ADLS sets up Courtroom Bullying committee

ADLS is tackling the issue of judicial bullying by setting up a Courtroom Bullying committee designed to help member practitioners deal with problems they encounter in courts or tribunals that they cannot resolve themselves.

Marie Dyhrberg QC

ADLS acknowledges most judges, particularly in the senior courts, are helpful and courteous in their courtroom dealings. And lawyers need to be sufficiently robust to deal with the rough and tumble of an adversarial legal system. Part of a judge’s job is to test arguments in a Socratic manner.

But, say some senior practitioners, a small group of judges is creating problems which could have serious consequences: in the words of one, “You can get a judge who can do terrible damage.”

This practitioner says he knows of lawyers who have been so traumatised by a judge’s behaviour that they’ve quit the profession. The problem is exacerbated by the fact that junior lawyers are less likely than in the past to get alongside a senior lawyer who traditionally would help train them.

The committee sees courtroom misconduct and bullying as distinct from workplace bullying, and says it might involve other practitioners as well as judges.

Senior criminal barrister Marie Dyhrberg QC has been appointed convener of the new committee. Other ADLS committee members will be drafted on a case-by-case basis to assist her, depending on the nature of the complaint.

The new committee is not intended to usurp the authority of the Judicial Conduct Commissioner (JCC) and the Judicial Conduct Panel which, since 2004, have had statutory authority to investigate complaints against judges.

Nor will it cut across the bows of the New Zealand Law Society’s work to reduce workplace bullying in the profession.

The ADLS process is not for minor complaints. Dyhrberg says committee members will accept only complaints about significant or serious misconduct that risks bringing the system into disrepute.

While the committee has not attempted to define bullying, informal complaints from members of the profession in the past have included claims of rude and belittling conduct, detrimental comments in open court, berating counsel in front of clients and unpleasant or patronising remarks.

Dyhrberg says the committee will not become involved in representation or advocacy on behalf of complainants. “We’re there to look at the conduct and provide guidance so [complainants] can process things in a way that satisfies them.”

If the committee believes further action is needed to resolve a complaint against a judge, it will help the complainant prepare a case for the JCC.

In the year ending 31 July 2019, the JCC received 158 complaints, slightly more than the previous year (154), against 191 judges (233 in the 2017-2018 year). Nine were referred to a head of bench (eight in the previous year).

In the first instance, complainants to the ADLS committee will be asked to complete an online form. All information will be confidential although if the complainant decides to take the matter further, natural justice will likely require that he or she is identified. But this will not be done without written consent.

The committee’s other function is to collect and collate anonymised information so a database can be built up on types and patterns of misconduct and poor courtroom behaviour. Right now, no such database exists.

The judiciary itself is not unaware of the problem. Chief Justice Dame Helen Winkelmann used part of her Dame Silvia Cartwright lecture in Auckland last month to comment on judicial bullying, saying a “judicial temperament” was one of the qualities required in a judge.

“Once upon a time it was acceptable that a judge could be abrupt and even rude to counsel, and occasionally litigants,” she said. “But a growing intolerance for bullying in society has now extended to bullying by those who exercise power.

“That is how it should be. My predecessor Dame Sian Elias was right to say that bullying by judges is not acceptable and that all judges are expected to deal with litigants, witnesses and counsel with respect and courtesy.”

Just how rife bullying and sexual harassment are among lawyers was revealed in a groundbreaking global survey done by the International Bar Association earlier this year, which revealed Australian lawyers to be among the world’s worst offenders.

Globally, one in three female lawyers has been sexually harassed at work and half have been bullied. For male respondents, the figures are one in 14 for sexual harassment and one in three for bullying.

The report, Us Too? Bullying and sexual harassment in the legal profession, surveyed nearly 7000 lawyers in 135 countries and in six languages. It is the largest-ever survey of its kind.

Australia has some of the highest reported rates of bullying and sexual harassment in the world: an eye-watering 73% of Australian female lawyers and 50% of men said they had been bullied in the workplace.

Rates of sexual harassment are also significantly higher than the global average: 47% of Australian female respondents and 13% of men.

In some cases, country-specific data were extracted. New Zealand was not in this group although Kiwi lawyers were among the respondents and these responses were referenced several times in the IBA’s report.

The report also mentioned last year’s Colmar Brunton survey where 57% of New Zealand lawyers said they had been bullied and 18% sexually harassed at some point in their careers.

How the Courtroom Bullying committee will work

As the old song goes, we live in troubled times. For the legal profession, one of these troubles is bullying.

