Bullying in the Legal Profession

Episode Notes

Transcript

Trisha Rich:

Hello, hello, hello everyone and welcome to CBAs @theBar podcast where we have conversations about legal news, events, topics, and other things we think you’re going to find interesting. I’m one of your hosts today, Trisha Rich of Holland Knight and co-hosting the pod. With me today is Mathew Kerbis an attorney with subscription attorney LLC and one of our newest hosts here @theBar. Matt, as always, love seeing you and I’m thrilled to be here together,

Mathew Kerbis:

Likewise, and in person, which is great.

Trisha Rich:

I know we’re back to recording in person, which is actually awesome. And joining me and Matt today is one of my friends, Erika Harold, the executive director of the Illinois Supreme Court Commission on Professionalism. Erika and I joined a commission together as commissioners eight years ago after being tapped by different Supreme Court justices to serve in those roles. But Erika’s journey didn’t end there almost three years ago now. She transitioned from being a commissioner after being appointed by the Illinois Supreme Court to lead the commission as its third executive director. Erika is a dedicated advocate for civility, empathy, and inclusion, which made her a perfect fit to lead what I believe is the nation’s leading civility program in the law. Prior to her time at the commission, Erika had a very interesting and varied career that included Harvard Law School, a litigation and employment law-based legal career. Famously a stint as Miss AmErika, a brief runway into politics, and notably leading a robust anti-bullying platform, which is what brings us here today. Erika, my friend, my colleague. It’s my absolute pleasure to welcome you to @theBar.

Erika Harold:

Thank you so much. It’s such a pleasure to be here.

Trisha Rich:

Okay, so we are here today to talk about the commission’s new study and subsequent report about bullying and the legal profession, which came out in October of this past year. Could you start by just sort of setting the stage on this project?

Erika Harold:

Absolutely. This project in many ways has been many, many years in the making. As you alluded to in the introduction, I had been involved in bullying prevention earlier in life. It was my platform when I was Miss AmErika. And the genesis for that is when I was in high school, I was the victim of severe racial and sexual harassment escalated to death threats, and I ultimately had to transfer to a different high school. That experience, first of all was the catalyst for me wanting to become an attorney because that feeling of being powerless made me feel like I wanted to be able to acquire the skills necessary to be able to advocate for myself and other people. But I also committed to myself after I left that high school that if I was ever in a position to be able to make a difference on the issue of bullying and harassment that I would do.

So I had a fantastic opportunity to be able to do so as Miss AmErika. I made it my national platform and was able to speak to more than a hundred thousand students about this topic. And I was able to an actual change in the way policy and law and culture viewed this topic because at the time people viewed it as very much an adolescent rite of passage. Kids will be kids, sticks and stones will break my bones, but words will never hurt me. But as advocates were fighting to actually protect kids in school, we started to recognize how is it fair to expect a child to go to school and to perform at their best while they’re being targeted at a time when the adults should be protecting them? And so as I went ahead, graduated from law school, entered the legal profession and was really surprised to see that so many of the behaviors that I told young people were unacceptable in terms of insults, name calling, shaming seemed to not only be normalized within our profession, but sometimes were celebrated as signs of zealous advocacy or toughness and aggression. And so when I was appointed to be the executive director of the commission, our mandate from the Supreme Court is to focus on those issues of civility, of professionalism, of inclusion and wellbeing. And this issue of bullying in the legal profession is at the intersection of all of them.

Trisha Rich:

So I think of the commission’s real focus on bullying to be something that came with you. We both served as commissioners prior to you becoming an executive director for four or five years. And while we were talking about all of these things in a way that I think is actually really groundbreaking when you look at other professionalism commissions around the country, we weren’t really focusing on bullying. And I think that was a thing that when you came in, you really articulated in a way that we hadn’t previously seen at the commission or even maybe even in the legal profession at all.

Erika Harold:

One of the things that’s really unique about this study is I believe it’s one of the first wide scale studies on bullying in the legal profession in the us. And people talk about certain aspects of it, but you’re right, we don’t use that word. And using the word bullying is really powerful for a couple of reasons. First of all, it gives a name to behaviors that people experience but aren’t quite sure why they feel uncomfortable with them. It’s distinct from incivility, it’s distinct from harassment. So it doesn’t necessarily have certain recourses for people who are targeted. And when you think about bullying, most people think about schools and we really do want to ask the question why should behavior that we would say is unacceptable in schools be acceptable in a profession like ours where we are required to uphold due process, rule of law, equal protection, if those are supposed to be the values that animate our profession, how can we tolerate and sometimes celebrate behavior? That’s the antithesis of it.

