This is a paper I presented at the Employment Law Seminar, Law Society of New South Wales on: Professional Ethics and Responsibilities Of Lawyers Who Bully (Including Judges)

 

On New Years Day 2014 in Australia new laws governing workplaces came into force dealing with bullying. These new laws which amended the Fair Work Act  are within the jurisdiction of the Fair Work Commission(Commission) and will be of importance in advising clients how to manage these changes and how to represent them in the Commission.

 

About 15 years ago a few Sydney barristers were startled to discover  that taxation laws not only applied to them but also not to comply with the obligations required by the  revenue authorities  might imperil their professional standing and right to practice. In the same way these new “anti-bullying” laws either directly or by analogy dictate how we behave as employers of our staff and how as lawyers we deal with each other ,clients, witnesses and others with whom we have contact “at work”.The passing of these laws perhaps gives us all a chance to pause and consider how members of our profession, including judges behave at work.

Last year the newly re-installed Prime Minister, Kevin Rudd, in the dying days of the  43^rd Australian Parliament made this statement to the Parliament :

“Political life is a very hard life, a very hard life indeed. … Let us all remember particularly on days like this that in this Parliament, and in this place, we are all human beings, we all have families and we all have emotions, so let us try – just try – to be a little kinder and gentler with each other in the further deliberations of this Parliament.”[1]

 

Rudd’s comments seeking a kinder and a gentler place echoed the remarks made in a couple of valedictory speeches made by retiring members of that Parliament.

 

The National Party member for the Queensland seat of Hinkler, Paul Neville, in a generous speech traversing a distinguished career, praised both his political allies and his foes.  However, he made this comment:

“As I leave this Parliament, I pray that in subsequent Parliaments we see a return to civility in this place.  Surely it is not beyond our capacity to make Question Time what it should be – an enlisting of information rather than the forum for meaningless spin and invective. Like it or not it is a vehicle by which the public judge us because that is the forum of Parliament that we often see.  Surely we can do as great a job as New Zealand, Canada, UK and France.  Despite the expectation of the new paradigm, it gets progressively worse with each Parliament.”[2]

 

Alex Somlyay, another Queenslander equally made a plea to Parliamentarians to respect each other more than what had been his recent experience.[3]

 

Perhaps the departing parliamentarians who  stressed this  focus upon treating each other better  may have had in mind the passing of this legislation.

 

The amendments to the Act adopts a definition of workplace bullying of someone being   bullied at work if an individual or group of individuals repeatedly behaves unreasonably ,and the behaviour creates a risk to health and safety.The changes explicitly excludes from the definition of workplace bullying “reasonable management action carried out in a reasonable manner”, a provision which aims to recognise the need for managers to be able to give instructions to their workers. Disciplinary action or action taken in response to poor performance is not sought to be regulated under the Amendment Act, which recognises the rights and obligations of managers to give reasonable direction or feedback to workers.

 

The powers of the Commission in dealing with the applications is not to make pecuniary awards but to make orders which stop the offending behaviour and put in place mechanisms to avoid such actions happening again.

 

Types of orders the Commission may make include, for example:

• the individual or group of individuals stop the specified behaviour;

• regular monitoring of behaviours by an employer;

• compliance with a workplace bullying policy;

• the provision of information and additional support and training; or

• review of existing workplace bullying policies.

 

Should the Commission make an order that workplace bullying cease, and that order is contravened, a person affected by the contravention, a health and safety inspector or an industrial association may seek a remedy in court. Civil remedy provisions enlivened by a breach of an orderwill attract maximum monetary penalties of $10,200 for individuals and $51,000 for companies.

 

One of the chief hazards facing lawyers  is to suffer a work-related psychological injury. Accordingly these new laws deal with the behaviours which give rise to such a risk and how to curb it. If some retiring politicians have spoken about the loss of civility in public life we as lawyers should take note . We should recognise that community expectations have changed and that aspects of the way some lawyers have behaved   in and out of the court room need to be adjusted.On account of this change of expectations the behaviour of lawyers will I predict be a new area of professional disciplinary concern as it already has for some members of the judiciary.

 

It is some years ago now that I wrote an article about bullying in the courtroom for the NSW Law Society Journal (December 2004) entitled “Of Dinosaurs and Bullying Judges”. The article received close attention by both the print and electronic media. I received many letters and phone calls from practitioners about the piece. A few days after its publication, a former head of my chambers, who had become a judge in the Supreme Court passed me on Phillip Street  and said “Good morning Jeffrey, I read your article, we all did”. Ominously, he then said “We are waiting for you”.

