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Allsop, Justice James --- "The culture of the legal profession: lessons of the past and hope for the future" (FCA) [2022] FedJSchol 20

[t]he fiduciary principleaEUR|is, itself, an instrument of public policy. It has been used, and is demonstrably used, to maintain the integrity, credibility and utility of relationships perceived to be of importance in a society. And it is used to protect interests, both person and economic, which a society it perceived to deem valuable.^[29]

It is axiomatic, but sometimes forgotten, that a lawyer is first and last a fiduciary, not a businessperson. Fidelity to the interests of the client is not aspirational, it is obligatory and foundational. As Finn emphasised, this is not a question of avoiding negligence, it is about undivided loyalty. The culture of bullish competition and aggressive behaviour in the legal profession can at times cause a distortion of, or distraction from, professional legal obligations. Addressing cultural change requires refocusing on fiduciary obligations and on the role of lawyers as members of a profession first and foremost.

We must also acknowledge and take seriously the tensions between compliance with professional obligations and commercial pressures and goals, particularly for corporate law firms and in the context of increased commercialisation. An undue focus on revenue can pervert incentives, including a willingness to do whatever it takes for powerful clients.^[30] Of course lawyers need and are entitled to earn a living from their work. However, the living to be earned is from the practice of a profession, in the fullest sense.

Lawyers occupy a critical position of public trust and service and so should have a broad understanding of the world in which they operate. If State Supreme Courts can be constitutionalised in the Australian Constitution: Kable,^[31] Kirk^[32]; so can the profession and its true independence. A narrow focus, including through, at times, the siloing of lawyers into areas of specialisation and technical expertise, needs to be counteracted to ensure perspective and to ensure that advice comprehends the real world context to which it applies. This tendency to silo hasnaEURtmt been aided by the proliferation of sometimes absurdly complex legislative instruments. This siloing can also encourage a culture which focuses on the language of the law to the exclusion of its human context. To do so forgets the very purpose of the law, which is ultimately the regulation of human relationships and the answering of social, not purely legal questions.^[33]

As I spoke about in a recent speech, the work of neuroscientist, psychiatrist and polymath, Ian McGilchrist, is greatly illuminating in this respect.^[34] McGilchristaEURtms study reveals that the two sides of the brain have a tendency to bring opposing types of attention to our way of thinking: the left focuses on the immediate, precise and narrow and the right on the whole, flexible and relational context. This is fundamental to the success of any animal, including the human species, as it allows both abstraction from and so the making sense of reality, but at the same time being within reality. I think it can also teach us much about our approach to the law. Language and so the reduction of the human experience into symbols and categories is a necessary part of the law, which is the ordering and regulation of social behaviour through rule and principle. But there are limits to definition and text. If we seek answers to our legal problems solely through literal application of language and increasing textual precision, we may find the answers are quite abstracted from the realities whence the language came. To remain comprehensible and just, the practice and application of the law needs emotional intelligence, intuition and empathy, so as properly to comprehend and to apply the moral values underpinning the rules and principles, expressed through the language of the law. To know the language of the law is not enough; we have to look at what motivates that law and think intuitively about how it applies to the realities and variances of human experience. These lessons are applicable to both the way we approach the law and in the way we treat others.

Laws and rules regulating workplace behaviour cannot encapsulate the human distress nor the essence of the moral values which motivated their promulgation. The broad picture is a desire for a workplace in which all people feel safe to go about their work and to excel, without fear of debasement of their dignity and wellbeing. The underlying values include inalienable human dignity, non-discrimination and self-determination. How we treat our colleagues in the workplace should be consistent with those underlying values. The existence of robust laws which protect workers from sexual harassment and bullying in the workplace are vital, but the words donaEURtmt alone encapsulate their full human importance.

A comprehensive and lateral approach to the law and to our workplace enables us to attend to the human consequences of our own behaviour and the behaviour of others, where our view might have otherwise been obscured by narrow focus on the task at hand; on our own insular perspective; on defeating the opposing side or on competing with our colleagues. By stepping back we are reminded that there are views and experiences other than our own, which creates fertile ground for reciprocated engagement. By having such a perspective, we combat a false reliance on perfectionism and see that there are creative and different ways of doing things which are more inclusive of those outside the traditional, narrow mould and perhaps, better.