Mathew Kerbis:

So I think there’s no surprise when we learn from this report, yeah, there’s bullying in the profession and maybe that’s why some other commissions on professionalism haven’t actually done this type of an in-depth report. But now thanks to report, what we’re seeing is the actual data that proves and shows where and how bullying is happening. So is that sort of another reason that you wanted to actually do this in depth study when maybe you think why some other commissions just said, yeah, it’s a problem.

Erika Harold:

One of the things we found is that some people didn’t necessarily believe that it was a problem or recognize it as a problem because of some of the norms within our profession where people would just assume that yelling at someone is a sign that you’re having high standards for your clients and there’s tough

Mathew Kerbis:

Love,

Erika Harold:

Tough love, or people say, I’m just trying to train you to be able to be aggressive in the Courtroom, or we’re just holding high standards.

Trisha Rich:

What are you going to do when a judge yells at you?

Erika Harold:

Exactly. So there are so many norms and they’re a really interesting intersection of power dynamics. And so hierarchy is also built into our profession, and I think that it’s viewed in many ways as acceptable and you’re not able to address problems that you don’t accurately name. And then in a profession like ours, you need to be able to quantify the scope of it and then the breadth of the problems, not just for the individuals who are targeted but for the profession as a

Trisha Rich:

Whole. Can you talk a little bit about the design of the study and the process of the study? Just to give people sort of an understanding of the landscape and how broad it really was?

Erika Harold:

We were very fortunate to work with the Red B Group. It’s a women owned consulting firm based in Chicago, and it’s comprised and led by very accomplished lawyers. So not only are they researchers, but they’re lawyers, so they have a really expert way of looking at the behavior. And what we did is we wanted to figure out how do we both get data but also experiences. What we found is that the sense of urgency around galvanizing people to address this really comes from the stories. So we started out with a statewide survey of all active Illinois lawyers. We had over 6,000 lawyers respond to the survey. It absolutely blew our minds. So many people responded. I was hoping that we would get at least a thousand because we wanted to be able to do a deep dive into some of the demographic components of the data. But we had over 6,000 lawyers respond to the survey. And then after the survey was done, then we did 10 different focus groups focused on statewide geographic issues, age, various components of this survey and the population in order to make sure that we were able to get some follow-up information about people’s experiences. And then once that data was compiled, we put together a report. The red B group authored the report, and then we had a fantastic advisory counsel of Illinois lawyers and judges who reviewed the report, provided thought leadership, and then the report was,

Mathew Kerbis:

So this is a combination of qualitative and quantitative data in this report

Erika Harold:

Absolutely perfectly stated.

Trisha Rich:

Well, and I think I should note that reflects almost a 10% return rate of Illinois lawyers as a whole. I mean, it’s an extraordinary number.

Erika Harold:

It’s an extraordinary number. And what was also so fascinating was that so many people took time to write responses in if you have anything else to share, that’s one of the things the Red B group said that stood out was the response rate and the fact that people were so eager to share their experiences. The data looks shows that people are very hesitant to report this kind of behavior for fear of retaliation, but providing people the anonymity of being able to share their experiences without having to provide their name or the name of their employer, I think really empowered people to share.

Trisha Rich:

Yeah. Well, I mean it’s fascinating. I am jumping ahead a little bit here, but it’s fascinating to read the report because one of the points you made earlier is some of this stuff is so normalized in the practice of law to read it as a woman that came up in this practice like you did, and think about all the things that have happened to me even as recently as the last year and see it and it’s like, oh my gosh, that happened to other people are like, I’m not alone. I mean the findings of the report are just really compelling. I think

Erika Harold:

People being able to see their experiences reflected in the report helps people to recognize that they are not alone and that it’s a systemic issue. And so our data found that in a one year period, nearly one in four lawyers were bullied and we defined bullying as being inappropriate behavior that was designed to either intimidate, humiliate, or control the behavior of another person. So we were looking at intent and we wanted to provide people with a very specific definition. And then once we had that definition, we outlined some of the most common types of bullying behavior, everything from insults, name calling, cyber bullying, stalking, physical behavior. We also named some other things that we considered bullying. They might be debatable to some people from our perspective, they are bullying excessive criticism of people’s work, setting people up to fail in certain ways, holding people to disparate standards, excluding people from opportunities that they should have ordinarily earned the right to be part of. We wanted to put all of those things. And so it’s a spectrum of types of behaviors and people were able to identify the behaviors that they were subject to in the past year.

