How Law Firms Are Adapting To #MeToo Era
By Brandon Lowrey
Law360 (March 25, 2018, 9:19 PM EDT) -- Jay Selanders was elected chairman of Kutak Rock LLP just weeks before the #MeToo movement began.
It didn’t take long for him to recognize the significance of the cultural moment. He and Vice Chairman Dave Amsden quickly called for an examination of the firm’s sexual harassment policy and research into best practices.
By early December, they had kicked off a series of meetings that included top leadership, human resources and the firm’s employment lawyer. Selanders told Law360 that they leaned heavily on the writings of Arin Reeves, president of diversity consultancy firm Nextions.
Those meetings are continuing, and firm leaders said they are examining the policy’s language, the required training and the internal complaint process.
“If you haven’t recently looked at your policies, you should,” said Kimberly McKelvey, Kutak Rock’s director of strategic focus and diversity. “This is not rocket science. These are all lawyers. Everyone knows to look at their policies first.”
Law360 asked the top 100 U.S. law firms about their sexual harassment policies in a recent survey. Most firms declined to participate. Of the 18 that did, 11 said that they have recently added policies or initiatives in direct response to the #MeToo movement.
Experts say sexual misconduct is a serious problem in the male-dominated legal industry, and while some firms are updating their policies, the vast majority probably have a long way to go.
“Law firms generally are pretty oblivious, and they’re very cautious,” said Gerry Riskin, chairman of legal consulting agency Edge International. “We come to a topic of this nature with our usual lawyer hats on. We’re scared of liability. We’re scared of controversy. Most law firms are just profoundly hoping nothing bad is going on.”
Responding to #MeToo
Experts say any firm that hopes to hunker down amid the #MeToo movement is making a mistake.
For starters, firms should ensure their employees know the path they can take to file a sexual harassment complaint safely and anonymously.
“I will tell you at most firms if you ask that question, most people at the firm would not know the answer,” Riskin said. “The leadership of the firm would not have thought it through, and certainly the rank-and-file of the law firm wouldn’t know.”
Quality sensitivity training can also make a big difference, he said. The bulk of the firms that responded to Law360’s survey mentioned creating or communicating a clear path for complaints and updating their training programs.
Most, including Greenberg Traurig LLP, are re-evaluating their policies or creating new initiatives in light of the #MeToo movement. Many are reminding employees about their sexual harassment policies and reporting guidelines. Several others are enhancing training.
McDermott Will & Emery LLP, for instance, is working on strengthening its sexual harassment policy and revamping its training to include live sessions for all personnel, in addition to the sessions the general counsel already leads for summer interns and new associates.
Last year, the firm held its first-ever Women’s Summit for female capital partners to have “frank discussions” on how the firm can become a better place for women. In January, it expanded the attendance for the summit to include other female leaders at the firm.
“This year’s gathering gave McDermott’s women the opportunity to have an open and meaningful discussion about the challenges women face in the legal industry and the ways in which McDermott can support its women on their paths to success,” the firm said.
Davis Wright Tremaine LLP refreshed its policy and is conducting mandatory “respectful workplace” training for leaders and employees, and it’s providing updated training to its internal investigators who look into harassment and discrimination complaints.
Orrick Herrington & Sutcliffe LLP has thrown a spotlight on the topic in discussions with leadership and staff, among other measures. Lynne Hermle, an employment attorney for the firm, led an interactive session titled “Leading in the #MeToo Era” for Orrick’s leadership team, including its board and management committee along with sector, office and practice leaders.
The firm is also leveraging new opportunities for face time with leadership, implemented last year, to raise awareness. “Coffee Talks” and “Office Hours” offer opportunities for small groups or individuals to talk to the firm’s top leaders. It also reminded employees to reach out to the firm’s ombudsperson, who functions independently of management, if they feel uncomfortable following the standard channels.
Bradley Arant Boult Cummings LLP reviewed its harassment policy in light of #MeToo and is anticipating few changes after concluding its policy is “strong,” but it is planning more training on the issue. Womble Bond Dickinson is also rolling out firmwide training in 2018.
Pepper Hamilton LLP, which, like many firms, already provides sexual harassment prevention training as part of its new hire orientation, began doing a refresher course for all employees and partners last year, although not in direct response to the #MeToo movement.