As a result, ADLS has set up a Courtroom Bullying committee, effective February next year, to address bullying and inappropriate courtroom conduct, as distinct from bullying in the workplace.

It is not confined to conduct from the bench or decisionmaker; it covers courtroom behaviour in general and will include bullying by judges and/or another lawyer, who may be more senior to their target.

The committee is not designed to interfere with the work and procedure of the Judicial Conduct Commissioner, nor the informal NZLS-established process for dealing with lawyers’ concerns about judges’ courtroom conduct through a heads-of-bench approach facilitated by senior NZLS representatives.

Nor does it conflict with the duties and obligations on all members of the profession under the Lawyers and Conveyancers Act 2006 about misconduct or unprofessional conduct.

The ADLS Council appointed a working group in March to investigate and consider setting up the committee.

The committtee’s aims are to:

  • assist ADLS members grappling with an issue or incident of inappropriate or bullying behaviour during a court or tribunal hearing;
  • help members to provide information in strict confidence, aimed at redress or resolution in respect of injured feelings or intimidation;
  • fill the perceived absence of statistical data and information about bullying complaints; improve the reliability and objectivity of collecting and collating such information;
  • help identify those among our profession who might be repeatedly engaging in inappropriate behaviour and help provide corrective measures such as guidance and counselling; and
  • enable other members to report, confidentially, what they have observed happening to another practitioner who is being subjected to bullying or inappropriate behaviour.

We hope the committee’s work will not only help affected members on a personal level but will also help the profession to identify problems and issues so corrective measures can be taken.

The collection and collation of information and any complaints will be confidential. We also aim to fill the perceived gap in statistical data on poor courtroom conduct and expect this will be valuable in helping to identify, correct and minimise inappropriate or bullying behaviour in the future.

If it becomes necessary to take complaints further, any information that might identify the complainant/s will not be disclosed without their prior written consent.

The committee acknowledges that judges have obligations to run their courtrooms effectively and efficiently, sometimes in challenging situations (such as where there is a self-represented litigant).

So, they sometimes have good grounds to take a strong approach with counsel appearing before them. Emotions can also run high in a courtroom and lawyers need to be sufficiently robust to handle courtroom rough and tumble.

At the same time, recent focus on the culture of the legal profession and allegations of bullying and harassment have revealed the courtroom can also be a place where aggressive behaviour from those in a position of power can occur.

(See barrister Elizabeth Hall’s survey, indicating that of the 283 responses received, 88.1% stated they had personally experienced or witnessed harassment or bullying behaviour. Of those responding in this way, 64.7% indicated it was a Judge doing the bullying or harassment.)

This behaviour is not confined to judges. Sometimes senior counsel can abuse their position of authority – for example, through inappropriate interaction with the judge because of a close acquaintance.

The judiciary is aware of the spotlight on this issue and judges have undergone training to reduce the chances of it becoming a problem.

It must also be acknowledged that lawyers can sometimes benefit from direction or further training on courtroom etiquette, procedures and appropriate preparation to avoid situations where judges may need to take a strong line with counsel appearing before them.

It is important to be sensible in distinguishing between what is an appropriate censure and/or educative comments from the bench and what goes beyond what might be deemed appropriate.

It is widely accepted that where a judge’s behaviour is called into question, reputational risk to practitioners in raising the matter, whether it be through a complaint to the Judicial Conduct Commissioner or otherwise, reduces the opportunity to shine a light on, and address, repeated instances of poor conduct.

Leaving patterns of inappropriate judicial behaviour unaddressed is not only unsatisfactory from a practitioner’s perspective but is not in the interests of justice.

Counsel should not feel they need to concede to a judge when this is not warranted.

The ADLS Courtroom Conduct committee will not be restricted to dealing with issues arising in the courtroom: its remit includes all advocacy forums where lawyers appear – for example, the Employment Relations Authority and tribunals.

When it comes to process, one starting point might be a conversation about what counsel who witnessed the bullying can do to relieve the situation before it becomes detrimental to the target and/or their client.

The committee might also seek clarity about whether a lawyer is entitled to ask the registrar for a transcript of the court proceedings or even a copy of the in-court recording so the committee can assess the inflections and tone of the exchange.

This might be a helpful mechanism to keep in check any improper judicial behaviour towards counsel rather than having to deal with it after the fact.

Practitioners seeking information or wanting to contact the committee for assistance can make contact in the first instance through email: committee.secretary@adls.org.nz.

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