Trisha Rich:

Yeah, I think that’s an important point. There is a continuum here and there are some people that might look at some things on the far left side I guess, of this continuum and say, is that really bullying or is that just me telling you to do your job? And then on the far right side, you would see I’m holding my left right hands for our listeners who are not in the room with us On the far right side, you see straight up harassment crosses not only moral and ethical lines, but legal lines in a lot of cases. And so I think you’re right that there are some things that this reporting uncovers that you may have some people come into this room and say, that’s not really bullying, right? Me telling you you have to show up to your job or be on time or when is criticisms excessive? But undeniably, I think this report shows a real prevalence of stuff that also unquestionably crosses a line.

Erika Harold:

Absolutely. And there were a couple of things that surprised me in the way people responded to this. First of all, I did expect far more people to come up and say, I just think this is regular behavior. I don’t view it as bullying. And I had all the comebacks ready that I was prepared, all of my little pithy quips. But very few people have actually come up and said, I’ve read that and I don’t think it’s bullying because when you read certain behaviors in the context of all of the other behaviors, and you look at the power dynamics, you start to recognize, oh, well excessively criticizing someone when I’m not excessively criticizing someone else is targeting people. It gets to that intent and it does have repercussions for their career. And so I’ve had far fewer times to use my little pithy quips than I had anticipated.

The other thing that was really surprising is I’ve had people come up and say, I took the survey. And as I was going through that checklist of behaviors, I realized that I have actually bullied people before. And it wasn’t until taking that survey that I realized that behavior that I thought was just being a good leader, a good manager actually crossed the line into bullying people and they expressed real regret. I remember one person said, I can remember this young man’s face as I was screaming at him for having missed a deadline. And he said his wife was on the phone and I knew that and I couldn’t make myself stop. And he said afterwards, I just told myself I was just trying to do right by the client, but he said, I still remember the way he looked there sitting behind that desk just looking so beaten down and I couldn’t stop yelling. And he wanted to do better. So one of the opportunities that I think we have with this report is that we have the opportunity to help train people how to be better leaders and managers. Our goal is not to say it’s okay to miss deadlines. It’s okay to somehow shi your responsibilities to clients. It’s actually to teach people how to lead well and to lead in ways that align with the professional values that our profession and also will actually make the people at your law firm perform more efficiently and effectively.

Mathew Kerbis:

Erika, that’s incredibly powerful. And I think it begs the question, what was the pithy quip that you didn’t get a chance to use that you’d like to let everybody know? Because one of the benefits of having a podcast is now you have an opportunity to share some of your pithy quips. And I’m certainly curious, although I’m sure you’ve been touching on them throughout the interview so far.

Erika Harold:

Well, I would say I probably raised theBar because if I say it’s a pithy quip, people are going to say, well, that’s not a pithy quip. I’m very glad that you didn’t get a chance to say that.

Mathew Kerbis:

Alright, so now that we’ve level set that, so

Erika Harold:

Let’s lower theBar of expectations,

But I was really going to ask them, tell me why you think it’s appropriate to do that behavior and tell me why you think it’s the best way of managing or communicating with someone else to do that.

Trisha Rich:

Well, and to your point earlier, if it wouldn’t be allowed in a third grade classroom, why do you think it’s allowed in a Courtroom?

Erika Harold:

Exactly, exactly.

Trisha Rich:

How’s apathy?

Erika Harold:

You know what, Trish, I should have had you do that. So I think I be a snap comeback girl. That is right. We need to have an official committee on the commission.

Mathew Kerbis:

I have a 4-year-old daughter right now, and I mean there’s something about maybe daughters being more empathetic, but she will tell you yelling is not nice. Whether it’s daddy getting a little upset that she’s not doing something that I’m asking her to do or something at school where something happens there or out in public and she hears somebody being loud, she knows a four-year-old child knows that raising your voice is not nice. And if it’s simple enough for a little child to understand that that’s something that you don’t do, that the profession does it like it’s a well-known thing that lawyers raise their voice is a sign that that’s something that we should be more cognizant of. And this report helps with that.

Erika Harold:

You hit the nail on the head that young children understand almost intuitively and instinctively behaviors that are inappropriate.