Employment law boutique Jackson Lewis PC also said it has not made any recent changes in direct response to the #MeToo movement. Chairman Vincent Cino said it doesn’t need to because its sexual harassment policy is among the strongest. After all, employment law is what the firm does.
In cases of sexual harassment complaints, the firm promises to launch an immediate and thorough investigation. Its policy urges accusers to contact the firm’s highest levels of leadership if they haven’t received a “satisfactory response” within five business days.
“For us,” Cino said, “we have to elevate our game always to make sure that we’re practicing what we preach.”
Signing on the Dotted Line
While victims might stand to lose by the mere act of coming forward, at some companies and law firms, contractual provisions or settlement agreements could allow even proven offenders to escape unscathed, as was reportedly the case with Harvey Weinstein.
Amid the #MeToo movement, nondisclosure agreements in many industries have come under scrutiny, though it remains unclear exactly how prevalent such agreements are within law firms.
On Saturday evening, Harvard Law School lecturer Ian Samuel took to Twitter and lambasted Munger Tolles & Olsen LLP for requiring summer associates to sign mandatory arbitration agreements.
“This secret arbitration requirement is explicitly made applicable to Title VII claims, including sex and race discrimination. You would have to be willfully ignorant not to get what this is about,” he wrote in a series of tweets that highlighted passages from the contract. “I think this is the grossest thing I’ve ever heard. Munger ought to be ashamed of themselves.”
The backlash was swift and fierce, with scores of law students, academics, and legal industry observers and organizations echoing Samuel’s disgust.
By Sunday afternoon, Munger Tolles announced that it would end its practice of requiring any employees to make such deals.
“Munger, Tolles & Olson is committed to the highest standards of conduct. In this case, we were wrong, and we are fixing it,” the firm announced in messages posted on Twitter and sent to reporters. “We will no longer require any employees, including summer associates, to sign any mandatory arbitration agreements.”
Of the 18 firms that responded to the survey, seven said they have not required any of their employees to sign arbitration or nondisclosure agreements that would apply to sexual harassment allegations. Seven said that at least one of the two types of provisions are in effect for certain classes of employees. The remaining four firms declined to comment.
In fact, the vast majority of the top 100 U.S. firms declined to offer detailed information about their policies when contacted by Law360.
Only one of the top 10 firms, Greenberg Traurig, participated in the survey. Thirty-eight firms declined to participate in the survey or limited their responses to general statements that they do not tolerate harassment or discrimination. Another 45, including four of the top 10 largest firms, did not respond to multiple calls and emails left over weeks.
Transparency goes against attorneys’ instincts, said Joanna L. Grossman, a professor at Southern Methodist University’s Dedman School of Law. But those instincts have given rise to a culture of silence that could serve the interests of bad actors.
“They’re trained as lawyers, and so they’re generally more cautious, generally more protective of information, generally more worried about confidentiality, and that’s not a bad thing in and of itself,” she said. “This might be an example where the kind of general lawyerly instinct to hold information close might actually be contributing to the problem.”
While law firms’ reluctance to share internal policies may not be surprising to some, academics and corporate counsel say the #MeToo movement could mark the beginning of a new era for BigLaw — one in which clients and prospective hires demand more transparency.
Corporations have long used their market power to pressure law firms to create diversity programs and release diversity data. That same force may in the future be applied to get firms to open up about their sexual harassment policies, said Amar Sarwal, chief legal counsel and senior vice president of advocacy and legal services for the Association of Corporate Counsel.
Lawyers ultimately might not have a choice, as legislators and regulators begin wading into the matter.
In the U.S., lawmakers in multiple states, including California, Massachusetts, Washington and New York, have introduced bills that would bar nondisclosure and forced-arbitration agreements in cases of discrimination, harassment and retaliation.
The legal industry is being held to a higher standard in the U.K. That country’s Solicitors Regulation Authority recently sent attorneys a warning notice reminding them that they must report misconduct by individuals or the law firm regardless of whether a nondisclosure provision is in place.
“The public and the profession expects solicitors to act with integrity and uphold the rule of law. And most do,” SRA CEO Paul Philip said. “NDAs have a valid use, but not for covering up serious misconduct and, in some cases, potential crimes.”
--Additional reporting by Sam Reisman and Natalie Rodriguez. Editing by Jocelyn Allison, Jeremy Barker and Katherine Rautenberg.
Monday Mar 26, 2018