#544: How to Build a Respectful Legal Workplace, with Erika Harold

Episode Notes

Transcript

Zack Glaser (00:12): 

Hi, I’m Zack. 

  

Stephanie Everett (00:13): 

And I’m Stephanie. And this is episode 544 of the Lawyerist Podcast, part of the Legal Talk Network. Today, Zack’s talking with Erika Harold about professionalism in the workplace. 

  

Zack Glaser (00:24): 

Today’s podcast is brought to you by NetDocuments. Stick around and you’ll hear my conversation with them here in a little bit. 

  

Stephanie Everett (00:30): 

So Zack, you actually did this interview when we were back at the CLE conference. 

  

Zack Glaser (00:35): 

Yeah, I did. We went to CLE Con and we show up there as media. I do a lot of interviews with the Cleo C-Suite and interviews with various people that we find interesting and have great stories. And Erika had contacted us about talking about they have a report on civility in the workplace, and it was an interesting conversation to talk about bullying really. I mean, if we get down to it, that’s what we’re talking about is bullying in the legal sphere. And I think that’s probably something that people can, I hate to say this, I think people can find themselves on both sides of that in this. It was a conversation that made me kind of look at myself as well and say, at what point is kind of just jockeying for position being a bully going too far, and that’s when you’re just dealing with people across the table. But there’s a lot of this type of thing that goes into the workplace, bullying in the workplace and intimidation in the workplace. 

  

Stephanie Everett (01:50): 

Yeah, I mean, for sure. As lawyers, unfortunately, I see way too many stories of lawyers saying opposing counsel did fill in the blank, and it’s some pretty terrible, not really, not empathetic, nice behavior. 

  

Zack Glaser (02:08): 

Yeah. I’ve actually had bailiffs in court stand between me and other attorneys because they were being that rude while I was sitting in my chair, 

  

Stephanie Everett (02:23): 

And I’m sure you guys talked about this, there’s a line between advocating for your client and being that fierce advocate that of course, we want to be and crossing this line into bullying. So it’s probably one, I imagine too, this is one of those episodes that it’s just a good reminder maybe just to make you step back and think like, wait, did I, have I crossed a line, or am I even approaching a line that I don’t want to approach? 

  

Zack Glaser (02:50): 

Right. I think so. Yeah. Well, without further ado, here is my conversation with Erika that we filmed at CLE Con. 

  

Zack Glaser (03:00): 

Hey all, it’s Zack, the legal tech advisor here at Lawyerist, and I’m here with Erika Harold, and we are talking about something that I think is not talked about enough in the legal industry, but is obviously there, big elephant in the room, and that’s bullying. And Erika and her organization has done a study on bullying among lawyers, if you will, though, give us a little bit about yourself, the organization and the study. 

  

Erika Harold (03:26): 

Well, thank you so much for having me. My name’s Erika Harold. I’m the executive director of the Illinois Supreme Court Commission on Professionalism, and we were created by the Illinois Supreme Court to promote civility, ethics, inclusion, and integrity among Illinois lawyers, judges, and law students. 

  

Zack Glaser (03:43): 

That is a, it’s a high bar. 

  

Erika Harold (03:48): 

It’s a big audacious mandate, but one that’s inspiring. 

  

Zack Glaser (03:52): 

Right? Yeah, it is inspiring. It’s difficult. I think we all know that it’s necessary. So in doing this, you guys went and thought, okay, well let’s get some information about this. Let’s do some sort of study. And what did you guys wind up with? 

  

Erika Harold (04:09): 

We did a study that we worked with an organization, the Red be group that helped us with this. And we did first an anonymous survey and we didn’t know how many lawyers would respond. We sent it out over 6,000 Illinois lawyers responded to this survey, and then focus groups, we did 10 different focus groups. That way we could dive a little bit deeper on some of the data to find out more clarity around lawyers’ experiences. 

  

Zack Glaser (04:37): 

So I think from a high level, we can all say, yes, there is bullying, and in some ways there’s very intentional bullying. Correct in the legal sphere, but kind of like what did you guys find on a granular level that we could affect? Really 

  

Erika Harold (04:57): 

What we found was that just in a one year period alone, one in four Illinois lawyers were bullied and we set forth a definition that looked at inappropriate behavior that was designed to either intimidate, humiliate, or control someone. And then we gave a spectrum of behavior. So we asked people just kind of the baseline question of have you been bullied? We also asked, have you bullied? But then we actually put down very specific behaviors because one of the things that was our hypothesis was that a lot of behaviors that people consider to be normal are actually bullying behaviors. So everything from insulting shouting, kind of physical intimidation where you’re hovering over someone, cyber bullying, even physical assault. And what we also found was that some groups were disproportionately bullied over other groups. 