 

The subject of bullying in the workplace has been the subject of much comment and litigation over the past twenty years or so. Depending upon a victim’s pre-disposition or fragility bullying behaviour can be the cause of psychological injury. The legal test as to whether an event can cause psychological injury is undemanding. In State Transit Authority of NSW v Chemler [2007] NSWCA 249 Spigelman CJ said that employers take their employees as they find them. There’s an ‘egg-shell psyche’ principle which is equivalent to the ‘egg-shell skull’ principle [40]. Further, Justice Basten said that where events actually occurred in the workplace, if perceived by the victim as creating an offensive or hostile working environment, and a psychological injury followed, it is open to conclude that causation is established. [69].

 

This paper deals with not only bullying by judges, but also by lawyers . Such behaviour occurs with respect to the following relationships, lawyer against lawyer, lawyer against client, lawyer against witness, lawyer against partner or employee and judge against others. In his confirmation hearings before the United States Senate, Chief Justice John Roberts said that:

 

“Judges are like umpires. Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.”

 

He went on to say that his role on the Supreme Court would be characterised by “modesty and humility”.[4] If the judge is the ultimate umpire of a courtroom it is up to the judge to set the tone of proceedings. Provisions exist to make sure that the advocates and the witnesses behave themselves with respect to each other and to the court. The difficulty always arises when it is the judge whose behaviour causes concern.

Ian Barker QC writing in chapter 22 of Appealing to the Future: Michael Kirby and his Legacy[5] said:

 

“Personally I have found practice as a barrister to involve as much unpleasantness as goodwill. To say “I love the law” rather glosses over the many occasions when loving the law is as difficult as loving some of its judges. As I see it, if a barrister does not enter the profession suffering from some bipolar disorder, the chances are he or she will eventually leave it enduring at least some form of depression.”

 

He went on to describe displays of judicial bullying exhibited by at least two members of the Court of Appeal which was dealing with an application to strike off a barrister for misconduct.[6] Barker recounts the application made by the barrister’s counsel, L J (Bill) Priestley QC, who applied to have the President Sir Athol Moffit and Justice Ray Reynolds disqualify themselves because of pre-judgment of the conduct of the barrister in an adverse finding in the Wendy Bacon trial. Barker said that their reaction to this application as being “sarcastic, contemptuous and personally abusive of counsel”. As observers saw it, the conduct of the two judges, particularly Moffit P was a disgraceful display of “judicial savagery”[7] He contrasted their behaviour to the change in the atmosphere of the NSW Court of Appeal when Michael Kirby was appointed its President. He quotes from a speech made by another judge of the Court of Appeal, Dennis Mahoney at the unveiling of a portrait of Kirby in the Bar Association common room:

 

“During the Kirby Presidency there was a change in the kindness…..the courtesy… shown to the Bar. In earlier times, when I was in practice at the Bar, one did not expect kindness from the Bench. That was not the custom. Those who remember their appearances before Sir Alan Taylor, Sir Frank Kitto and later before Sir Garfield Barwick will understand what I mean. The Court of Appeal, understandably perhaps, adopted a similar ethos. The Moffit Court believed that one procured most help from the Bar by the whip rather than a kind word. Perhaps that was right.

 

Under Kirby’s Presidency that changed. The Court of Appeal became a different place. There was courtesy amounting often to kindness. I do not argue whether this was a good thing. One may argue for and against discipline. But under the Kirby Presidency the ethos of the Court changed. And a patient courtesy in a Court is no small thing. For myself I found the Court to be a more pleasant place in which to be.”

 

Despite the courtesy and change of tone evidenced by the Kirby Court of Appeal excesses can still occur, more recent, infamous examples in New South Wales were the two magistrates whose behaviour caused them to appear before the NSW Parliament pleading for their positions. One of the magistrates as reported by Richard Ackland in The Age of 17 June 2011, was plainly abusive of an unrepresented person, whereas another delighted in embarrassing litigants and pressuring them to resolve their matters. Perhaps these magistrates’ cases, because of the existence of the Judicial Commission legislation, may give other judges cause to be concerned that their own courtroom behaviour may come under such scrutiny.