The COVID-19 pandemic has revealed this in many ways. As many lawyers were forced to work from home, employers realised that flexibility in working arrangements may in fact be possible, and positive. For some employees, control and autonomy over their working arrangements made them happier and just as, if not more, productive. For some, the opposite. Flexibility also helps breakdown the barriers which may have otherwise deterred or excluded, including because of caring or child-rearing responsibilities, disabilities or even distance from the workplace. In many courts, judges and practitioners alike had to adapt to conducting hearings over video-conference. In my experience, whilst this presented its own new set of challenges (many, perhaps, showing the age of some judges), there have been many benefits. I have found that the personalities of some barristers and practitioners are far more conducive to the intimate and less intimidating environment of the video-conference. Some say that the lack of physical proximity means the experience is less personal and makes it challenging to detect subtle signs of body language. Sometimes the video view, if you have a much closer view of the faces of judge and practitioner, is more personal. Further, some practitioners seem to be calmer, less nervous and more willing to engage in a discussion with the judge online, perhaps owing to being in the comfort of their own home or office rather than in the grandeur of the courtroom environment. Apart from the fact that video-conferences, where appropriate, can be an important and responsible cost-saving measure, I think we need to reflect on how it may be bolstering the confidence and participation of practitioners who do not fit the traditional mould of combative courtroom performer.

These changes to ways of working have been subject to much analysis in the last year. They are not going to work for everyone and there are drawbacks. But I think we must not lose the spirit of creativity, flexibility and open discussion. We should continue to evaluate whether our ways of working are fit for purpose; whether they are unacceptably exclusionary and what we could do better. That the strong and confident lions call for a return to the arena, should not distract us from the utility of the quieter space where aggressive declaimers are at a disadvantage.

To that end, we should also support interdisciplinary discussion, learn from and engage with the diverse members of the legal community and the non-legal community.^[35]

We should also reflect on how we can take practical steps to support equality, inclusion and human dignity in our legal work. When I commenced as Chief Justice of the Federal Court, I proposed to the profession an idea about how properly to fund pro bono legal work in a systematic way. Salvos Legal, at least at that time, was funded by the profits of a private law firm through a charitable trust. This flow of funds enabled the employment of several full time lawyers on a proper salary, around whom volunteers worked, dedicated to providing free legal advice through centres which also provided available counselling services, and other kinds of financial and interdisciplinary support to address the complex legal and non-legal needs of their clients. There was little appetite for such a suggestion. I perceived a contrary view based on the desire to internalise this charitable work to bolster goodwill amongst graduates. I think modern law firms should reconsider this model by setting up a combined fund to run an independent and non-affiliated pro bono network. A form of private legal aid. Our commitment to reforming the formerly dominant culture should be multi-faceted.

Why should not Queensland lead the country in this too?

When speaking about ways of working and legal culture, we must also acknowledge and address stress and mental health concerns; endemic symptoms of the dominant culture and at times causes of unacceptable workplace harassment and bullying.

Many of us do not need to read the research in order to know that stress and mental health concerns have been and continue to be prevalent amongst members of the profession.^[36] Whilst the forms of Australian legal practice are diverse, the profession can generally be highly demanding on time, intellect and emotion, including because central to the work of many lawyers is the resolution of problems for clients in distress or in need of quick advice with much at stake. The consequences of getting it wrong can be enormous and so the pressure is high, as it the expected standard of performance. For many years, battling through and enduring mental anguish was seen as a mark of honour, a badge of toughness and a necessary prerequisite to success and therefore not a problem. Accompanying these conditions was a culture which has been described as aEUR~predominantly conservative with a predisposition towards preserving the status quoaEURtm.^[37] It is also, as I have said, a culture that generally favoured an archetypal male stoicism; uncompromising and inflexible; and blind to the value of emotional expression or support, perhaps both in the output and approach to the work of the law.

So, despite growing awareness of the harm caused by perpetuating this narrative, it has persisted in a profession slow to change with a culture with gears against it. Stress and high demands can also leave little room to contemplate professional obligations, resolve ethical concerns, and maintain a health perspective to enable this.

