I know, this pic is a little old. But I still think it’s funny!
Anyway, here’s a somewhat belated Open Thread for Non-Personal Stuff. As always, Open Threads are CLOSED to MRAs/trolls, etc.
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Open Thread for non-personal stuff, Sept. 2015 Amazing Cat Box Edition
@ POM
Well, I certainly wouldn’t *name* you as a Nickleback fan.
Solicitors gossip all the time, it is a different culture at the Bar. Until very recently we weren’t even allowed to comment on cases we’d been involved in. You’d get disbarred for doing so.
I appreciate this culture may seem weird, and even undesirable; but the one major difference between the Bar and the solicitors profession is that the Bar operates on trust.
To give you an example, if two solicitors are talking, unless they explicitly say that the discussion is “without prejudice”; then either party can use any information gleaned in any way they choose. There’s a convention at the Bar that ‘counsel to counsel’ conversations are completely confidential. There’s no rule to that effect, but if anyone ever breached it they’d be an outcast.
Now, our obsession with confidentiality, especially in peripheral matters, may seem daft to outsiders; but it’s that ‘halo’ effect (i.e. we keep scthum about *everything*) that gives people the ability to trust us in professional matters.
You may have noted that Barristers wear clerical dress; that reflects that you are meant to be able to say anything to us, *in whatever capacity*, and we’ll guard that confidence in the same way a priest would.
If he’d made the comments on a public forum then she would be perfectly entitled to respond in public, but the fact this was a private communication, no matter how unsavoury the contents, means the rules apply. As I mentioned before, she accepts those are the rules, she just felt she should break them in this case. Her breach of the rules may have been a worthy thing in this instant, but if we accept she was entitled to breach those rules we have to accept that any barrister can breach the rules when they feel it is appropriate. Most barristers think that that’s an undesirable situation. So whilst people are sympathetic to her being messaged by creeps, they’re less enamoured with the way she dealt with the situation; especially as there was a route available (which she also took).
I understand views may differ on this though.
This seems to be more or less a perfect system for harassers. I mean that literally: I’ve sat here for a little while and tried to come up with a better means of enabling harassment, and I can’t come up with one.
If someone is harassing you, then you need to either a) keep quiet about it, or b) lose your ability to practise your profession, which is a profession that someone spent a lot of time and money getting into.
Surely this conversation can’t have been the first time this has come up? Lawyers are well-educated people who, judging from the ones I know, love to argue. There must be movements which exist for reform.
I’m going to have to bang that hammer again: this is only relevant when you’re talking about cases.
It is completely justifiable to have a rule about how you can’t talk about cases. HIPAA is a thing in the United States; it says that health care providers and ancillary actors (mainly insurance companies and third-party claims filing firms) cannot discuss your health with literally anyone without your permission, and must take precautions that your health information does not fall into unauthorized hands. That’s a justifiable rule. Attorney-client privilege is a justifiable rule.
What I need you to do is stop trying to explain how super-super-super important it is in your culture to extend this justifiable rule into literally every aspect of your life – because I totally understand that it is and I really do get that it is – and start questioning why it is that your culture places this intense value on something so ludicrous. Why exactly would it be a breach of etiquette for you to tell your colleagues that I, Policy of Madness from the United States, specifically me, am a Nickelback fan?
This kind of adherence to secrecy and privacy is safe for men. It is not safe for women. It’s not designed to protect abuse, but it’s certainly easy to adapt it for that purpose and abusers are perfectly willing to do that and operate freely under its cover. Abuse is leveled from a position of power, and oh! how convenient! the powerful get to make this rule that you absolutely are not allowed to talk about abuse under any circumstances! Isn’t it neat how that works out! I’m sure it’s totally a coincidence!
Sometimes men are the targets of institutionalized abuse. These men are either low-status, or made to be low-status, so that the powerful can continue to make rules that make it seem as though all of this is being covered up through impersonal forces of nature and not by conscious choices. It’s a conscious choice to make it a cultural rule that we don’t talk about Fight Club, or if we do we at least anonymize the personalities so that nobody can tell from the story who was the skeevy creep.
