For Women in Law By Women in Law

Old topic, shared perspectives. Sexual harassment of women in law by clients. How the Us Too report has reinvigorated the conversation.

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Moderator:

Kim Jakeman, co-founder, Life in Law

Panelists:

Cynthia B. Kuehl, partner, Lerners

Sheila E. Caston, QC, partner, McKerchers

Lindsay Johnston, associate, Harper Grey

Mandeep Gill, associate, Harper Grey


Kim:  Good morning everyone, and welcome to our first virtual Life in Law panel discussion. For those of you that don’t know me, my name is Kim Jakeman and I am the co-founder of Life in Law. It is my great pleasure to moderate today’s panel and to welcome you to this event.

Our panel includes Cynthia B. Kuehl, partner with Lerners in Toronto, Sheila E. Caston, QC, partner with McKerchers in Saskatoon and Lindsay Johnston and Mandeep Gill, associates with Harper Grey.

To begin, I’d like to put our discussion into context; in May 2019, the IBA released “Us Too? Bullying and Sexual Harassment in the Legal Profession”, the largest ever global survey on bullying and harassment in the legal profession. The survey results included that 1 in 3 female respondents have experienced sexual harassment during their careers and that – unsurprisingly – 75% of cases went unreported.

As I read the report, I noticed the data relating to instances specifically involving clients. As we all know, this is a sensitive topic as our careers and lives revolve around our ability to maintain successful relationships with our clients. But it occurred to me that although it may feel uncomfortable, we should be having these conversations.

This panel was brought together to provide leadership from the older generation of women in law on this subject as well as perspectives from our younger generation. Only by sharing our past experiences can we hope to protect future generations of women in law from experiencing similar types of harassment.

I’d like to kick off our discussion with a blunt but simple question: Have you ever experienced harassment or inappropriate behavior by a client?

 

Lindsay: Good morning everyone. I have experienced inappropriate behaviour in the past. It is interesting to reflect on how I would choose to manage such a situation now, in today’s climate, compared to how I tried to manage it when I was younger.

I recall when I was a very junior lawyer, I was asked to attend a marketing event. It was exciting because I was going to meet a lot of people as well as firm clients and potential clients. And it was a great night, other than the one awkward experience I had with one individual during the dinner portion.

During the dinner, I was placed beside two individuals that I had never met. When chatting with one of them, who I would estimate was about 60 years old, he was relentless in commenting on my appearance, his availability and how great we could be as a couple. He also asked for my phone number. I had no idea if he was a client of the firm or not, and so I thought the best, or “safest”, approach was to remain polite, and just laugh off the comments – including when he asked for my number. The approach did not work in that the comments from him did not stop, but fortunately the dinner did not last forever and when it ended, I was able to keep space from the individual.

 

Sheila: Thanks for sharing, Lindsay. You have described a familiar tightrope – trying to maintain a positive rapport while simultaneously not compromising your own boundaries or principles. It’s a hard line to walk sometimes. In general, I would try to handle the situation exactly as you did – be polite, divert the conversation to something appropriate, or find a way to respond that makes a point without making “the point” or embarrassing the other person ( though he should be). That last one can be tricky, though.

While we tend to acquire skills fending off jerks at the bar in our twenties, encountering that same type of behaviour in our 30s, 40s, and beyond at work functions is not something you expect as a professional woman (at least I was naïve enough to think it didn’t happen). Consequently, I found the situation infinitely more distressing when it did because I couldn’t necessarily handle it in the same manner (i.e. – a sharp, sarcastic comment and quick turn of my heel). I was very quickly required to develop a new and different set of skills at a time and in a place I didn’t think I would need them. With hindsight, I know there are situations I wish I would have handled differently.

By and large, conferences tend to be the environment in which I or my colleagues have encountered more prevalent inappropriate behaviour on the part of clients, typically in the form of unacceptable comments. For example, a female lawyer from another firm and I were speaking with a mutual client who asked us if we would like to go “smoke a j” (yes, he used those words because marijuana was still illegal) and then go to his room to see “something”. I have edited the actual invitation to keep this story family-friendly. The comment seemingly came out of nowhere – we were talking about something truly mundane at the time.

