It’s a year since the start of the #MeToo movement and perhaps more than any other profession, various big name law firms have found themselves tested by the challenges of this new era.
No longer are complaints of sexual harassment or misconduct an HR issue. A firm’s response now has to be considered through a more complicated prism of reputational risk – to ensure fairness to the victim and the accused; the right legal and ostensibly moral path. Management’s reaction is open to considerable public scrutiny whilst often the individuals concerned prefer a private and confidential process.
It’s clear the old ways of dealing with issues of harassment and misconduct have lost their viability. Yet there is no single route map to follow. Instead the following considerations are now deemed key to developing a credit worthy response:
• Should firms conduct an internal investigation or appoint independent external investigators?
• Should NDAs and settlement agreements be used and if so, their use acknowledged?
• What level of information should be disclosed surrounding departures – did that person’s behaviour ‘fall short of company values’ or was it abusive or worse?
• Is it realistic to think “inappropriate behaviour” will hold as a public line or will rumours of the real reasons for a departure cause greater reputational harm than transparancy?
• Should firms be proactive about changes to policies and procedures on alcohol, zero-tolerance, inter-office relationships which may cause a greater hostage to fortune?
• Will leadership – managing partners, HR Directors and even Comms heads – find their decisions as heavily judged as those of the original perpetrator? (after all it’s often how an untowards event is handled that is critical to long term reputation, rather than the event itself.)
• Will firms who may find themselves serially in the spotlight and which fail to embed culture change, be boycotted by future talent and clients alike?
Wise counsel spanning various disciplines is required to help law firms steer the way through in these tricky times. Lawyers (criminal, employment, regulatory), HR experts, and reputation advisers need to work constructively together. (And partners accused should be probably be assembling their own team with similar expertise too).
From a communications point of view, the earlier reputation advisors are at the table the better; a full briefing of all the facts is essential; preparation both for a final outcome as well as leaks along the way is key; consideration for what can be said when the police or regulators may get involved must be factored in too; thinking about all potential audiences is important.
So far, the court of public opinion is favouring those firms willing to take a brave and robust response to problems. As much transparency as possible is critical to this trust. But the minute there is an inkling that an organisation has gone through the motions without making difficult decisions, or in extremis that we begin to see exaggerated claims and try-on situations and senior individuals fighting back, the reputational waters may prove even choppier to navigate.
It will also be interesting to see if degrees of behaviour start to be judged differently. Will bullies or serial sexual innuendo pests come to be viewed differently to those accused of full-on sexual assault? Where criminal sentences are levied, there is surely no way back but if no criminal case is ever brought or won might it be possible for the accused to win back their reputation for legal prowess? A mea cupla I’ve changed interview might be a bold stroke but achievable for the right individual.
Although the criminal case against Harvey Weinstein may be crumbling it is doubtful his reputation can ever be salvaged. What is certain is the forces he has unleashed and the shockwaves of #MeToo are rocking the legal community and causing serious and ongoing reputational risk.
19th October 2018