They know how those behaviors make them feel and they know that when they’re doing that to other kids that they are actually intentionally trying to get a reaction. And so one of the things we also found is that lawyers said that law school was a place where they started to learn that some of these behaviors are things they should actually adopt to be a good lawyer. So how do you show that you’re tough? How do you show that you’re a fierce advocate? How do you show that you’re competitive? And so we hope to as a commission, to also look at what we can bring to law schools in terms of programming to raise this as a specific issue and to try to shift the norms that a sign of being a good lawyer is not yelling, it’s not berating. When I think of some of the most formidable lawyers that I’ve litigated against, they were some of the nicest people. They were so confident in their skillset, they were so well prepared, they were happy to give an extension because they were confident they were going to win. That’s a sign of a good lawyer not having to call someone a name, crowd their space in court and make them feel less than.

Trisha Rich:

You mentioned earlier one of the findings of the report that was one in four lawyers had reported in the prior year being bullied. I want to just go through some of the other brief findings of the report if we could before. So we sort of finished table setting for those people that haven’t had the opportunity to read it yet. And by the way, it’s on the commission’s website. It’s 80 plus pages long, but there’s a very nifty executive summary and there will be some programming coming out about the report as well. But Erika, first, can you just talk about some of the other findings?

Erika Harold:

Absolutely. One of the things that was very striking was that although nearly one in four Illinois lawyers reported being bullied in the past year, there were certain groups of attorneys that were disproportionately impacted and bullied at a higher rate. So that unfortunately that did not surprise us. So for example, attorneys of color were targeted disproportionately African-AmErikan attorneys were targeted. About 35% of black African-AmErikan attorneys were bullied in the prior year. Attorneys with disabilities were disproportionately targeted. Approximately 38% of attorneys who have a disability were bullied. In the prior year, female attorneys were disproportionately targeted. 38% of female attorneys in Illinois reported being bullied in the past year, oftentimes in ways that were specific to gender. And so there are ways in which this bullying also intersects with harassment. And you’re seeing people disproportionately targeted younger attorneys. That was not surprising. But if you look at the number one group of attorneys that are targeted, it’s attorneys between the ages of 25 and 35, it’s not surprising. What it shows though is about this is intentional behavior. It’s about power dynamics and all of the reasons why people feel discouraged from reporting, keep people from being able to seek recourse.

Trisha Rich:

The younger attorney data point to me was maybe the least surprising. And I’m sure you had this experience when you were coming up, and Maggie, I’m sure you did too, where in its mildest form you would get opposing counsel say, I’ve been doing this a long time and I’ve never blah, blah, blah. I had somebody do that to me last year in a deposition like six months ago. I’ve been practicing law 18 years now. We were in New York, and so it’s the New York rural, unlike Illinois for depositions, this is seven hours. And so they have the federal court rule and six hours and 58 minutes. I was like, okay, we have two minutes left. And he was like, oh, I have another 10, 15 minutes to go. And I was like, I’m sorry, I have a flight to catch. My client’s been here for seven hours, we have to go.

And he was like, I have never had anybody walk out of it. And I was like, I’m sorry, you’ve never had anybody hold you to the rule established rules. I was like, I’ve been practicing law almost 19 years and I’m still having somebody try to pull this power dynamic of age and experience over me when all I’m simply saying is I have been sitting here all day, I would like to go home now. My client would like to go home. Now there is a rule for a reason. And I’m like, there’s no way What you’re saying is true, but also it’s not you’re still trying to do this to me and

Erika Harold:

You’re still trying to bully. Instead of saying, wow, I didn’t plan my time appropriately. I didn’t ask the questions I needed to ask. And again, it kind of shows the intent of trying to make people feel undermined and you had the experience to know exactly what the rules were and to see through it. If someone’s in their first or second year, you can easily say, oh, okay, well I may not know the rules or I don’t want to be viewed as a novice at this

Trisha Rich:

And I’m trying to be agreeable and get along and I don’t want to cause a big ruckus in front of my client. I can’t speak for our friends on the transactional world. But I feel like in litigation at least, it’s so often used as a litigation strategy and that to me is really frustrating. But when I read the report, when we were doing the research for the report, it felt very familiar.

Erika Harold:

The sad reality is probably every lawyer has had an experience being bullied and just sort of wrote it off as the cost of being in the profession. And that was one of the things we found that people just thought to be in this profession, I have to on some level be willing to tolerate bad behavior. And then for other people it was, in order to be successful, maybe you have to be willing to engage in bad behavior.

