Law Schools

Legal Industry Has No Clue What To Do About #MeToo

My big takeaway from NALP is that there are no good options.

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The best thing about the National Association of Law Placement (NALP) annual conference is that it gives you a very broad sense about where the legal industry is going. The law firm representatives there are thinking about what their needs will be, years down the line. The law school personnel are thinking about what their students are trained to do, and how they will need to be trained in the future. NALP can be a leading indicator, but it can also be a lagging indicator. The conference captures trends that have been in motion for some time, but that means that when “new” things happen, it can take this group of people a little bit of time to coalesce around the collective response.

This year was the year that #MeToo fully metastasized into the world of young lawyer recruitment. There were multiple panels addressing the issue of sexual harassment and inappropriate conduct in the workplace, directly. But even panels that didn’t have a #MeToo hashtag in the title were also kinda talking about #MeToo issues. Everybody was aware of the issue.

And, sadly, everybody seemed to be thinking about workarounds.

The most direct action to address #MeToo issues is to fire lecherous men who cause the problem. That’s not me, that’s Occam’s Razor talking. We can talk a lot about “best practices” and “training” and “promoting a culture of decency,” but if you’re not identifying and removing men who harass or assault the people they work with, then you aren’t doing much.

But my takeaway from NALP was that these men are not being identified, they’re not going to be removed. They’re going to be there, this summer and this fall, as they always have been. Maybe they’ll be more respectful, given the heightened sensitivity about these issues, but hoping that men who behave badly won’t behave so bad has to be the weakest possible “response” to #MeToo.

Since we’re not going to have industry wide accountability, recruiters and career services officers are in the unenviable position of trying to protect law students and young lawyers from bad actors who will, evidently, still be tolerated or given an opportunity to harass more subtly. Instead of thinking about how to fire the guy who “tests the waters” with the incoming first-year class, NALP was primarily focused on teaching law students how to identify colleagues who are testing the waters and, like, avoid them? Oh, that partner who tries to fix your nametag for you, that’s a “red flag,” maybe try to not work with him. Instead of identifying the guy who treats a summer associate event as a “target rich environment,” the professional development people talked about not serving drinks at summer associate events. Let’s not make it easy for sexual predators! I guess?

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There are, of course, best practices that summer associates and young associates should adopt to identify and avoid potential trash humans. And there are steps law firms can take to ensure that there are clear reporting lines for bad behavior. But, as I talked about with respect to judicial harassment, the burden shift here is all wrong. The onus shouldn’t be on the youngest and most powerless lawyers to “protect themselves” from old, handsy assholes. It should be on the law firms to identify such people, and drum them out of the building. Failing that, it should be on the law schools to identify which firms still encourage a “culture of harassment” and warn law students to stay away from such firms.

To be clear, there was deep concern among many of the people I spoke with at NALP, about the effects sexual harassment and even just sexual annoyance has on the careers of their students and recruits. I don’t think I spoke with anybody who thinks this state of affairs is just fine. You can go to a lot of conferences and talk to a lot of legal industry “experts” who fall over themselves about “due process” and worry constantly that “just any [woman] can accuse a man of sexual harassment… and then what?” “Misunderstanding” as “sexual harassment” is a fear that preoccupies lots of men, frankly, who think about law firm culture.

People who regularly work with young lawyers and law students have different concerns. They see the devastating effects on associate retention that can be traced to “boys will be boys” culture. They hear the stories of students who had “bad experiences” at one firm, but don’t have a great lead on another job. Especially in a market where split-summers are increasingly frowned upon, and 3L recruitment remains incredibly challenging, they hear from students who feel “trapped” at the firm they summered with, even if they’ve been mistreated or just simply creeped-out by some of the people they interacted with over the summer.

But all these professionals can offer is moral support and a human resources contact person. They’re not empowered to take information and act upon it in the only way that actually makes sense: firing offenders. Unless the conduct is truly egregious, unless we are talking about a pattern of assault, instead of a merely inappropriate “vibe,” the creepers are going to keep their jobs and their careers. The problems are going to be there and be problems, so like as their problematic behavior stays just below the level of criminal conduct.

It’s a disheartening and pathetic response. But until managing partners take inappropriate behavior as seriously as profits per partner, it’s the only response available. NALP this year felt like a bunch of people inspecting the lifeboats, all with urgency that comes from knowing that the captain is drunk.

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Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.

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