I don’t need more assurance that this really is totally the way it is, because I know that it is. What I don’t believe is that it must be this way, that this is some kind of inevitable Barbara-syllogism-style conclusion, given the premise that lawyers need to keep their clients’ information in confidence.
@ EJ(TOO)
It certainly isn’t. The Bar recognised that women face all sorts of problems in practice. There have been a number of reports into the issues. See here for instance:
http://www.legalfutures.co.uk/wp-content/uploads/Bar-report.pdf
The Bar does take this seriously; it’s a pretty progressive profession after all.
There’s no need to ‘keep quiet’. There are mechanisms in place to report such harassment and both the Bar and the Solicitors Regulation Authority take the matter seriously (the previous head of the SRA brought a discrimination claim against the Law Society on her own behalf, so she was well aware of the problems women face).
The woman concerned can, and indeed did, report the matter to the SRA. They will investigate and the solicitor in question faces serious sanctions. Disciplinary cases like this are in the public domain and if he’s sanctioned all dealings will be published.
It’s not so much that she made the complaint that the profession finds worrying, it’s the way she did it. As I’ve outlined above, confidentiality is a major thing at the Bar. It’s not that the profession is trying to sweep things under the carpet. As outlined, reporting the matter as she did will probably put the matter in the public domain anyway. It’s just that she chose to short circuit that. I can see why people think it’s fine she did that in this case; but what about other cases?
When you come to the Bar you accept that you’ll abide by the rules. Like many rules they accept that some injustices are the price that is paid for the benefit of the system overall. We currently allow the creeps and the bad people the benefit of the rules on the grounds that the rules should apply to all. That’s not always been the case of course (consider the old status of ‘outlaw’) and many people argue that rights and rules shouldn’t apply where there’s a public interest in them being over-ridden; hence Guantanamo etc.
@ POM
It’s the ‘halo’ effect as I explained. By keeping confidences about the inconsequential things, we can be trusted to keep confidences about the important ones.
Like I say, it’s not a case where she had *no* recourse. There was a route for reporting this. She’s followed that route and there may well be sanctions.
The Bar and SRA do take such things very seriously. The man involved faces disciplinary action.
If there was no recourse and this had been the only way to deal with this then of course the situation would have been different.
I didn’t want to step in before somebody else did, because you’re awesome and I don’t know anything about lawerin’ stuff, but like PoM said, this doesn’t actually have anything to do with lawyerin’ stuff. He catcalled her. Allowing him to get away with it because of who he is, because protection is more important than being protected and because that’s just the way things are – that’s how everything from the Catholic Church rape scandal to the Thin Blue Line and its love of murdering unarmed black men to the entirety of rape culture was allowed to happen and flourish. Don’t let it happen in Lawyer Land too.
*Because protecting is more important than. *turns off autocorrect*
HIPAA works pretty well in the US. It’s not a cultural thing; it has the force of law. It has enacted cultural changes, though. You won’t hear two doctors chatting in a corridor about a mutual patient anymore, where just anybody can hear it. I was under HIPAA rules for a number of years, and we absolutely did not talk about people covered under HIPAA in the break room.
That doesn’t mean we didn’t talk about other people. And the fact that we did talk about other people doesn’t mean we couldn’t be trusted not to blab about Mrs. Whatever’s pancreatic cancer all over the place. That’s not actually how trust works. This rule you have is a conscious choice made by someone, not an inevitable conclusion that flows inexorably from the premises.
Right, right, right. The problem is that she wasn’t following the correct course of action, the one prescribed for her by those in power, which would have made this something that nobody outside of your profession would ever hear about. The only reason people heard about this was because she went the Twitter route. What kind of sanctions would he have actually faced? We’ll never know now. You don’t happen to have record of any similar cases at hand, do you?
Seriously though, hyper-confidentiality (when not relevant to the job, which again, this isn’t) has never, ever, ever ended well for anybody who’s not a cishet white adult male. I could list examples all year.
*Adult man. Can’t even blame that one on autocorrect, I had some more words in there afterwards but edited them out for brevity. Oh well.
