The Globe and Mail by Elaine Craig and Jocelyn Downie 23 December 2019
The legal profession must change the way it responds to sexual misconduct within its own ranks. The culture of the profession – with its social power, history of elitism and male dominance – makes it harder for women to speak out and easier for men to stay silent.
Take the example of Gerald Regan, perhaps the Nova Scotia legal profession’s most infamous sexual predator. More than three dozen women – babysitters, family friends, dates, secretaries, a journalist and a legislative page – came forward alleging that the former premier violated their sexual integrity over the course of 40 years. These women reported detailed, and often similar, experiences of sexual harassment and sexual assault. Did a single lawyer report the open secret of Mr. Regan’s alleged sexual misconduct to the law society over the course of his six decades as a lawyer? Did the law society ever investigate? We know of no record of reports or investigations.
Instead, in 2006, Mr. Regan was celebrated. The province’s law society awarded him a “special gold pin” and a certificate for having been a member of the Nova Scotia bar for 50 years. It feted him again at a reception in 2015. Why wasn’t he disbarred, instead of celebrated? Some argue that Mr. Regan was acquitted of eight charges of rape and other sexual offences, but the evidence from dozens of other women was not before the jury and charges involving numerous other women were, according to the Supreme Court of Canada, wrongly stayed. The profession had a duty to respond through its own processes to Mr. Regan’s sexual misconduct.
Two days after Mr. Regan died, Nov. 26, 2019, media reported that Eric Durnford, another long-standing member of the legal profession in Nova Scotia, was given a “consensual reprimand” for numerous acts of sexual harassment and sexual discrimination toward multiple women between 2010 and 2018. Three female lawyers and one legal assistant left their jobs, in part because of his misconduct.
Apparently Mr. Durnford’s sexual misconduct in the workplace was a known phenomenon at his law firms. He was warned or “internally disciplined” on five separate occasions between 2011 and 2017 because of the pornography in his office or his “inappropriateness and unprofessionalism” toward women. He began receiving counselling “to obtain insight regarding proper boundaries in his interactions with women” in 2015. Yet, the misconduct continued.
Lawyers were aware of Mr. Durnford’s sexually harassing and discriminatory behaviour for years. Why was he permitted to continue like this until retirement age?
That both of these men retained the honorific “Queen’s Counsel” designation that follows their names – even after the revelation of their sexual misconduct – also illustrates a cultural failing in the legal profession.
A professional culture that tolerates, even celebrates, men who engage in harmful sexual behaviour makes it almost impossible for women to speak out about their experiences. Law societies need to be part of the solution, not part of the problem.
Law societies permit, but do not require, their members to report known sexual misconduct by other lawyers. The Codes of Conduct for lawyers state that “A lawyer must not sexually harass any person” and notes that “A lawyer has a special responsibility to respect the requirements of human rights laws in Canada.” This approach is not enough.
Law societies need to change their rules to require lawyers to report other lawyers whom they have reasonable grounds to believe have engaged in sexual harassment or sexual assault. Lawyers who are the victims of another lawyer’s sexual misconduct should not be required to report. Third-party reporting should anonymize the name of the victim, unless they request otherwise. Lawyers can’t report privileged information. But, otherwise, lawyers should be required to notify their law society of improper sexual behaviour rather than merely ignoring it, dealing with it internally or passing the problem forward to other firms by enabling lawyers to transfer. Law societies should discipline, not celebrate, those who engage in this misconduct.
A mandatory-reporting rule for professionals is not unprecedented. In Alberta, doctors must report unprofessional conduct. In Nova Scotia, doctors must report unethical behaviour. Lawyers across Canada are already required to report other types of unethical and unprofessional behaviour. Sexual harassment and sexual assault should be added to this list.
Journalists, performing artists, chefs and others have turned to the legal profession for help, to push for a just response to their #MeToo and #TimesUp moments. When will the legal profession respond appropriately to sexual misconduct within its own ranks?
Elaine Craig is an associate professor at the Schulich School of Law at Dalhousie. Jocelyn Downie is the school’s James S. Palmer Chair in Public Policy and Law.