Trisha Rich:

And on that cheerful note, let’s take our first break

Mathew Kerbis:

And we’re back, Erika, when I was preparing for this interview, I had already just read the executive summary before I even knew we were going to interview you because I was really interested in the topic having been bullied in my youth, but also when I was just getting started practicing law. And I will say that 86 pages was a lot for me to actually look at the full report. So what I actually did is I put it into an AI tool and I made an ai, British voice read me the report. But what’s interesting about that is I got to hear these quotes being read

That are in the report versus just reading them. And there was something to hearing the things that the people were saying about being bullied and then describing their demographics, right? White female lawyer in law firm that hit extremely hard and sort of gave me flashbacks that I had long forgotten. Look, I’m a white male. I have privilege related to that. So I don’t want to say victim and sound like I was a victim, but I received some bullying. And one of the reasons I started my own law practice and stopped working for other lawyers is now I am in control. And I also completely left litigation because that’s just a space where it encourages this unfriendly behavior even amongst attorneys at other firms. And I know some of the data shows that there’s 33%, I think of respondents said they received bullying from another lawyer at a different firm. So don’t want to deal with that anymore either. So I had to start my own practice and I had to pivot from practice areas, from litigation to transactional just to avoid having to be in that world anymore. So tell us about some of the other stories and data that you received on those types of things.

Erika Harold:

Your experience is reflected in that data. We saw, and this was probably the statistic that most surprised me, was that nearly 20% of lawyers have actually left a job practicing law due to bullying. And that was a staggering number to me because when you think about how risk averse many lawyers are, the fact that a lot of us become lawyers because it’s the logical next thing to do with our skillset and the amount of energy it takes to find a new job or to start a new firm while you are practicing, that requires a lot. And so when you think about the kind of behavior and conditions that someone must be experiencing in order to decide this is my best option, it’s actually really heartbreaking because I’ve had other people say, I’ve started my firm because I wanted to get away from bullying. And I think it’s wonderful when people start firms, but it should not have to be that it’s a response to terribly toxic behavior.

One of the things that you said really struck me when you talked about how hearing those quotes really had power, we really wanted people to find themselves in those quotes and in those experiences. And we knew that certain groups of people would be targeted more than others, but we also knew that there wouldn’t be any type of lawyer that would be immune or insulated from this type of behavior. And that was something we wanted to really come across so that regardless of someone’s background or whether they felt that they had privilege or not, that they would feel validation in seeing that other people like them were experiencing this behavior and that it had a very harmful effect on their career and that they would feel a sense of empowerment and they wouldn’t feel a sense of stigma or shame, but a recognition that this could happen to anyone. And this is happening to so many people I know. Let’s take action

Mathew Kerbis:

Also, that’s not to say that I didn’t enjoy working at the past firms that I worked at before starting my own practice. Of course,

Trisha Rich:

Disclaimer, I loved those jobs.

Mathew Kerbis:

Everyone was very supportive in other ways too. There were just some situations and it’s not a reflection on the firm itself, maybe on the firms, the behavior of some bad people there, although it can be a reflection on the firms, which I think is another eyeopening aspect of this report. And the sad thing is I do a lot of mentoring for law students and young lawyers, and I find myself telling law students, I think you should start your own practice because I’ll tell you, working at law firms can be no fun.

Trisha Rich:

I mean, the challenge with that though, you’re absolutely right. And I say this as a person who’s spent her entire career at the same law firm. So I don’t really, but I work with a lot of law firms and I have think a bird’s eye view into how a lot of them function in my role as a outside general counsel to law firms. But it’s not just the law firms. And that’s one of the things we see in the study. It happens in the Courtroom, it happens at bar association events, it happens at opposing counsels in the deposition rooms over and over again. And frankly, we see that in disciplinary cases as well. Sometimes we see this bad behavior pop up where people are getting disciplined because it happened in a Courtroom or because it happened on the record somewhere. So law firms are a big part of it, but it’s not just law firms. I mean it’s really everywhere it

Erika Harold:

It is everywhere. And we wanted this study to be broad because we recognize that people will have certain ideas about where they think it occurs, but we wanted people to recognize that it is systemic throughout the profession, not just certain types of firms or certain environments or practices. It’s really systemic. And we have to then look at all the different facets of the profession in order to figure out where we can actually go to take action. So we talked about law schools. We think that courts need to have standing orders that specifically address incivility and bullying and harassment to set those expectations right upfront. And to be clear, and as you highlighted, when people had to identify who was the person who most recently bullied them, 14% were judges. And so it’s important that we look at that this is pervasive throughout the profession, which is why everyone has to have an incentive to take action.