@ SFHC
Oh yeah, and if you can be bothered ploughing through that report you’ll see that this is a far from uncommon situation (in fact, compared to some of the instances it’s positively mild)
The irony is had she just gone down the mandated reporting route he would have faced disciplinary proceedings, been sanctioned and publicly shamed. Now of course, he’s getting all the sympathy [“Can’t even give a woman a compliment now” etc].
Of course, without all this publicity, he probably would have slipped under the public radar even if he suffered professional consequences. How many people read the reports of SRA disciplinary proceedings?
I can understand why she wanted to publicly call him out on this and our obsession with confidentiality may seem weird to outsiders. I hope I’ve got across some of the reasons for that though and why it’s so ingrained [That’s not just a gender thing either; she’s not getting a lot of support from other women at the Bar for the way she dealt even if they sympathise with her on the substantive issue].
It’s probably also worth bearing in mind that she’s more of an ‘academic’ rather than a ‘practitioner’ [That’s a big difference at the Bar; again, hard to explain to regular people] and she’s pretty new to the job so she may not have understood how sacrosanct the practitioner bar holds these things.
Anyway, if this stops some people who would otherwise have used LinkedIn like a dating website then some good has come from this.
Let’s put it this way: this guy felt safe enough and comfortable enough to make a comment that he knew going in was inappropriate (he frickin’ disclaimed it first). Why might that be? HMMMMMMMMMMMMM I CAN’T POSSIBLY THINK OF A REASON.
And, I’ll just put this out there, because I can’t think of another way to put it, but drilling it into the heads of aspiring young lawyers that they absolutely must be tight-lipped about every little thing (even crude come-ons or my supposed Nickelback fandom) or else nobody will trust them with the big things, brings a word to mind.
That word is “grooming.”
LO fucking L.
Women are always, always told this and it’s never, ever true. Ask any woman, in any situation, from any walk of life who’s ever been harassed or raped or abused and she’ll have a story of the system screwing her over.
HR, professional associations, university disciplinary boards etc. are all set up to protect the interest of the business/institution. Not victims.
Law enforcement is set up to protect the interests of the state. By the state I mean the wealthy and powerful. Not the poor. Not the powerless. Not victims.
If anyone needs to hear that from a man who’s a famous lawyer. Here it is.
http://www.bopsecrets.org/CF/darrow.htm
There’s a reason marginalized people don’t trust the system.
@ POM
You did get me thinking about the demographics of who makes the professional rules. I don’t know about solicitors (not completely au fait with how they operate) but I’ve been trying to check out the Bar.
The rules are set by the Bar Council. That’s made up of people who stand for election. Couldn’t find a breakdown but here’s a list of members:
http://www.barcouncil.org.uk/about-us/constitution-and-structure/bar-council/
As to the Bar make-up generally:
https://www.barstandardsboard.org.uk/media-centre/research-and-statistics/statistics/called-to-the-bar-statistics/
Someone who’d good at counting may be able to work out the figures.
I take your points on board. As I mentioned in my reply to SHFC it’s no doubt true that few people are aware of the results of disciplinary proceedings. They are in the public domain but they don’t seem to be seen as newsworthy. The local papers probably carry “Local Solicitor Struck Off” stories, but unless it’s a particularly ‘juicy’ case they don’t make the nationals.
As to confidentiality, I take your point again. But as a profession the Bar has freely chosen a particular ethos. Solicitors have a different one that they have chosen. You’ve chosen your own ethos too.
The Bar is pretty much self regulating. I haven’t done the breakdown of the figures to see if there’s any sort of gender imbalance that might make that problematic.
Ahhh, but you see. This is not a rule that came about last week. Or last month. Or last year. How long have you been in practice? How long have you just taken this “halo” rule for granted? How was it taught to you?
I would bet your answers amount to “many years” and “as received wisdom from people who learned it from their predecessors.”
That argument pretty much ends with “and this is why it will never change, ever, because if you try to change it you’re either an outsider or pooh-poohed about how you accepted this going in.”
We’re not talking about a company here. Lawyers and would-bes can’t just say “Screw this shit, I want a different ethos” and go start their own competing bar.
This is an argument from ossification, frankly. C’mon, Alan, you’re smart! I named a dwarf after you during my brief foray into WF! I don’t have to tell you these things!