Needless to say, my colleague and I were shocked, very quickly refused his suggestion, and found a way to exit the conversation and situation. We may have thrown in a little sarcasm for good measure. It was nice not having to deal with the unwanted behaviour completely alone, which is usually what happens when clients behave inappropriately. To give him some small credit, the man did subsequently email me to apologize. As far as I know, though, he never again sent a file to our office (which I assume was due to his own embarrassment).

While clearly inappropriate and one of the more outrageous examples I can provide, the man’s comments were, in fact, on the lesser side of offending behaviour I have observed. Almost always, the more insulting or distasteful comments or behaviour has been at the hands (sometimes literally) of other members of the bar.

 

Cynthia: Thanks for inviting me to join this very important conversation Kim. I am going to jump in here to echo some of Sheila’s comments about conferences.

I am fortunate that I do not have stories to share about inappropriate solicitations from clients. But conferences with other lawyers can also be fraught with this type of behaviour. They are geared to networking and making connections, and in that context, people are more likely to be more personal and friendly (myself included!) There are a lot of benefits from that type of personal connection. But I expect that if you asked most female lawyers, many will tell you of instances that went beyond, sometimes far beyond, making personal connections and consensual conduct.

Over my career, I have heard more than a few stories from women about interactions with “handsy” counsel at conferences, from the extended placement of a hand on the back, to the uncomfortably long hug, to the out-and-out grope. I have experienced those too. I recall one conference where, in a crowded room, another lawyer used the opportunity to touch me inappropriately. I gave him what I hope he took as a “death glare”, walked away and, for the many years since, I avoid that person in all social settings. And while I would say that the vast majority of male lawyers with whom I interact have never and, I believe, would never conduct themselves that way, my experience is definitely not unique. Stories are told among women; identifying those men to stay away from and seeking support from other women.

I wish I could say that I have some great ideas on how to handle that situation, but I think that, in those situations, ensuring your personal safety and seeking support is paramount.

 

Kim: I really appreciate that each of you is prepared to share your experiences with me. It seems that many of us have had these types of encounters and have found an immediate way to deal with them that reflects our professional integrity. It is impressive given that usually you have to react almost on impulse in these scenarios.

Mandeep – have you ever experienced similar harassment?

 

Mandeep: Hi Kim, good morning everyone. I can’t recall an incident where I have been harassed but I have had a number of incidents where clients have commented on my looks or “that you look so young to be so experienced”. It is like they are fishing to find out my age. It’s always a very uncomfortable comment given I am older and experienced.

For example, I have had clients comment “you don’t look like you have kids” or “you look like you just finished law school”. I recall a specific incident where I finished a long discovery prep of a client with a junior male associate in attendance and the client commented as we were leaving that I looked “very good after just coming back from maternity leave” and it was awkward for me in front of a junior lawyer. I simply said “thanks” and brushed off the comment not knowing what else to do. I remember thinking I hope you paid attention to my advice with respect to your upcoming discovery and didn’t just focus on my appearance.

 

Kim: Thanks Mandeep. You’re so right. These types of comments are tricky. Perhaps the client doesn’t see why making a comment like that is inappropriate and pointing this out to them is not a hill you want to die on. Sometimes, all you can hope is that they can pick up on those social cues you’re trying to give them. Such as the example you used of “brushing it off” and hoping they will move on.

Have any of you ever spoken to anyone about your experiences?

 

Sheila: I agree, Kim. We are smart, capable women who want to be valued as smart, capable women. Some comments meant to be complimentary simply aren’t; however, pointing out why isn’t likely to garner you any fans. Context is also important – there may be certain client relationships in which a compliment is simply a compliment. No offense is meant, and none should be taken. The challenge, of course, is figuring out your own comfort level and how to handle those situations you find to be “crossing the line”.

Much like Mandeep, though, I have never felt the need to formally “report” creepy or unwanted client behaviour on the lower end of the spectrum, and generally, I have been able to extract myself from any such situation on my own. Sadly, with respect to more offensive behaviour, I’m probably “stuck” in the mentality that reporting doesn’t usually result in anything positive for the person who reports it.

That said, I will share the more offending types of interactions with my colleagues. In my view, the circumstance created by the behaviour is the other person’s problem, so it is fair game for me to share my experience either as a warning to others or to seek assistance in handling it.