 

This is not only an Australian problem. In the same New Yorker article quoted above it was said that when Antonin Scalia was appointed in 1986 he brought a new “gladiatorial spirit” to the US Supreme Court. However, in the Senate confirmation hearings of President Obama’s choice of Sonia Sotomayor to the  Supreme Court  in 2009 she was closely questioned about her temperament by Senator Lindsey Graham (Republican-South Carolina ).He put to her an article which said that she was a terror on the bench, a bit of a bully. “You stand out on the 2^ndCircuit like a sore thumb”. Sotomayor agreed she was a challenger of counsel and asked tough questions, but the 2^nd Circuit was a “Hot bench” she said. It was stated about her in the New York Timesof May 27 2009 by Gerard N Magliocca,  “But a judge who does not probe a lawyer’s case and expose its weaknesses is not doing her job” . Judge Sotomayor was confirmed. However, a year later a real Judge Judy, Judge Judith Raub Eiler was suspended from her judicial duties by the Washington State Supreme Court for five days without pay on charges brought by the State Commission on Judicial Conduct for engaging in “a pattern or practice of rude, impatient and undignified treatment” of people who appeared before her.

 

One can understand in many courts how judges can have their patience tried by rude litigants, ill prepared or impunctual practitioners or practitioners engaging in bullying behaviour themselves. Some lawyers can be infuriating. To set a better tone in the court room cross-examination  needs to be conducted in a more civilised manner than what has been the robust approach in the past. Cross-examiners who shout or abuse witnesses should be stopped by the judge acting as a true umpire .Even Rugby League has abolished the shoulder charge. Many practitioners once they step foot in the courtroom seem to have a bad case of “white line fever” common in the sporting arena and  regard cross-examination as the last  legal  blood sport . Counsel who have high-conflict personalities may infect the whole process and in turn may become judges with high conflict personalities. One can understand that in a busy courtroom and in difficult cases tempers can get frayed.  One is not expecting lawyers and judges to sign up with the World Kindness Movement. Stress in our work and in the court room is  necessary and assists to get work done efficiently, but one needs to learn and note the signs  when stress turns to distress. Too much work with poor administrative assistance affects many in our profession.  Many courts are being squeezed by government budgetary restraints. In many courts more cases are being tried by less judges. As judges and advocates we must, like anyone else demand safer workplaces. We must treat each other better and with dignity. Litigation should not be another form of unarmed combat. We must stand up for our rights to demand safer workplaces otherwise the depressed fate of lawyers as identified by Ian Barker awaits many of us.

 

The judges are responding to this well-recognised problem in our society. In early February last year the National Judicial College of Australia devoted its annual conference at the Australian National University to ‘Managing People in Court’. One of the sessions dealt with “Overbearing Conduct inCourt by Judges and Lawyers’. Justice Glenn Martin of the Queensland Supreme Court who had formerly been President of the Queensland Bar Association had been confronted with a complaint from a relatively junior barrister who when he stood up to make his final submissions was met with this remark by the judge; “You’re an idiot. Do your clients know you’re an idiot?”.

That was an extreme example of rudeness. In dealing with such behaviour Justice Martin said:

 

“There is a line between rudeness and the judicial anxiety to move a case along. There is a line between the proper management of a trial and bullying. These lines can be sharp and bright or broad and grey. The nature of the lines is dependent upon the circumstances of the trial, the nature of the matter being adjudicated, the stage which the trial has reached, the length of the trial, the complexity of the trial and a myriad other circumstances which can develop and which are so varied that any definition of bullying or overbearing conduct will necessarily be very permeable.”

 

In considering why judges behave poorly in court Justice Martin said it may be more for the opinion of a psychologist than of another judge however it was well recognised that:

 

“Some judges seem to need to vent for the first half hour or so, after which the day settles into a reasonably harmonious programme. Others are more Vesuvian, and are liable to unexplained and irregular eruptions which can cover the courtroom with judicial ash. Was it due to a lack of maternal love or are they just miserable bastards?”

 

However, one is necessarily reluctant to complain however that is a function that the Bar Association or Law Society are set up to do, in theory to protect their members. Justice Martin went on to say that:

 

“Most judicial officers who engage in this type of behaviour are repeat offenders. They are known to the profession and, often, to the head of jurisdiction. With respect to one such person, I was encouraged to report any complaints because the head of that court was concerned and wanted to have a case to put to the judge in question. Even if such a request is not made it is tactically better, and more likely to reduce the likelihood of repercussion to individuals, to provide as many examples as possible. It is the same as mounting any sort of case. Detailed particulars and the use of only the strongest examples will be more likely to result in success.”

 

Of course in New South Wales in addition to these informal processes we have the Judicial Commission. Although the ultimate remedy of dismissal of a judicial officer is cumbersome .It is  curtailed by the need for that to be done by a Parliament which in New South Wales is colloquially known as the “Bear Pit” and is hardly the best body to deliberate upon bullying behaviour.