It is also now well understood that stress can lead to unintentional bullying in the workplace. This bullying can cause serious harm to the individual, as well to the workplace generally in the form of dysfunction and fear. That fear can manifest as fear of speaking up about said dysfunction, about unethical conduct or even about abuse. It can stifle and hold back the cultural changes that we so desire, and it can reinforce the formerly dominant culture. To acknowledge that bullying may be borne out of stress is not to excuse it and I do not wish to: bullying can be truly belittling and harmful. Rather, it is to interrogate the pieces of a culture caught in a feedback loop, so that we may dismantle and address them. I should say that what one person considers to be bullying, may be different to what another person considers to be bullying. It is an experience to be evaluated from at least two perspectives. There are forms of behaviour which may not amount to bullying, but are nonetheless poor. A negative performance review is not bullying, though much depends on how it is behaved.

The Honourable Michael Kirby has written much on the topic of judicial stress.^[38] In 2013, he turned his attention to judicial wellbeing and sent out a call to judges to think on how they may be inflicting their stress on others through bad tempered or unreasonable behaviour, or even bullying.^[39] I think the call bears reiterating. As I have said, to treat people poorly and to bully is to fail to respect that personaEURtms dignity, even if unintentionally. Judges occupy positions of immense power and control, partly and importantly, as a feature of the guaranteed and constitutional independence of the judiciary. It can be a position in which, if you arenaEURtmt careful, you can be blinded by your position and carried away with your own importance in the context of the lawyeraEURtms duty to the court.

To address judicial behaviour, amongst other things, we need to help judges to address their own stress and wellbeing.^[40] The Federal Court has had in place for a number of years a confidential judicial counselling service and recently, under the guidance of Justice Katzmann, the Federal CourtaEURtms Judicial Wellbeing Committee have established a comprehensive gateway to expert resources, tips on managing stress and mindfulness techniques. As similar portal exists for staff, which provides confidential, independent call assistance and resources. The Court also runs resilience and wellbeing programs throughout the year. Further, in the pandemic as we switched to remote work, the Court utilised Microsoft Teams to help staff and judges maintain connection: there are forums to share recipes, pet photographs, participate in yoga or trivia or learn about your colleagues through interviews with our head of human resources.

Just like all other members of the profession, and might I say modern society generally, judges should be proactively concerned with their own wellbeing. Emotional expression, self-reflection and self-awareness can greatly benefit ourselves and our colleagues. Normalising such conversations can reduce a sense of isolated struggle and enable problem-solving. It can also aid in avoiding unintentional bullying and unkindness.

The COVID-19 pandemic has compounded the demands and stresses on many lawyers, including through home-schooling obligations, loss of work, the need to adapt to new working environments, and human disconnection. But it has also thrown into the mainstream discussions about mental health and wellbeing. It has offered liberation from old shackles and engendered a new appetite or at least begrudging acceptance of change and flexibility.

Law schools, bar associations and law societies and law firms and agencies have become acutely aware of the need to educate their members on mental health, to provide training in anticipation of stress and support for when it arises.^[41] These initiatives have, in many cases, been on foot for a number of years. The pandemic has given the efforts new energy and brought them to the attention of the formerly disengaged.

At the same time, courts, firms and government have been working to formulate a robust framework of policies and procedures to address misconduct.

In this respect, I acknowledge in particular the work of Chief Justice Kiefel and the Council of Chief Justices, which has been proactive and cooperative in responding to the problems facing the legal profession.

In respect of Federal judges, Commonwealth legislation provides mechanisms through which complaints about judicial conduct can be made.^[42] In the Federal Court, s 15(1AAA) of the Federal Court of Australia Act 1976 (Cth) provides for complaints to be made to the Chief Justice, which is complemented by a longstanding Judicial Complaints Procedure publicly available on the CourtaEURtms website. In addition, in August 2020, Chief Justice Alstergren of the now Federal Circuit and Family Court of Australia and I, together with the President of the Australian Bar Association, and through him, the Presidents of the State and Territory Bar Associations, agreed to a new protocol for an alternative, less formal mechanism of reporting judicial conduct. The protocol enables members of the Bar to raise concerns about judicial conduct with any President of any Bar Association, who then may raise the concern directly with the relevant Chief Justice.

