Q: I am a male senior associate and I am having trouble with a female senior associate from another firm that I am on a case with (same client, handling different aspects of the case). She flirts endlessly, calls late at night to see if I’m in the office and suggests “drinks to talk over the case,” wants to have lunch or dinner following a conference, and so on.
I am not interested, but I’m worried that it will be awkward to work on this case together if I do a real blow-off. She’s also basically a nice person and I don’t want to hurt her feelings. By the way, I have to say I’m much more sympathetic now to women who get pursued by men who can’t take a hint.
A: You’re right that this is awkward, and it’s great that you’re sensitive enough to want to deal with the situation so that she isn’t too badly hurt. I can pass on advice that legions of women have accumulated from time immemorial.
This is tempered, however, with advice that you must do the best thing for the client. That obviously doesn’t require dating someone you don’t want to, or being flirtatious, but it does require a heightened awareness that your actions don’t exist in a vacuum.
Several approaches are possible. First is the totally honest but sympathetic approach. You can have a conversation in which you simply say to her what’s going on � that you sense she’s interested, that you don’t think it’s a relationship that would work, and that you don’t want to hurt her feelings because you like her and want to keep working together amicably � sort of “let’s be friends” plus.
It’s hard to do, but the best interests of the client would weigh in favor of this approach. You can even include that in your approach: “I’m concerned that the client might be affected, and I want this to be very professional.” This doesn’t happen very often because it requires the most courage.
Then there’s a more indirect approach. Establish a buddy relationship by frequent references to working “as a team” and saying you think of her as a sister. Throw in references about going to the movies with someone and ask her who she’s going out with.
Finally there’s the classic “big chill” where you duck her calls and avoid her. People do get hints over time. This is the most frequent approach that people take. It may be complicated in your case because you have to take her calls and can’t really avoid her, which argues for the first approach.
As a result of this experience, take advantage of your new-found sympathy for women and try to be an agent of change in your workplace. If a woman complains about being annoyed or harassed by a client or co-counsel, believe it.
This kind of thing happens on a daily basis for many women, and having to navigate around these folks along with performing difficult legal work compounds the daily headache. Many times people think, “Well, you should give the clients a little more room” and leave it up to the person involved to struggle with finessing the situation. But it’s important to make sure that people caught in this situation do not feel marginalized.
WHEN CLIENTS HARASS
Q: I am a partner who is aware of a situation in another department where a younger female associate is being somewhat harassed by a client. (Inappropriate remarks, like saying she’s wearing a nice dress, asking her about her social life, sitting uncomfortably close to her, closing the door when it’s not necessary.)
I found this out because an associate in my department mentioned it to me in passing, then swore me to secrecy after she saw that I was concerned, saying that the other woman doesn’t want anyone to know because she’s afraid no one will believe her and the client will get angry and we’ll lose the business.
I’m in a quandary because I obviously don’t want this woman to be putting up with this behavior, but again, I’m not really supposed to know this, and if I reported it to the partner in charge of the particular case, what if something happened to the associate and her career? I’d feel very guilty if she suffered unfairly in the aftermath. Also, the behavior involved is irritating but not egregious in nature. What should I do?
A: There are a number of things you can do in this situation. But doing nothing is not one of them. You are in a position of responsibility due to your partner status and therefore have obligations beyond those of a bystander or friend who happens to know confidential information.
This is not to say that your concerns all around aren’t valid. Clients do 18 percent of harassing in firms, according to Dr. Fraeda Klein of Klein Associates in San Francisco, who consults with professional service firms on issues of bias and diversity. And firms that are severe with people within the firm on harassment issues often turn a blind eye to client misbehavior, reasoning that they should give the client more leeway because they don’t want to lose the business or alienate the client. Therefore those who raise complaints are sometimes quietly marginalized.
It is important to be aware of the two dimensions that exist in this situation. One is the legal/organizational dimension, dictated by law. The other is more informal, responding to your legitimate concerns about protecting the associate’s career (and your probable concern about breaching a confidence).
On the legal/organizational side, it’s quite clear that you have a duty to do something about it. You are a “supervisor” under the law, according to employment lawyer Lynne Anderson of Newark’s Sills Cummis Radin Tischman Epstein & Gross. Therefore, you must address the situation even where someone complains but asks the employer not to do anything. If you don’t, Anderson points out, you expose the firm to liability for failing to prevent and correct harassment.
Anderson advises that the firm proceed in a confidential manner, with designated, trained firm members responsible for responding to internal complaints. The associate has to be assured that there won’t be any retaliation, and the investigation has to be discreet.
“For example,” Anderson says, “having the associate called into a conference room to be questioned by the chair of the department, or the head of the management committee, will not necessarily serve the goal of having a policy that encourages employees to report harassment or inappropriate behavior before it becomes severe or pervasive. The investigation should be done on a confidential ‘need to know’ basis, and should not be openly discussed with other members of the firm.”
You and others can work with the partner in charge in devising solutions if there indeed is a problem, but Anderson warns that the solution shouldn’t jeopardize her career. If she’s removed from the case, for instance, make sure she’s put on another case of equal standing so it doesn’t look like she’s been demoted.
So much for the official, legal dimension. You can handle the informal issues in a variety of ways. For instance, you can quietly tell the associate-informant of your legal duties to report a problem, emphasizing that you want very much to preserve your relationship with her but that you have broader duties. Tell her that any investigation will be conducted discreetly and that she shouldn’t talk about it either, to prevent the gossip machine from going out of control.
Don’t be tempted to shift responsibility to yourself by approaching the partner in charge, saying that you personally have observed or become aware of the questionable behavior, and suggesting that there be vigilance and follow-up. If you do that, you will be part of the formal investigation and it will get pretty awkward to keep up what is a falsehood. (Also, if in the off-chance the information related is false, you could be repeating completely unwarranted and inaccurate information that causes other people tremendous grief.)
Another approach, though, is to say to the partner in charge, “We need to look into this situation, which I believe involves Jane. I’m reluctant to tell you how I know that. If I need to I will but for now I’d rather not, not only to preserve my relationships but also to encourage people to come forward about these things rather than keeping it to themselves.”
The author, a former litigator, is principal consultant with Values At Work in Montclair. Her article, “Managing Culture Shock” in Law Practice Management magazine, published by the American Bar Association, won the 2001 Edge Award for Best Article of the Year. Her advice column appears regularly in the Law Journal.