The editor of the Australian Law Journal, Acting Justice Peter Young commented upon Justice Martin’s paper in the June 2013 edition ( 87 ALJ 371-372 ).He wrote,

“However, a judge who is considered weak will be exploited by the Bar. When I was firstappointed in 1985 I was speaking with a judge who had been appointed the previous year. He told me of his problems with the Bar. I considered his problems were caused by him being too nice. I put in place a strategy to show I was not prepared to be trifled with. This succeeded in that I soon got a reputation for expecting good work and being unsympathetic to those who fell short of proper standards. A thought that often flows through my mind is: “He or she is being paid thousands of dollars in this brief. The presentation shows very poor preparation, and he or she is really just dumping all the difficulties in my lap, without giving me proper assistance. Why should I accept that lying down?”Sometimes the thought grew into my expressing to the advocate that I expected him or her to have given me more assistance. Doubtless some of the advocates would have classed that as bullying.Some years ago Norman, a senior clergyman, stated that he had never become a bishop as he was“not a big enough bastard”. In reply the Diocesan Bishop said: “Norman, sometimes you’ve got to be. It’s the same with judges.”

 

In trying to formulate an answer to this issue he said as follows,

“There appears to be a serious problem for 21st-century advocates shown by the rates of suicide and mental breakdown of lawyers. However, we must be careful not to class every factor which may have exacerbated the breakdown of fragile personality as bullying. Further, it may be that the Barristers’ Admission Boards should insist on a psychological assessment of candidates to weed out those who are unable to cope with critical comments from the judiciary.”

 

I struggle to believe that Young J’s approach is correct either emotionally  or legally. Perhaps like in the movie Jurassic Park  dinosaurs still walk across Queen’s Square to work .At the same National Judicial College conference earlier this the ANU’s Professor Tony Foley spoke of recent studies of anxiety amongst recently admitted legal practitioners. He offered the tragic 2010 example of a young solicitor employed by The WA Legal Aid Office (the Office) who had been berated by a magistrate whose behaviour was causally linked to the solicitor’s suicide.

Professor Foley identified that:

“As a consequence, that Office has put in place a proactive support scheme to protect their young lawyers and provide them with some resilience strategies. Their policy and practice for addressing the issue provides one example of how to respond to judicial bullying:

What Legal Aid WA management is essentially doing is accepting that from their young lawyers’ point of view that it is an issue. They have sought to raise awareness that bullying is unacceptable, and they have developed some policies to address its occurrence. They have normalised a culture that says bullying is not acceptable, which says ‘we are not going to accept that our young lawyers or indeed our lawyers generally are bullied’.”

 

To address allegations of bullying they have implemented what they say is a routine ‘Incident reporting protocol’. So if a young lawyer claims they have been bullied in court, when they come back to the Office reporting the incident is standard practice. They are counselled and the complaint is taken seriously. The Office obtains a transcript – occasionally including the audio tape (lawyers would be well aware that often the transcript might not pick up what might be some aggressive language in the courtroom).If they feel that there is a foundation for a complaint then a complaint is made to the relevant chief judge or magistrate. In addition to this responsiveness there has been initial safety and effective interaction training for their lawyers and paralegals conducted and designed to assist their lawyers to feel confident in their own capacity. These were followed by group sessions led by a psychologist to encourage the young lawyers to consider questions such as ‘How well am I? How do I get help?’ and provide them with tools and insights designed to improve their resilience.

 

Legal Aid WA continues to monitor the safety and resilience of their young lawyers. Part of the training program for their graduate lawyers is a weekly training day and a compulsory and regular part of that training program now includes a session on ‘How are you travelling?’ ‘What have been your experiences in the courtroom?’

 

All this is positive. Having a program and actively implementing anti-bullying processes works. Research confirms such processes can have a significant and positive effect on the prevalence of workplace bullying, including in the lawyer’s workplace of the courtroom.[8]”

These protocols may be useful to follow in other law practices particularly with junior practitioners to prepare them for the rigours of legal practice. A duty of care exists at common law to ensure that an employee is capable of the work they have been given and when they need assistance.

However, despite these studies it is just not only junior lawyers who can suffer from anxiety and depression contributed to by events in and around the courtroom. Many  older lawyers perhaps have had coping mechanisms in place for many years to steel one for the courtroom drama. After years of managing a busy practice  it can all get too much. Burn out, self-medication or worse may occur. Sometimes coping  mechanisms can malfunction if there are other pressures  of a personal  or financial kind imposing themselves upon one’s psyche.A bad day in court before a recalcitrant, bullying judge may be the psychological tipping point.  The foregoing is useful to comply with our own and if relevant our employers’ duties under the Work Health and Safety Act(NSW) 2011.Under that statute one must  identify risks in our work places and to remove or moderate them. However, more fundamentally it is far more beneficial   for own and our colleagues’ health and welfare to be aware of this problem, to call it for what it is  and to do our part to change the culture which permits it to happen.