For example, if the behaviour does not desist through efforts to handle it politely, I will find my colleagues at the event so I’m not having to deal with the situation on my own. Initially, I think my male colleagues thought they needed to chivalrously “save” me, which was entirely different than the support I was actually requesting. Thankfully, after explaining why the male machismo thing doesn’t work or reflect positively on the person who needs help, they “got it”. Now, after a number of years working events together, there is very little required to be said if any one of us is encountering the “creepy client”.

If you are new to the firm or a younger lawyer, you may find it difficult to seek out the assistance of others when inappropriate behaviour occurs, especially if you are completely unaware it might. I totally get that feeling, which is why I and one of my male colleagues have made a point of saying “here’s what can happen” and “here’s what you might consider doing” before the event (and particularly if the person has never attended one before). The purpose is twofold. First, and foremost, I want them to know they can get support from any male or female lawyer at our firm at the time unwarranted attention is being bestowed. Second, I want them to have the “heads up” so they don’t have to come up with a game plan the first time it happens. Hopefully, it never will, and I truly think we are closer now than we ever have been; however, I don’t think we are yet at a point where I could confidently say it won’t.

 

Lindsay: Obviously there is a spectrum of how clients (or potential clients) can act with their lawyers. My experience is on the lower end. However, it made me feel uncomfortable because my efforts to try to be polite in providing what I thought were clear social clues that I was not interested in engaging with the advances they didn’t stop.

I have never discussed this matter with anyone, until now. I work with a number of incredibly bright and strong women around me and I know that had I raised it with them, they would have provided me with support and guidance and perhaps a different approach in dealing with such a matter. But I didn’t. Why? In hindsight, I think it was a feeling of wanting to belong with my coworkers, and being an insecure junior lawyer – I thought that if I couldn’t solve my own problems and figure out how to handle the situation properly that maybe this was a sign of weakness and that I wasn’t cut out for the job.

Today, if the same situation arose, I probably would still try to laugh off the comments and divert the conversation first. If that did not “shut it down”, I would inform the individual that I am not interested and again change the subject. If that also failed, I would remove myself from the table.

 

Mandeep: While I have experienced a number of “creepy” incidents with clients I have not had an incident that I felt it was necessary to share or report. I find I can usually just handle the incidents by remaining professional myself. I have learned over the years how to maintain good boundaries with clients. I can maintain that balance of being professional but also personable. It is far more difficult when you are junior and have less confidence.

Honestly, I don’t know how to handle those comments that are meant to be compliments any differently. My approach is to ignore/brush them off and continue with the meeting but if anyone has a better suggestion, I would be open to it.

 

Kim: Cynthia – what are your thoughts – what should you do if a client hits on you?

 

Cynthia: My initial reaction to this question is “whatever the hell you want” … within the boundaries of professional conduct, of course. I realize that is not a particularly helpful response, but it comes from a place of frustration that, despite the #MeToo movement, women in the workplace still have to deal with this situation. And the fact that, in my opinion, there is no right response, there is only the response that is right for you.

A good friend of mine told me that she handles the situation where counsel says something inappropriate to her by deflecting with humour (usually sarcastic) which has the effect of making him realize that he was out of line. I am neither fast nor funny enough to pull off that kind of response. My usual response, whether it be from a client or opposing counsel (as is more often the case), is more likely some awkward facial expression and a quick change of subject, usually back to the work that is before us. But do not beat yourself up if, in that moment, you stare blankly or incoherently mumble something or just walk away. Or even if, in that moment, you have a fleeting sense of being flattered. No matter how much we prove ourselves every day, many of us suffer from lingering doubts about how smart we are, how attractive we are, how (fill in the blank) we are. Even totally inappropriately comments can result in a subconscious sense of validation. That is also okay in that moment.

More important is what you do afterwards.

 

Kim: I absolutely agree. What works for one lawyer isn’t necessarily going to work for another, but it’s up to that lawyer to find the solution that allows them to walk away from the situation with integrity.

 

Cynthia: Absolutely. Do not let these instances shake your confidence in your abilities as a lawyer. I know women who feel diminished by this conduct. Don’t let that happen. Recall, this is the professional equivalent of a wolf whistle as you walk down the street; you did nothing wrong. Continue being your awesomely fierce self.

Consider talking to someone more senior in your firm about what has happened. In my experience, there is a sisterhood that develops naturally among female lawyers. You may need a little of that, plus some advice on how to handle the client and the file in future.