Further, in light of some then recent events, the Federal Court engaged independent external consultants to undertake an audit of workplace behaviour and conduct. Those consultants produced a report based on confidential discussions with staff and judges. The Court then established a Judicial Workplace Conduct Committee comprised of judges and the Executive Director of People, Culture and Communications to examine the findings and assist in the development of a Judicial Workplace Conduct Procedure. Separately, the Court developed in consultation with staff, the Respectful Workplace Behaviour Policy, applicable to all staff.

I think it is important that I set out, transparently, some of the content of the Judicial Workplace Conduct Procedure. It commences with a statement of commitment by the judges of the Federal Court to contributing to a culture of respect and courtesy in the workplace; it acknowledges the right to a safe and respectful workplace; it derides bullying, harassment, sexual and non-sexual in nature, discrimination, victimisation and behaviours that are offensive, abusive, belittling or threatening as unacceptable. The stated goal of the Procedure is to provide a sensitive, prompt and effective means of resolving complaints about judges, including by ensuring accountability for unacceptable behaviour, support for participants involved, confidentiality and procedural fairness. The Procedure enables the Court to obtain external assistance to ensure impartiality and fairness and it sets out the avenues of assistance put in place by the Court if any person wishes to make a complaint: staff members may contact the Chief Justice or instead trained Harassment Contact Officers, People & Culture team members, employee assistance providers or an external provider for confidential support, information and advice.

The message, I hope, is clear: harassment, abuse and bullying will not be tolerated; you should have a right to feel safe, included and respected at work. You should feel safe to speak up; you will be listened to and matters will be dealt with, with confidentiality, due process and integrity.

Professional bodies have a key role to play in upholding the ethical and moral standards of the legal profession in the public interest.^[43] Many codes of conduct now make clear that lawyers must not engage in bullying or harassment and that any such behaviour may be investigated and may be found to constitute professional misconduct.^[44] Pleasingly, the law societies and bar associations, as well as other professional organisations appreciate that these rules must be accompanied by genuine measures addressed at reforming the cultural and structural problems facing us. They see the need to proactively address power imbalances, lack of inclusion^[45] and diversity, mental health and wellbeing.

For example, in 2016, the Law Council of Australia launched an equitable briefing policy to support and encourage women at the Bar and in superior courts. This policy has been endorsed by Bar Associations and Law Associations across the country. In 2019, the Office of the New South Wales Legal Services Commissioner launched a program with a new trauma-informed reporting process aimed at improving the culture in the NSW Legal Profession. In July 2020, the Law Council convened a National Roundtable to address sexual harassment and in December 2020 published the National Action Plan to Reduce Sexual Harassment in the Legal Profession, following the Australian Human Rights CommissionaEURtms Respect@Work report.

In Queensland, the Law Society has established a support line through their Ethics and Practice Centre designed to assist practitioners dealing with harassment, bullying and discrimination in the workplace. They also provide an on-demand toolkit to combat those behaviours in the profession, in relation to which training sessions can be undertaken for CPD points.

Law firms, particularly large ones with considerable influence, should, and many have, taken up similar commitments.

Conclusions

Society at large and members of the profession, rightly so, expect a high standard of behaviour from the legal profession. In order to maintain the standing of the profession; to meet intergenerational expectations; and to encourage and support the inclusion of women and people from diverse backgrounds to enter and remain in the profession and to take up positions of power and leadership, we must change. We should support diversity in our leadership positions, including to further public confidence in the judiciary.^[46] We need to encourage safe and respectful relationships and take genuine measures to support diversity and inclusion so that our culture and composition reflects that of general society.

In order to support the mental health and wellbeing of our members and colleagues, we need to speak about it and we need to turn a critical eye to our ways of working; what are we doing and why and could it be done differently? What can we learn from the pandemic and how might our usual way of doing things be supporting or hindering the work of our varied lawyers, many of whom do not fit the traditional mould of the confident declaimer.

We need to recall the primacy of our professional obligations, particularly in the face of competing revenue pressures. We need to examine our ways of thinking and working; are they connected to the human context in which they reside and to which they relate?

There is always the danger of abstracting these issues with words and labels: transforming an important discussion into an almost meaningless collection of clichA(c)s. However, sexual harassment and bullying are not words, they are misconduct, misconduct that harms, sometimes deeply, and is an affront to the dignity of the person. They are antithetical to the sponsoring and flourishing of talent and to the administration of justice in a just society.