  

Zack Glaser (05:55): 

And I think to me, that’s the thing that I kind of hang on, because there’s just being candid, there’s an element of zealous advocacy that goes with creating a power dynamic in a relationship from lawyer to Lord. But there has to be some fairness and there has to be some, I frankly not assholeness about it. I think highly technical term. Yeah, it’s highly technical term, but when it’s something that is, there’s a power balance in when it’s something that is pointedly going after specific people or specific groups, I think it takes me out of that. Okay. Well, I was trying to intimidate opposing counsel Walt in court to, this is frankly, objectively problem. 

  

Erika Harold (06:50): 

Absolutely. And we wanted to really differentiate between those types of behaviors. Because I’m a former litigator, and I understand that when you want to advocate for your client, you want to make sure to put forth the best case. And if you’re an oral argument and you feel that your opponent, for example, has omitted key information or misrepresented it’s fair game to be able to point that out. What we were looking at though are things that are inappropriate that are done to either humiliate, intimidate, or to control someone. And the control element was more towards are you trying to get someone to do something that’s unethical? 

  

Zack Glaser (07:26): 

Yeah, and I think I like teasing this out because as you’re saying, you’re specifically saying humiliate, intimidate, and control. That’s not walking into a courtroom and trying to be the 

  

Erika Harold (07:40): 

Exactly. 

  

Zack Glaser (07:41): 

That’s not trying to make sure that the judge and the jury stink. You are better than the other person. Exactly. Trying to maybe throw them off their game a little bit. But humiliate, intimidate and control is a lot more specific. 

  

Erika Harold (07:57): 

Exactly. Because we’re trying to differentiate between behavior where a lawyer would say, I’m being a zealous advocate, where behaviors, intimidation, humiliation, those have nothing to do with advocating for your client and everything to do with belittling another person. And so we were interested in that because it was also our belief that there are a lot of negative ramifications for lawyers in the profession. And when we’re looking at these really big questions as a profession about why are some of our numbers stagnant as it relates to having women attorneys of color in equity partnership positions, why do you see some people leave the profession? We wanted to look to see is it something about the workplace and the behaviors that on some level have become normalized that’s contributing to this? 

  

Zack Glaser (08:46): 

Yeah. So I guess what did y’all find that’s actionable in that area? Because I’ve beat to death the definition. Let’s talk about how can we affect, how can we affect, I’m assuming that this affects people of color more. This affects women more. This may affect younger attorneys. Absolutely. So how do we go about changing the director of a big giant ship? 

  

Erika Harold (09:20): 

We had several recommendations that were very concrete because we recognized that no one person has the power to change everything in the profession, and everyone has to do their part. So the first recommendation was for workplaces to actually have a bullying policy in place. But the reason why that’s so important is that most organizations have anti-harassment policies, but anti-harassment policies are only going to encompass behaviors that are on the basis of protected care characteristics. So bullying is not illegal under most circumstances, so people don’t necessarily have recourse. And so we looked at a policy that also addresses retaliation because our study showed that a lot of lawyers, even if they’re in a scenario where there might be hr, only 20% of lawyers actually reported this behavior and fear of retaliation, which makes a lot of sense. 

  

Zack Glaser (10:17): 

Okay. Just specifically on that, do you think that’s fear of retaliation? Is there some element of expectation? It is so ingrained in the culture of being an attorney in the law practice that somebody goes, well, that’s just going to happen. Is there a level of expectation from people where they don’t think anything’s going to be done, I guess is really 

  

Erika Harold (10:41): 

You hit the nail on the head. There are a lot of people who feel that when they have reported the response that they’ve received is you’re just talking about being a lawyer. The things you’re talking about, we are adversarial, we are competitive. And so this is just a rite of passage, and that’s one of the things we’re really trying to disrupt is this notion that this kind of aggression, intimidation, humiliation, is actually an intrinsic part of the profession. 

