Months before the #MeToo movement exposed the world’s entertainment and media elite, the Law Society of British Columbia issued a discipline decision that was a first in British Columbia and is one of only a few similar decisions in Canada. The January 2017 decision, involving a Victoria based lawyer, confirms that sexual harassment by a lawyer is professional misconduct because it expressly violates Rule 6.3-3 of the Code of Professional Conduct for British Columbia, which states a” lawyer must not sexually harass any person”.
At the outset of the decision, the Law Society Hearing Panel made several observations that have since become familiar: The background to the formal complaint and citation is a cautionary tale. The taboo is workplace sexual harassment committed by a person with power in the employment relationship who has come to the fate of public shame, family anguish, financial cost and professional discipline. The tale is enlivened by complainant courage and Respondent contrition, cooperation and personal awareness.
While formal professional discipline is non-existent in the entertainment and media industries, it is an important aspect of the legal profession because “[o]ne of the hallmarks of civilized society is the rule of law. Its importance is reflected in every legal activity in which citizens engage. As participants in a justice system that advances the rule of law, lawyers hold a unique and important role in society.”
Like comparable Law Society discipline decisions in Alberta in 2007 and in Manitoba in 2010, the Victoria based lawyer admitted that his conduct, primarily comments of a sexual nature towards a law student and a paralegal and one incident of improper touching, amounted to sexual harassment and was professional misconduct. When assessing what sanctions the Victoria based lawyer should be subject to the Law Society of British Columbia noted that:
- the conduct stopped when it was brought to his attention that it was creating a hostile work environment;
- he apologized to the law student and the paralegal and committed to modify his behaviour; and
- he made a number of changes, personally as well as office wide, including taking sensitivity training and adopting a firm Workplace Bullying and Harassment Policy.
Recognizing that a spectrum of sanctions should be considered depending on the severity of the sexual harassment in the workplace, the Law Society of British Columbia agreed to apply the sanctions proposed by the Discipline Committee. In the Victoria based lawyer’s case, the sanctions were a $10,000 fine and the completion of a sensitivity training course satisfactory to the Law Society within a specified time.
While the impact of the #MeToo movement continues to be felt in many industries, it is imperative that those in power in law firms and legal departments, whether big or small, in British Columbia consider:
- Implementing workplace respect and harassment policies that provide non-exhaustive examples of unacceptable workplace behaviour, including bullying, discrimination, harassment and sexual harassment and, also include the spectrum of remedial action that may be taken if behaviour falls below what is acceptable;
- Updating existing workplace respect and harassment policies on a regular basis to take into account new case law and evolving societal norms of behaviour; and regularly training all lawyers and staff on the workplace respect and harassment policies so there is no second guessing about what is unacceptable workplace behaviour as well as what mechanisms are available when someone wants to initiate a workplace complaint.
About the Author Fiona H. McFarlane heads our Vancouver practice. Fiona conducts workplace investigations into allegations of harassment and workplace violence, code of conduct violations, bullying, poisoned work environments, privacy breaches and other problematic workplace behaviour. Fiona is also available to assist her clients understand their internal issues better through workplace assessments and reviews. Fiona also provides workplace investigation and human rights training to staff at all levels.