Finally, consider whether someone else at the client’s workplace needs to know. If this is an employee of an institutional client, is there a risk that he is acting inappropriately in the workplace or with other third party providers (with attendant exposure to the institutional client)? What about towards other women from your firm? You do not need to lead a crusade, but your professional obligations may require you to take some action. Others in your firm may help guide you on what those obligations are depending on the circumstances.

 

Sheila: Cynthia, I’m so glad you made the comments you did about the feelings someone might experience. It is important to realize you can feel flattered or validated (or insert whatever other word having a “complimentary/positive” connotation) even though the behaviour eliciting that response was not invited or appropriate in a professional setting. To be fair, you might not even realize the other person’s behaviour was what it was at the time – advances are not always blatant. So, I also think it is important to give yourself a break if you just awkwardly get through it or, with hindsight, wish you would have handled the situation differently.

It is equally imperative to realize that, regrettably, there may be no consequences for the offender but significant consequences for the recipient or firm. That the offending behaviour will be completely inappropriate is a given (or should be). If a major client decides to pull its business because someone “forgot” he wasn’t at the bar, though, you may not get the response you either expect or well-deserve (especially if the client isn’t yours). That outcome isn’t fair or right or justified, but I think it is an unfortunate reality, particularly if the behaviour is “judged” to be on the lower end of the spectrum and/or more subtle.

Like Cynthia, though, I would not recommend going on a crusade. I believe there are ways of handling any unwanted situation without jeopardizing the entire client relationship, i.e. – no need to throw the entire apple out because of one bad seed. That said, the response probably depends primarily on the situation and how quickly someone understands a polite “no” is still a “no”.

Ultimately, if you are in a situation you don’t want to be in, find a way to extract yourself as quickly as possible. You can think about what might/should happen later, but talking about it with someone you trust is essential in my view. Ideally, that person is someone in your workplace. Ultimately, and I echo everyone else’s thoughts on this point, what works for you may not work for someone else – all you can do is handle the situation as you think is best at the time.

 

Kim: As I reflect on our discussions, it is clear that we all have experienced workplace harassment in some shape or form. I note the experiences we have shared relate to men but we all know this kind of behavior can be exhibited by anyone toward anyone. It is not exclusive to men as the perpetrator. It is also clear that there isn’t just one right way to manage or address these situations. My concern is that the prevailing culture of silence around harassment in the workplace continues despite the #MeToo movement and story sharing. I understand the fear and embarrassment around disclosure and as a result I don’t know that there is a “correct” course of action in these situations. Having said that, I do think we should discuss the path or paths forward. What is the best and most realistic advice we can give to women who find themselves in similar situations?

 

Cynthia: One of the reasons why I was so happy to be asked to participate in this panel blog post was because it gave us all an opportunity to bring into the light an issue that has long been in the dark in our profession. Most of the women who have shared their experiences with me and with each other did not report the experience formally to anyone. I too am in that camp of women who have reacted to harassment by changing the subject or walking away or avoiding the person again. I don’t regret my own reactions, nor am I critical of others; we all have to do what is right for us. But I am hopeful that by talking openly and sharing our experiences in this forum, we also encourage women to talk openly and to not be afraid to report if that is what is right for them.

 

Sheila: I have been struggling with how to answer this question. I’m not really sure I can definitively say there is a “one size fits all” answer for moving forward. For me, the considerations in handling any situation are highly dependent on the nature of that situation and how the person who has experienced the inappropriate behaviour feels about it. As has been stated repeatedly, what works for one may not work for all and/or be appropriate in every situation. I agree with Cynthia, though – continuing to speak openly and honestly is essential to promoting awareness and, possibly, eventual change.

 

Mandeep:  This is a tough question. Honestly, even today, if a client is being inappropriate it would have to be egregious harassment for me to officially report it. Otherwise, I would likely just deal with it myself by shutting it down quickly and then continuing as the client’s lawyer. If I was being harassed by someone within the firm or another lawyer, I would have a low threshold to report inappropriate behavior. I know that isn’t the “right answer” but it is what I would do.

 

Kim: Thank you everyone – your comments are all insightful and provide very real and practical advice.

There was one specific comment in the survey that stuck with me from Julia Gillard AC, 27th Prime Minister of Australia and chair of the Global Institute for Women’s Leadership, King’s College London:

“As the #MeToo movement has shown, women are no longer prepared to be silent. The demands for deep-seated reform are insistent and determined. After all this activity, the world cannot lapse back into shameful silence.”