  

Zack Glaser (11:11): 

So when I think of having a bullying policy, and I’m trying to think of this kind of stepping outside of myself a little bit, it feels like the actual word, the actual idea of it feels kind of infantile. It feels like having a bullying policy is for elementary school. I think part of that is that we shouldn’t be bullied. We shouldn’t have to have it for, 

  

Erika Harold (11:35): 

Well, I’m so glad you referenced that because I spent a lot of time thinking about that word, and that word was very intentionally chosen. This idea of this study came because when I was Miss AmErika 2003 and my platform dealt with preventing youth and bullying, I had to leave my high school as a result of bullying and harassment. And so I made it my national platform and I talked to kids about what we should do, how we treat people, and how we don’t treat people. Once I became a lawyer, I was sort of shocked to realize that so many of the behaviors that I told children were inappropriate and bullying behaviors and were wrong, were behaviors that I was seeing pervasive within our profession. And right now there’s a consensus that bullying is unacceptable in schools. And so why would our standards be lower for our profession when we are officers of the court? And so that word was chosen for legal reasons because we’re trying to distinguish it from harassment, but also to kind of prompt that conversation, why is it okay for a lawyer to shout at another lawyer when in a classroom we would say to somebody, you may not have to like everybody, but you have to treat everyone with respect. Why wouldn’t that be the ethos for our profession? 

  

Zack Glaser (12:54): 

I like that kind of weaning into, well, it is that way because it’s that way, 

  

Erika Harold (12:59): 

Right? We’ve chosen to make it that way, but we don’t have to leave it that way. And some of the other recommendations deal with the courtroom because when we were asking lawyers, who are the people who are bullying you? We didn’t get into demographic characteristics, but we saw that some of the lawyers were being bullied by other lawyers within their firms, but other lawyers are being bullied by opposing counsel. And so we’ve talked about the need for all judges in courtrooms to have civility and bullying, standing orders, because a lot of lawyers struggle with, okay, when this thing is happening to me, what does it violates that I can actually go and tell a judge? And so we’ve talked about the fact that there needs to be these standing orders in place so that lawyers who are being targeted can actually go to the judge and say, this behavior that we all agreed would be the ground rules within the courtroom. It’s being violated. 

  

Zack Glaser (13:54): 

Gotcha. Okay. What does progress look like then in this? Because it is, in talking to you, easy to say, alright, this is problematic. It’s there, it’s huge. We’re going to have to take small steps. We’re going to have to do this, this, and this. What does progress look like? What does kind of a win in this area look like for you? 

  

Erika Harold (14:19): 

So there are a lot of different ways that we see a win. A very small win is people on an individual level deciding to treat the people around them with more respect. I was giving a presentation and I was talking about behaviors that are acceptable versus unacceptable and dehumanizing. And afterwards, an attorney came up to me and he said, you may have seen me texting during your presentation, and I did. And I kind of thought, well, I’m very compelling. Clearly he said, but as you were speaking, I realized that I had done the things that you said, and I emailed that person an apology during your presentation and told them I wanted to talk to them the next day to apologize. So to me, that’s a win. 

  

Zack Glaser (15:02): 

Yeah. 

  

Erika Harold (15:02): 

Another win is if we look at some of the metrics for people leaving the legal profession, what we found in our study was that 18% of Illinois lawyers had left a job practicing law due to workplace bullying. That’s a staggering amount when you think of how difficult it is to get a job and to leave one while you’re still practicing, 

  

Zack Glaser (15:23): 

That’s nearly one and five, 

  

Erika Harold (15:25): 

It’s a really large number. That’s huge. And so a win is people choosing to stay in the profession and only leaving if they feel like there are other ways in which they want to invest their time and talent. So that’s a win. It’s also us changing the dynamic of what’s acceptable. I know when I was first talking about bullying in school, so this was when I was Miss AmErika, but I was always given the question, don’t you think this is just unrealistic? Kids will be kids. This is just an adolescent rite of passage, but so much progress has been made. If a teacher or a principal said to a parent, this is just the way it is, kids will be kids, we would view that as unacceptable. So 10 years from now, I would want us to be having the conversation of, well, of course we shouldn’t have bullying in the legal profession. We’re better than that. 

  

Zack Glaser (16:18): 

Okay, well, so where does this go from here? Do we keep doing this study? Do we keep coming back to it in order to measure what may have happened or where we’ve gone after this? 

  

Erika Harold (16:32): 

I think there have to be some sort of implementation basis first, because we at the Commission of Professionalism wanted to start a conversation about this within the profession. We are working on some educational models to be able to help lawyers digest this and learn some very practical things to be able to draft policies if you’re a leader, to be able to appropriately respond if you’re a bystander and if you’re a person being targeted. So those are things that we need to do. Bar associations need to be involved because they have a role. We have a mentoring program at the commission. We want lawyers to be able to engage that way because as you mentioned, younger lawyers, 39% of lawyers between the ages of 25 and 35 were bullied in a one year time period. And so I would say before we measure, we really want to get people engaged and doing some of these things. I’d love to see law firms and legal organizations actually put in place those policies. And I think that once those policies are in place, if lawyers feel that their concerns will be taken seriously, they will report more and you’ll actually be able to address some of the root cause of the. 

 

 

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