Trisha Rich:

I had a case a couple of years ago in 2023 where my opposing counsel was just a huge bully. He was just the worst. And it was a really, really tough situation to deal with because he so often did it in front of the associates who were working on the case. And as a partner it was clear he was doing it because he’s a little unhinged, but also clear he was doing it because he believed it gave him a strategic advantage, which by the way, if you wear that on your sleeve, you’ve lost the strategic advantage that you thought you were trying to get. Exactly. When it becomes such a clear facade, you just look like a clown. And anyway, we were in a deposition one day and he just absolutely lost it, which again just shows I think a real lack of control. And he said to me, how dare you talk to me, and I have this in the transcript, which is kind of fun. How dare you talk to me. You’re an equity partner at a law firm and not some lowly associate and

And that was of all of his terrible behavior in the case. That was really the only deer in headlights moment I think I had, because my very first reaction was like, excuse me, sir, I am an equity partner at one of the largest firms in the world, but my associates were there. And the thing I didn’t want to discount in that moment was that he was just frankly just shitty on associates, which are the lifeblood of the law firms and legal professions. We all came up as associates. We were all associates once. And to say that an associate shouldn’t be able to talk to somebody of his renounced stature, whatever, I don’t know what his point is, but it’s hard in those moments. And there really is, I think a generation of lawyers who believes that they have a strategic advantage through acting that way. And I’ll end by saying, during the case, he repeatedly called me an idiot, and after we won, it was all I could do to, I’d be like, man, you lost to a real idiot, right? It’s one thing to think I’m an idiot. It’s another thing to lose to an idiot, right?

Mathew Kerbis:

When you have a bad case, you start insulting all you have.

Trisha Rich:

But the hardest thing for me to manage in that case was I felt like a lot of pressure that I had to win because I needed my associates to know that that was not a winning strategy. They saw it day in and day out for two years, and I needed them to understand this is not how we win cases. This is not what our legal profession should look like. And so I don’t know. It is certainly one of the toughest cases I’ve probably had in my career because of the way that he handled it.

Erika Harold:

I’m really glad you shared that because it kind of underscores the importance of mentoring, whether it’s formal mentoring or informal mentoring. You were cognizant that you were sort of informally mentoring all of those associates and you were teaching them what behavior is acceptable and what isn’t. And one of the things that the commission is working on, we facilitate a lawyer to lawyer mentoring program, and Chicago Bar Association is a sponsoring organization, and we’re updating our mentoring curricula to include specific and resources regarding bullying. First of all, we know that younger attorneys are the ones that are most targeted, and we want the mentors to be able to really be advocates and allies for them and to be able to talk through, what do you say if someone’s treating you in a specific way, how do you manage the pressures of wanting to report but fearing retaliation?

And what is the kind of behavior that is acceptable in a profession versus things that, as you said, strategic bullying, strategic incivility. The commission did a civility study in 2021, and we found that when people were asked about incivility that they were engaged in using it strategically was something that people do. And so again, it kind of underscores that this is intentional behavior. It’s not just behavior that where people lose control and feel governed by their emotions. The reality is sometimes people feel very much in control and bullying people and behaving in highly uncivil ways is their way of leveraging emotion.

Trisha Rich:

Yeah, absolutely. And I mean, setting aside professional athletes, because lawyers really are the professional athletes of the business world, right? I’ve heard many people say that. Yes, everybody says that. Setting aside professional athletes, there are a few professions where you show up every day and there’s somebody on the other side just as smart as you, just as skilled as you, just as competent as you are, trying to make sure your job gets done in a way that benefits them instead of you or their client instead of you or someone that’s actually legitimately just adversarial to you. So controlling for bullying and bad behavior in the profession, in a profession, it is by its nature adversarial. It’s like the difference between I’m not going to eat desserts at all, or I’m only going to eat desserts once in a while, right? It’s one thing to just be like, this isn’t going to be part of our life, but in a profession where it’s adversarial by nature, controlling how we treat each other I think is a lot harder because it’s a line drawing issue. The stakes are higher for us though, as you say, dessert’s pretty important

Erika Harold:

To buy dessert.

Mathew Kerbis:

My wife has a second stomach for dessert. She tells me,

Erika Harold:

I going to say we’re all very dessert here, but because our profession is in many ways inherently adversarial, we have a vested interest, maybe even more than other professions in addressing this because some of those behaviors are going to be normal components of how people interact. And we all have a stake in ensuring that the profession becomes more inclusive. Because one of the things our data showed was that people had mental health impact of being bullied, anxiety, depression, people had physical health impacts from being bullied. People also talked about feeling less productive. There was a great quote that, I won’t do it justice, but the person talked about it started to kind of erode their sense of confidence. And every day they would come in feeling a little bit less productive, a little bit less efficient, till all of a sudden they became a shell of who they were. And this person said, bullying is the great silencer.

