road. A year ago, the International Bar Association released a report on bullying in the legal profession, which surveyed nearly 7,000 legal professionals from 135 countries. The results of the survey were disturbing, but not surprising to many. Roughly 1/3 of men, more than half of women, and almost 3/4 of non-binary respondents reported being bullied at work. Further, 40% of women and 32% of men reported that they observed others being bullied at work. Of the women respondents, more than half said they never reported these incidents for fear of retaliation, especially when the aggressor was a powerful partner or supervisor. On the flip side, of those who did report, the vast majority felt the employer response was either negligible or insufficient.
This mistreatment is not just a problem for women at private practice firms, but occurs in legal departments as well, including to those women who achieve the top slot of general counsel. In addition to being targeted in their own workplace, many women in house counsel report being mistreated and bullied by opposing counsel, and even by outside lawyers representing their companies who insult them, scream at them, and direct substantive communications to their male colleagues or subordinates. In-house women also report that, even as clients, their company’s outside counsel demean them with comments diminishing their reasons for moving in-house. According to comments reported in a Corporate Counsel article, “women go in-house specifically to take on a lighter workload because they can’t handle the pressures and family balance of law firm life.”
In the face of these challenges, how can women lawyers at firms and in-house effectively protect and defend themselves from this type of pervasive behavior? My previous article, Taking the High Road: How to Deal Ethically with Unethical Bullies, published in The Brief, deals with a range of situations that commonly arise in litigation, and shares my recommendations on how to respond in that particularly adversarial setting. Looking at this problem more broadly, I suggest women rely on the following tools to best protect themselves from bullies who overstep the bounds:
• Know the applicable ethical and civility rules for the jurisdictions in which you practice.
• Make copies and understand your workplace policies.
• Keep a journal documenting bad behavior, including citing the professional responsibility rules, civility code provisions, or workplace policies that the aggressor is violating.
• Call the offender out in writing, but don’t stoop to their level. Keep it professional, as you will lose – credibility if you do otherwise.
• Bring the offenses to the attention of your colleagues and seek their support. Observers of bullying, both female and male, suffer from the sidelines and may be willing to intervene.
• Consider going to the top of the bully’s organization, whether it is your own organization, opposing counsel’s firm, or elsewhere.
To provide one personal example, I once had an opposing lawyer tell me to “shut up,” embellished with profane language. After giving him a chance to apologize and behave, which was unsuccessful, I hung up the phone and emailed the senior lawyer at his firm on the case, stating what had occurred. After that, it never happened again, and the bullying stopped. If your efforts to put a stop to bullying using the suggestions above do not succeed, you may need to ask the court to intervene and seek sanctions. It is important to know the judge’s temperament and track record in dealing with lawyer-on-lawyer disputes. Some are more likely than others to take a stand; others may tell both sides to “play nice,” suggesting you are somehow at fault as well.
As a last resort, file a disciplinary complaint. In fact, you may have an ethical duty to do so under ABA Model Rule 8.3 or your jurisdiction’s counterpart. Of course, you can always phone or email a friend for advice. This is an open invitation to contact me if you are facing an untenable situation and want a sounding board. We are all in this effort together to create a more civil and professional practice of law to best serve our clients and protect one another.
Reprinted with permission from the May 15, 2020 edition of the American Bar Association’s Law Practice Today.