@ WWTH
I agree with you that there’s a bias towards power in legislating. That’s a consequence of things like lobbying and the practice of politicians retiring to nice directorships. I do disagree with you that lawyers are necessarily on the side of the powerful though. A lot of the time it’s lawyers who help the marginalised when they’re abused by power. Clarence Darrow is one obvious example but there are many others.
@ POM
Aww, thank you! [even though I have no idea what WF is]
It’s true that I’ve been knocking around in the law for a while. It’s also true that women (and other minorities) have had to put up with a lot of crap over the years (read that report; it’ll make your head explode).
I do think there are some moves to address this though. We do pat ourselves on the back a bit that the Bar was the first of the professions to welcome* women [*for a certain value of ‘welcome’], but of course women faced all the problems that were endemic at the time in society generally [just look at the 70s sitcom staple of male bosses chasing their secretaries round the desk].
There have been a lot of moves to address these problems recently though. We now attract a majority of women to the Bar, and other minorities are well represented. Of course that’s no solution if they still get treated badly. There’s always been a progressive element at the Bar though (Don’t forget we wrote the US Declaration of Independence) and the radical bar is well represented in the decision making bodies. Such people are actually more likely to take an interest. Corporate lawyers don’t like giving up the time (I did a brief foray into corporate law and the Bar Council actually asked me to stand as they couldn’t get anybody from that side of the Bar to take an interest; they pointed out that I’d be elected unopposed as no one else was bothered).
So it’s not like new entrants are told to not rock the boat and put up with harassment these days (that was the situation not that long ago I’ll grant you, solicitors provide the work so they had to be tolerated whatever). Procedures have now been put in place and there is mandatory monitoring to make sure senior people are taking their responsibilities seriously.
It is true that sanctions are generally not reported in the press, but that’s a different issue. We so try to ‘out’ people whose behaviour is unacceptable pour l’encourage les autres, but it’s true that only people in the profession probably get to hear about it. Mind you, they are the people who need to get the message.
That’s because that was supposed to be DF (Dwarf Fortress).
Aww, thank you! That was so nice and forward-thinking of you, to do that for us poor uneducated frontier hicks!
Again, I’m definitely interested in the outcome of any recent (last 2-3 years) similar cases that were reported the more conventional way.
I looked at the report, and almost the first thing, after the bizarrely pink (gendered?) title page, is a full-page shot of a very self-satisifed-looking white man.
Not the most auspicious beginning, I hope we can agree?
Oh, and …
Is that really true? Is that really how we effect cultural changes? By keeping them quietly within the family, so to speak?
Literally nobody else on LinkedIn needs the message that it’s not okay to react to a woman’s profile by commenting solely on her looks?
@ POM
You’re welcome. We’ve got an original of the Declaration in my Inn library. Quite a few of the signers were members of Middle Temple.
We didn’t do the Constitution though. You’d already stolen that from Native Americans 😉 [Seriously, you did!]
Well, you can’t say we don’t do irony.
Again, I’m definitely interested in the outcome of any recent (last 2-3 years) similar cases that were reported the more conventional way.
I have tried to find some for you. Must confess, most of the recent cases are financial irregularities. Perhaps no surprise there. Here’s the raw data:
Again, I’m definitely interested in the outcome of any recent (last 2-3 years) similar cases that were reported the more conventional way.
As for that report, this is semi related but raises something I’d mentioned before about jury perception in rape cases. A couple of my friends specialise in this sort of work and they get the work because they’re very attractive women. They actually chose this work though. My old chambers was pretty friendly; it’s the one in the Rumpole stories.
k, I’m on page 7, the first page after the forward and ostensibly into the not-just-one-guy’s-opinion section, and already I have a problem.
Do you see the problem I’m having?
Oops
My innate XY genetic savvy at tech stuff appears to have had a wobble there.
Try again:
http://www.sra.org.uk/consumers/solicitor-check/recent-decisions/recent-decisions.page
I’m an American political scientist. Believe me when I say I know the history behind our founding documents. 😉
@ POM
Er, no; but I am quite thick. [I’m the reason for the t-shirt and the surge in rock sales]