Mathew Kerbis:

Wait, Erika, are you saying bullying is bad for business?

Erika Harold:

Bullying is bad For business.

Mathew Kerbis:

So if that’s any other reason, if I know anything that motivates private practice law firms, it’s profit. And so bullying is bad for business.

Erika Harold:

I’m very glad that you stated that as succinctly as you did because when you look at what is going to motivate people to make change, there’s a moral case for change. There’s an ethical case for change, but there’s also a strong business case for change. We found that of the lawyers who took the survey, 9% in one year, were sitting there thinking about changing jobs from their current employers. That’s just in one year. And then you show the data of nearly 20% during the course of their career have left a job. That kind of turnover has an actual impact on clients, on efficiency, on productivity. If you have then lawyers who haven’t left but are feeling bullied are actually less productive, less efficient, that also has an impact on your business case. Then for clients who have their expectations are that you’re going to have a diverse team to represent them.

Any firm that wants to be able to compete in the future, they have to be able to figure out how to not only retain people from diverse backgrounds, but also to promote them into leadership. And so if you notice that there are certain groups of people that are disproportionately targeted, those are the same individuals that clients want to see, are those people going to be part of the team representing me? So there’s a very strong business case for it. I would hope that the moral case and the ethical case, the humanity case for change would be sufficient. But if that’s not going to be the thing, that’s the tipping point. The business case is very strong.

Trisha Rich:

Yeah, I think that’s a really good point to make to lawyers. I mean, doesn’t it feel like when we first started practicing law, when we were talking about diversity in law firms, it was the same argument we were making then maybe you don’t care about diversity for diversity’s sake, but your clients do, right? And so I think a lot of these things can be business driven, client driven, and that is a language I think that all lawyers speak

Mathew Kerbis:

For the government lawyers, for the in-house lawyers, for the non-private practice attorneys, it’s still good for business in the business of what you do in that it helps with retention, right? It helps with other things. So it might not help your bottom line, but not bullying. Being good for business is good for business, whether it’s profit driven or business otherwise.

Erika Harold:

And it also is good for bolstering the public’s confidence in the rule of law. I will share with you an experience I had when I was still in private practice. I was representing a client, a black woman, and we were in front of a judge, and this judge was bullying me. The judge was cutting me off. It was almost comical if the stakes weren’t so high for my client. Erika,

Trisha Rich:

I think we should tell our listeners that you are a black woman for those.

Erika Harold:

Yes.

Trisha Rich:

Okay.

Erika Harold:

For those

Trisha Rich:

That don’t actually know you.

Erika Harold:

Yes, I am a black woman. And so just to set the stage for thank you for that, Trish.

And so we’re sitting there and the judge is bullying me and my client is watching this, and the judge actually apologized on the record because I think the judge was able to see towards the end how much he had treated me differently than my opponent. So as we’re preparing to leave the Courtroom, my client looked at me and she said, this was really kind of shocking to me because she said, I assumed that people were rude to me in the Courtroom just because I didn’t have status. She said, but I see that the judge was just as rude to you as he was to me, and now it makes me feel a little bit better because now I know it’s race, not status. And I thought what an indictment on our profession that my client’s takeaway from this case is that it’s not just lack of resources that’s going to make you be treated differently in a Courtroom. It’s also race, it’s also gender. And if we care about the public having confidence in the rule of law, in the justice system, any of the values that we promote, we have to understand what a pernicious effect bullying and targeting has on people’s belief that their cases are being adjudicated fairly.

Trisha Rich:

That’s a really, really powerful story. And our last couple of minutes before we conclude, what programming or other things should we expect to see related to the bullying report?

Erika Harold:

There are a lot of things that we are working on right now. Some of them we can’t disclose because they’re collaborations we’re working on with other people. We won’t keep anyone, so it’s a closely held secret. But the commission right now, we’ve already updated our mentoring curricula, and so we will be releasing that shortly. We’re working on some educational tools that will allow people to have practical ways of addressing some of these concepts that may seem conceptual. And so for bystanders, what do you do if you see this behavior occurring? What are actual things you can say that will make it better? What are things that you want to avoid saying to avoid making it worse? There are other states that have reached out to us to see if we can share information about how this study was conducted because they either would like to leverage the research or maybe do something like that on their own, which we highly support.