On New Years Day 2014 in Australia new laws governing workplaces came into force dealing with bullying. These new laws which amended the Fair Work Act  are within the jurisdiction of the Fair Work Commission(Commission) and will be of importance in advising clients how to manage these changes and how to represent them in the Commission.

 

About 15 years ago a few Sydney barristers were startled to discover  that taxation laws not only applied to them but also not to comply with the obligations required by the  revenue authorities  might imperil their professional standing and right to practice. In the same way these new “anti-bullying” laws either directly or by analogy dictate how we behave as employers of our staff and how as lawyers we deal with each other ,clients, witnesses and others with whom we have contact “at work”.The passing of these laws perhaps gives us all a chance to pause and consider how members of our profession, including judges behave at work.

Last year the newly re-installed Prime Minister, Kevin Rudd, in the dying days of the  43^rd Australian Parliament made this statement to the Parliament :

 “Political life is a very hard life, a very hard life indeed. … Let us all remember particularly on days like this that in this Parliament, and in this place, we are all human beings, we all have families and we all have emotions, so let us try – just try – to be a little kinder and gentler with each other in the further deliberations of this Parliament.”[1]

 

Rudd’s comments seeking a kinder and a gentler place echoed the remarks made in a couple of valedictory speeches made by retiring members of that Parliament.

 

The National Party member for the Queensland seat of Hinkler, Paul Neville, in a generous speech traversing a distinguished career, praised both his political allies and his foes.  However, he made this comment:

“As I leave this Parliament, I pray that in subsequent Parliaments we see a return to civility in this place.  Surely it is not beyond our capacity to make Question Time what it should be – an enlisting of information rather than the forum for meaningless spin and invective. Like it or not it is a vehicle by which the public judge us because that is the forum of Parliament that we often see.  Surely we can do as great a job as New Zealand, Canada, UK and France.  Despite the expectation of the new paradigm, it gets progressively worse with each Parliament.”[2]

 

Alex Somlyay, another Queenslander equally made a plea to Parliamentarians to respect each other more than what had been his recent experience.[3]

 

Perhaps the departing parliamentarians who  stressed this  focus upon treating each other better  may have had in mind the passing of this legislation.

 

The amendments to the Act adopts a definition of workplace bullying of someone being   bullied at work if an individual or group of individuals repeatedly behaves unreasonably ,and the behaviour creates a risk to health and safety.The changes explicitly excludes from the definition of workplace bullying “reasonable management action carried out in a reasonable manner”, a provision which aims to recognise the need for managers to be able to give instructions to their workers. Disciplinary action or action taken in response to poor performance is not sought to be regulated under the Amendment Act, which recognises the rights and obligations of managers to give reasonable direction or feedback to workers.

 

The powers of the Commission in dealing with the applications is not to make pecuniary awards but to make orders which stop the offending behaviour and put in place mechanisms to avoid such actions happening again.

 

Types of orders the Commission may make include, for example:

• the individual or group of individuals stop the specified behaviour;

• regular monitoring of behaviours by an employer;

• compliance with a workplace bullying policy;

• the provision of information and additional support and training; or

• review of existing workplace bullying policies.

 

Should the Commission make an order that workplace bullying cease, and that order is contravened, a person affected by the contravention, a health and safety inspector or an industrial association may seek a remedy in court. Civil remedy provisions enlivened by a breach of an orderwill attract maximum monetary penalties of $10,200 for individuals and $51,000 for companies.

 

One of the chief hazards facing lawyers  is to suffer a work-related psychological injury. Accordingly these new laws deal with the behaviours which give rise to such a risk and how to curb it. If some retiring politicians have spoken about the loss of civility in public life we as lawyers should take note . We should recognise that community expectations have changed and that aspects of the way some lawyers have behaved   in and out of the court room need to be adjusted.On account of this change of expectations the behaviour of lawyers will I predict be a new area of professional disciplinary concern as it already has for some members of the judiciary.

 

It is some years ago now that I wrote an article about bullying in the courtroom for the NSW Law Society Journal (December 2004) entitled “Of Dinosaurs and Bullying Judges”. The article received close attention by both the print and electronic media. I received many letters and phone calls from practitioners about the piece. A few days after its publication, a former head of my chambers, who had become a judge in the Supreme Court passed me on Phillip Street  and said “Good morning Jeffrey, I read your article, we all did”. Ominously, he then said “We are waiting for you”.