 

Lindsay: I agree. As I was preparing for this panel, I asked myself why share my story now? Well, LiL was designed to be a safe space, and to communicate and discuss our experiences, with the goal that it might help at least one person. And I think that by discussing our experiences, no matter how uncomfortable they may be, we can achieve that goal.

 

Mandeep: I think it is great we are having this important conversation. When I started practice in 2004, I would tolerate so much more than I will today with respect to inappropriate behavior in the workplace. I am optimistic that women coming into practice now will call out behavior that does not belong in our legal profession.

 

Sheila: Although the focus has been on the experiences we, as women on this panel, have had, it should be recognized the issues discussed affect men as well. As expressed by Lindsay, my hope is this conversation has helped at least one person feel like s/he isn’t alone.

 

Cynthia: I’d like to add one more note before we wrap up. For all the men out there, who have stumbled across this blog and are wondering what they should do, keep this in mind: professional women should be treated as professionals. If you model that behaviour, hopefully so too will the others around you.

 

Kim: On your last point Cynthia – I agree. It is very important for men to support us and stand as our allies. We know this behavior isn’t exhibited consistently or at all by most men. In fact, some of my male colleagues are incredibly strong female advocates. The issue is, when it is behavior you yourself haven’t experienced, it can be hard to recognize it when it’s happening. That feeling of discomfort we get as women in response to harassment or certain behaviours is a learned response. Involving men in the conversation can only do good and allow them to sympathize with the situation and subsequent reaction we are experiencing a little bit more.

I know there is so much more we would like to discuss but we will leave it there for now. I sincerely thank all of you for joining us in this conversation today. As I stated at the beginning, it’s through sharing our past experiences that we can hope to protect future generations of women in law. I know that I would have poured over any advice I could get my hands on when I was a junior lawyer and if, through this forum, we’re able to provide any insight at all to a junior lawyer, or any lawyer for that matter, I say that’s a success.

You can access the full IBA Us Too? Bullying and Sexual Harassment in the Legal Profession report here.

 

BIOS

Kim Jakeman

Kim Jakeman is a partner at Harper Grey and – in case this is your first time here – also the co-founder of Life in Law. Not only is Kim a skilled mediator, she also maintains a busy dual practice focused mainly on litigation in the area of medical malpractice, and regulatory work involving professionals facing disciplinary proceedings before a variety of regulatory bodies. Kim is almost as passionate about biking, her new love of surfing, and working out as she is about supporting women in the legal profession. A master of her own balancing act, when Kim isn’t busy with work she spends coveted time with her family and friends.

 

Cynthia B. Kuehl

Cynthia Kuehl is a partner in the Toronto office of Lerners LLP. When not litigating or arbitrating commercial disputes and medical malpractice claims before all levels of court in Ontario and in the SCC, Cynthia enjoys mentoring and speaking, writing blogs for fantastic female-focused forums, running slowly over medium distances, and baking unhealthy cakes and cookies for her two children.

 

Sheila E. Caston, QC

Sheila Caston, Q.C., is a partner at McKercher LLP and an Executive Member of the CBA National Health Law Section. She practices in the areas of insurance and health law, primarily defending claims against professionals. Living in Saskatchewan, she’s anticipating that the current pandemic means the winter of 2020/2021 is going to be really, really, really long.

 

Lindsay Johnston

Lindsay Johnston is a senior associate at Harper Grey and assists a wide range of health professionals with respect to regulatory matters. As a natural extension of her administrative law practice, she is also a workplace investigator and has earned a reputation for her ability to unflinchingly scrutinize investigation reports. An advisor at Life in Law, Lindsay understands the importance of juggling her busy work life with her family life. She loves a good escape to her hometown of Powell River on the Sunshine Coast with her husband and two little boys for a much-deserved break.

 

Mandeep Gill

Mandeep Gill is a senior associate at Harper Grey and part of our clan of Life in Law advisors and a contributing member of the Dear LiL Blog Squad. Mandeep practices with the Harper Grey Health Law and Professional Regulation groups and has defended her clients at all levels of court in British Columbia and the Supreme Court of Canada. When she’s not advocating for her clients, she is losing most of her battles with her three young children.

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