And we are collaborating with a lot of stakeholders within Illinois. Chicago Bar Association is one of our strong collaborators because we want people to take action in terms of policies. One of our recommendations is for legal organizations to have anti-bullying policies. Most policies right now that firms have or organizations have are harassment based. They are usually not going to encompass bullying behavior. And so we think it’s really important that legal organizations have policies that specifically address this, but there are a wide variety of things that we are working with and collaborating with people because we don’t want people just to read the report and say, that’s sad. We want people to read the report and say, let’s take action to improve our profession.

Trisha Rich:

Well, on that note, let’s roll into our second break.

Mathew Kerbis:

So Erika, thanks again so much for coming out and talking about the report with us and extrapolating on the report. And I really think doing the research and promoting the data is one thing, but actually getting lawyers to take action, like what we were just talking about in the profession to take action is a whole other step. And there are some recommendations in the report, which I want to learn about. Having gone to law school at DePaul here in Chicago, I was actually educated on mediation and collaborative law as part of my legal education and a movement away from this antagonistic profession that is historically taught. So I think a move towards that maybe is one way to do it. So legal education starting at the beginning, but tell us a little bit about what the commission is looking at and recommending that lawyers, legal professionals, legal institutions take to actually make a difference.

Erika Harold:

We want people to create policies that really define the behavior that’s inappropriate and create not only reporting mechanisms, but ways of preventing retaliation. Preventing retaliation was sort of the big thing that lawyers raised for us in the survey, and we think it’s really important that lawyers and law firms and legal organizations, when they have some sort of anti-bullying policy, that they take steps to follow up a week, two weeks, a couple of months after the behavior’s been reported to make sure that retaliation hasn’t occurred. And it’s not just asking the person you being retaliated against, it’s who’s giving you cases, what client pitches have you been included in? There are objective ways that we all know indicate whether someone’s flourishing in their career or being deprived of opportunities. We think that’s a really important thing. We think that courts ought to institute circuit wide standing orders regarding incivility and bullying.

There should be very specific training around these policies. We also think it’s important that people make reports to the A RDC when behavior crosses the line and violate some of the rules of professional conduct. theBar associations we think are very pivotal because they have the opportunity to help legal organizations, craft model policies, and they can also support service support networks for lawyers who are facing bullying and want real time help, but don’t necessarily feel comfortable talking within their firms. And we want everyone to begin taking some action. We’ve been very heartened by the number of people who’ve already reached out. I had a judge say, I’ve already worked on updating my standing order so I can specifically address this. We have some training components we do for judges. I have already presented to new judges on this report and how they can actually manage their courtrooms in a way and set expectations that will not just have an impact in the Courtroom, but ripple effect through the litigation process. So the great thing is we have several recommendations and everyone has an opportunity to do at least one thing.

Trisha Rich:

That is fantastic. Okay. We are running short on time, so Erika, any final thoughts or last things you’d like to say before we let you loose?

Erika Harold:

Grateful for this opportunity to be here with you and the commission’s. Very grateful that the Illinois Supreme Court supported us doing this research, supported us publishing this report. I think it’s groundbreaking in terms of transparency that the Illinois Supreme Court wanted this data to be shared with Illinois lawyers so that we could take action. And then the final thing I will say is I’m just so grateful for every Illinois lawyer who took the time to take the survey, to participate in a focus group and to share not only their experiences, but really their heart and soul about this issue. They put a great deal of trust in us, so we want the next phase of implementing recommendations to not let them down.

Trisha Rich:

Well, thank you so much and we are out of time. That is our show for today. I’ll start by thanking our guest, Erika Harold, for her time, this interesting conversation, her leadership and the Commission’s leadership and the Supreme Court’s leadership on this groundbreaking first of its kind study. I noticed Erika said one of the first ones I happen to notice, actually the first one, so I’ll give you more credit than you gave yourself. I also want to thank Matt for being here today, our executive producer, Jen Byrne, for the work she does behind the scenes that makes this whole machine work. Also, as always, a huge thank you to our friends, Adam and Ricardo on sound engineering, and to everyone in the Legal Talk network, family, our family, they’re truly the very best in the business of legal podcasting. Remember, you can follow us and send us comments, questions, episode ideas on Facebook, Instagram, Twitter, at cba, @theBar, all one word. You can also email us that information’s on our website. Please rate and review us, leave us your feedback. It always helps us get the word out. Until next time, for everyone here at the Chicago Bar Association, thank you all for joining us, our listeners. We’re so grateful for you, and we will see you soon @theBar.