 

The subject of bullying in the workplace has been the subject of much comment and litigation over the past twenty years or so. Depending upon a victim’s pre-disposition or fragility bullying behaviour can be the cause of psychological injury. The legal test as to whether an event can cause psychological injury is undemanding. In State Transit Authority of NSW v Chemler [2007] NSWCA 249 Spigelman CJ said that employers take their employees as they find them. There’s an ‘egg-shell psyche’ principle which is equivalent to the ‘egg-shell skull’ principle [40]. Further, Justice Basten said that where events actually occurred in the workplace, if perceived by the victim as creating an offensive or hostile working environment, and a psychological injury followed, it is open to conclude that causation is established. [69].

 

This paper deals with not only bullying by judges, but also by lawyers . Such behaviour occurs with respect to the following relationships, lawyer against lawyer, lawyer against client, lawyer against witness, lawyer against partner or employee and judge against others. In his confirmation hearings before the United States Senate, Chief Justice John Roberts said that:

 

 “Judges are like umpires. Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.”

 

He went on to say that his role on the Supreme Court would be characterised by “modesty and humility”.[4] If the judge is the ultimate umpire of a courtroom it is up to the judge to set the tone of proceedings. Provisions exist to make sure that the advocates and the witnesses behave themselves with respect to each other and to the court. The difficulty always arises when it is the judge whose behaviour causes concern.

 Ian Barker QC writing in chapter 22 of Appealing to the Future: Michael Kirby and his Legacy[5] said:

 

“Personally I have found practice as a barrister to involve as much unpleasantness as goodwill. To say “I love the law” rather glosses over the many occasions when loving the law is as difficult as loving some of its judges. As I see it, if a barrister does not enter the profession suffering from some bipolar disorder, the chances are he or she will eventually leave it enduring at least some form of depression.”

 

He went on to describe displays of judicial bullying exhibited by at least two members of the Court of Appeal which was dealing with an application to strike off a barrister for misconduct.[6] Barker recounts the application made by the barrister’s counsel, L J (Bill) Priestley QC, who applied to have the President Sir Athol Moffit and Justice Ray Reynolds disqualify themselves because of pre-judgment of the conduct of the barrister in an adverse finding in the Wendy Bacon trial. Barker said that their reaction to this application as being “sarcastic, contemptuous and personally abusive of counsel”. As observers saw it, the conduct of the two judges, particularly Moffit P was a disgraceful display of “judicial savagery”[7] He contrasted their behaviour to the change in the atmosphere of the NSW Court of Appeal when Michael Kirby was appointed its President. He quotes from a speech made by another judge of the Court of Appeal, Dennis Mahoney at the unveiling of a portrait of Kirby in the Bar Association common room:

 

“During the Kirby Presidency there was a change in the kindness…..the courtesy… shown to the Bar. In earlier times, when I was in practice at the Bar, one did not expect kindness from the Bench. That was not the custom. Those who remember their appearances before Sir Alan Taylor, Sir Frank Kitto and later before Sir Garfield Barwick will understand what I mean. The Court of Appeal, understandably perhaps, adopted a similar ethos. The Moffit Court believed that one procured most help from the Bar by the whip rather than a kind word. Perhaps that was right.

 

Under Kirby’s Presidency that changed. The Court of Appeal became a different place. There was courtesy amounting often to kindness. I do not argue whether this was a good thing. One may argue for and against discipline. But under the Kirby Presidency the ethos of the Court changed. And a patient courtesy in a Court is no small thing. For myself I found the Court to be a more pleasant place in which to be.”

 

Despite the courtesy and change of tone evidenced by the Kirby Court of Appeal excesses can still occur, more recent, infamous examples in New South Wales were the two magistrates whose behaviour caused them to appear before the NSW Parliament pleading for their positions. One of the magistrates as reported by Richard Ackland in The Age of 17 June 2011, was plainly abusive of an unrepresented person, whereas another delighted in embarrassing litigants and pressuring them to resolve their matters. Perhaps these magistrates’ cases, because of the existence of the Judicial Commission legislation, may give other judges cause to be concerned that their own courtroom behaviour may come under such scrutiny.

 

This is not only an Australian problem. In the same New Yorker article quoted above it was said that when Antonin Scalia was appointed in 1986 he brought a new “gladiatorial spirit” to the US Supreme Court. However, in the Senate confirmation hearings of President Obama’s choice of Sonia Sotomayor to the  Supreme Court  in 2009 she was closely questioned about her temperament by Senator Lindsey Graham (Republican-South Carolina ).He put to her an article which said that she was a terror on the bench, a bit of a bully. “You stand out on the 2^ndCircuit like a sore thumb”. Sotomayor agreed she was a challenger of counsel and asked tough questions, but the 2^nd Circuit was a “Hot bench” she said. It was stated about her in the New York Timesof May 27 2009 by Gerard N Magliocca,  “But a judge who does not probe a lawyer’s case and expose its weaknesses is not doing her job” . Judge Sotomayor was confirmed. However, a year later a real Judge Judy, Judge Judith Raub Eiler was suspended from her judicial duties by the Washington State Supreme Court for five days without pay on charges brought by the State Commission on Judicial Conduct for engaging in “a pattern or practice of rude, impatient and undignified treatment” of people who appeared before her.

 

One can understand in many courts how judges can have their patience tried by rude litigants, ill prepared or impunctual practitioners or practitioners engaging in bullying behaviour themselves. Some lawyers can be infuriating. To set a better tone in the court room cross-examination  needs to be conducted in a more civilised manner than what has been the robust approach in the past. Cross-examiners who shout or abuse witnesses should be stopped by the judge acting as a true umpire .Even Rugby League has abolished the shoulder charge. Many practitioners once they step foot in the courtroom seem to have a bad case of “white line fever” common in the sporting arena and  regard cross-examination as the last  legal  blood sport . Counsel who have high-conflict personalities may infect the whole process and in turn may become judges with high conflict personalities. One can understand that in a busy courtroom and in difficult cases tempers can get frayed.  One is not expecting lawyers and judges to sign up with the World Kindness Movement. Stress in our work and in the court room is  necessary and assists to get work done efficiently, but one needs to learn and note the signs  when stress turns to distress. Too much work with poor administrative assistance affects many in our profession.  Many courts are being squeezed by government budgetary restraints. In many courts more cases are being tried by less judges. As judges and advocates we must, like anyone else demand safer workplaces. We must treat each other better and with dignity. Litigation should not be another form of unarmed combat. We must stand up for our rights to demand safer workplaces otherwise the depressed fate of lawyers as identified by Ian Barker awaits many of us.

 

The judges are responding to this well-recognised problem in our society. In early February last year the National Judicial College of Australia devoted its annual conference at the Australian National University to ‘Managing People in Court’. One of the sessions dealt with “Overbearing Conduct inCourt by Judges and Lawyers’. Justice Glenn Martin of the Queensland Supreme Court who had formerly been President of the Queensland Bar Association had been confronted with a complaint from a relatively junior barrister who when he stood up to make his final submissions was met with this remark by the judge; “You’re an idiot. Do your clients know you’re an idiot?”.

 That was an extreme example of rudeness. In dealing with such behaviour Justice Martin said:

 

“There is a line between rudeness and the judicial anxiety to move a case along. There is a line between the proper management of a trial and bullying. These lines can be sharp and bright or broad and grey. The nature of the lines is dependent upon the circumstances of the trial, the nature of the matter being adjudicated, the stage which the trial has reached, the length of the trial, the complexity of the trial and a myriad other circumstances which can develop and which are so varied that any definition of bullying or overbearing conduct will necessarily be very permeable.”

 

In considering why judges behave poorly in court Justice Martin said it may be more for the opinion of a psychologist than of another judge however it was well recognised that:

 

“Some judges seem to need to vent for the first half hour or so, after which the day settles into a reasonably harmonious programme. Others are more Vesuvian, and are liable to unexplained and irregular eruptions which can cover the courtroom with judicial ash. Was it due to a lack of maternal love or are they just miserable bastards?”

 

However, one is necessarily reluctant to complain however that is a function that the Bar Association or Law Society are set up to do, in theory to protect their members. Justice Martin went on to say that:

 

“Most judicial officers who engage in this type of behaviour are repeat offenders. They are known to the profession and, often, to the head of jurisdiction. With respect to one such person, I was encouraged to report any complaints because the head of that court was concerned and wanted to have a case to put to the judge in question. Even if such a request is not made it is tactically better, and more likely to reduce the likelihood of repercussion to individuals, to provide as many examples as possible. It is the same as mounting any sort of case. Detailed particulars and the use of only the strongest examples will be more likely to result in success.”

 

Of course in New South Wales in addition to these informal processes we have the Judicial Commission. Although the ultimate remedy of dismissal of a judicial officer is cumbersome .It is  curtailed by the need for that to be done by a Parliament which in New South Wales is colloquially known as the “Bear Pit” and is hardly the best body to deliberate upon bullying behaviour.

The editor of the Australian Law Journal, Acting Justice Peter Young commented upon Justice Martin’s paper in the June 2013 edition ( 87 ALJ 371-372 ).He wrote,

“However, a judge who is considered weak will be exploited by the Bar. When I was firstappointed in 1985 I was speaking with a judge who had been appointed the previous year. He told me of his problems with the Bar. I considered his problems were caused by him being too nice. I put in place a strategy to show I was not prepared to be trifled with. This succeeded in that I soon got a reputation for expecting good work and being unsympathetic to those who fell short of proper standards. A thought that often flows through my mind is: “He or she is being paid thousands of dollars in this brief. The presentation shows very poor preparation, and he or she is really just dumping all the difficulties in my lap, without giving me proper assistance. Why should I accept that lying down?”Sometimes the thought grew into my expressing to the advocate that I expected him or her to have given me more assistance. Doubtless some of the advocates would have classed that as bullying.Some years ago Norman, a senior clergyman, stated that he had never become a bishop as he was“not a big enough bastard”. In reply the Diocesan Bishop said: “Norman, sometimes you’ve got to be. It’s the same with judges.”

 

In trying to formulate an answer to this issue he said as follows,

“There appears to be a serious problem for 21st-century advocates shown by the rates of suicide and mental breakdown of lawyers. However, we must be careful not to class every factor which may have exacerbated the breakdown of fragile personality as bullying. Further, it may be that the Barristers’ Admission Boards should insist on a psychological assessment of candidates to weed out those who are unable to cope with critical comments from the judiciary.”

 

I struggle to believe that Young J’s approach is correct either emotionally  or legally. Perhaps like in the movie Jurassic Park  dinosaurs still walk across Queen’s Square to work .At the same National Judicial College conference earlier this the ANU’s Professor Tony Foley spoke of recent studies of anxiety amongst recently admitted legal practitioners. He offered the tragic 2010 example of a young solicitor employed by The WA Legal Aid Office (the Office) who had been berated by a magistrate whose behaviour was causally linked to the solicitor’s suicide.

 Professor Foley identified that:

“As a consequence, that Office has put in place a proactive support scheme to protect their young lawyers and provide them with some resilience strategies. Their policy and practice for addressing the issue provides one example of how to respond to judicial bullying:

What Legal Aid WA management is essentially doing is accepting that from their young lawyers’ point of view that it is an issue. They have sought to raise awareness that bullying is unacceptable, and they have developed some policies to address its occurrence. They have normalised a culture that says bullying is not acceptable, which says ‘we are not going to accept that our young lawyers or indeed our lawyers generally are bullied’.”

 

To address allegations of bullying they have implemented what they say is a routine ‘Incident reporting protocol’. So if a young lawyer claims they have been bullied in court, when they come back to the Office reporting the incident is standard practice. They are counselled and the complaint is taken seriously. The Office obtains a transcript – occasionally including the audio tape (lawyers would be well aware that often the transcript might not pick up what might be some aggressive language in the courtroom).If they feel that there is a foundation for a complaint then a complaint is made to the relevant chief judge or magistrate. In addition to this responsiveness there has been initial safety and effective interaction training for their lawyers and paralegals conducted and designed to assist their lawyers to feel confident in their own capacity. These were followed by group sessions led by a psychologist to encourage the young lawyers to consider questions such as ‘How well am I? How do I get help?’ and provide them with tools and insights designed to improve their resilience.

 

Legal Aid WA continues to monitor the safety and resilience of their young lawyers. Part of the training program for their graduate lawyers is a weekly training day and a compulsory and regular part of that training program now includes a session on ‘How are you travelling?’ ‘What have been your experiences in the courtroom?’

 

All this is positive. Having a program and actively implementing anti-bullying processes works. Research confirms such processes can have a significant and positive effect on the prevalence of workplace bullying, including in the lawyer’s workplace of the courtroom.[8]”

These protocols may be useful to follow in other law practices particularly with junior practitioners to prepare them for the rigours of legal practice. A duty of care exists at common law to ensure that an employee is capable of the work they have been given and when they need assistance.

However, despite these studies it is just not only junior lawyers who can suffer from anxiety and depression contributed to by events in and around the courtroom. Many  older lawyers perhaps have had coping mechanisms in place for many years to steel one for the courtroom drama. After years of managing a busy practice  it can all get too much. Burn out, self-medication or worse may occur. Sometimes coping  mechanisms can malfunction if there are other pressures  of a personal  or financial kind imposing themselves upon one’s psyche.A bad day in court before a recalcitrant, bullying judge may be the psychological tipping point.  The foregoing is useful to comply with our own and if relevant our employers’ duties under the Work Health and Safety Act(NSW) 2011.Under that statute one must  identify risks in our work places and to remove or moderate them. However, more fundamentally it is far more beneficial   for own and our colleagues’ health and welfare to be aware of this problem, to call it for what it is  and to do our part to change the culture which permits it to happen.