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Employee discipline requires discretion

‘Mistakes happen’ but mishandling the punishment can make a bad situation worse
By Bruce McDougall
July 17 2015 issue

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It takes a delicate hand to apply a uniform approach to inappropriate behaviour.

During the second hour of an intense examination for discovery, a junior associate asked a series of questions while a more senior partner from his firm looked on with obvious exasperation. Leaning forward in her chair, tapping her pen, shaking her head, the partner finally raised her hand and told him to stop talking. “How can you ask such stupid questions?” she said.

Humiliated, the associate went silent and remained that way throughout the rest of the session. Neither the partner nor the associate spoke again about the exchange, but in the opinion of employment lawyers and HR professionals, the partner’s outburst was unquestionably inappropriate.

“Mistakes happen,” says Natalie MacDonald of Rudner MacDonald in Toronto. “But regardless of the mistake, the punishment should fit the crime. And don’t do it in public.”

As MacDonald observes, mistakes can range from the innocuous to the egregious, from simple tardiness and errors of judgment to misappropriating client funds. But the fundamental principles of discipline in a law firm remain the same.

“Do it fairly and reasonably,” she says. “And take steps not to humiliate or embarrass the person.”

Arthur Zeilikman, a partner with Zeilikman Law in Richmond Hill, Ont., distinguishes between mistakes that occur in the daily course of events and those that jeopardize a firm’s reputation. In simple situations, says Zeilikman, whose firm represents employers and employees in labour-related disputes, progressive discipline makes sense. A partner should review the person’s conduct, speak to the individual in private, explain the mistake and record the discussion in writing.

“If the same behaviour occurs again,” he says, “you can revisit the written record.”

More serious mistakes such as making inappropriate replies to partner requests or ignoring an inquiry from a client may warrant a warning that the individual’s job is at stake. In extreme situations, the individual may be fired on the spot.

“In my view, misappropriating funds or outright fraud are grounds for immediate termination, with just cause,” says MacDonald.

Most of the time, discipline involves conduct that falls between a simple mistake and an outright crime, and it can be applied more fairly and reasonably if a firm has adopted a written policy that outlines workplace procedures.

“People should know that there’s a way to deal with inappropriate behaviour,” says Antoinette Blunt, president of Ironside Consulting Services in Sault Ste. Marie, Ont.

Issues of discipline extend to all employees of a law firm, she says, and everyone has to know how the firm will deal with inappropriate conduct regardless of the individual involved.

“If an issue arises, they can go to the office manager, for example, or the finance person,” says Blunt, who has developed codes of conduct for several law firms. “It should be in the written policy.”

According to Alex Gallacher, managing director of Engage HR in Mississauga, Ont., written policies define conduct demanded by specific roles. It’s important to codify the role, he says, so that the employee can live up to the expected conduct.

“When an employee contravenes the requirements of the role, they should simply be reminded of those requirements and their obligation to fulfil them. This starts with a private, informal conversation and then moves up the ladder of progressive discipline, ideally as listed in an HR policy manual given to all employees.”

While written policies may sound effective in theory, many firms rely on less formal and more conventional checks and balances to monitor and correct inappropriate conduct.

“I haven’t seen many codes of conduct,” says employment lawyer Doug MacLeod, of MacLeod Law Firm in Toronto. “And I don’t recall a single instance of a firm dealing with a disciplinary issue by giving a written warning, followed by a suspension. That’s because lawyers are professionals. If they’re not performing, they don’t stay long.”

Rather than abiding by a rigid HR policy, MacLeod says, law firms and their employees live or die by their reputation, and they know that they have to conduct themselves in a way that preserves it.

“They have to be careful about how they represent the brand,” he says.

Associates can be held in check, MacLeod says, through annual performance reviews.

“If there are performance-related issues or if a client complains, it will be brought up during the review,” he says. “Performance reviews show whether you’re on track for partnership. If the associates are listening, they should pick it up. “

With associates who misbehave or make continual mistakes of judgment, most firms deliver a working notice of termination.

“Rather than calling the associate in for a meeting to discuss their conduct, the partners will give the person six months to find another job,” MacLeod says. “The firm may help, and only a small number of people will know that the individual has even received notice. If all goes well, the person gets an offer, then resigns.”

A firm’s more senior lawyers can be disciplined effectively, MacLeod adds, by adjusting their compensation, especially at larger firms that follow an elaborate compensation system.

“People on the compensation committee will talk to partners to assess the fairness of their compensation,” he says. “In an open and transparent system, partners will ask why one lawyer makes more than others. That’s an opportunity for an explanation regarding inappropriate conduct.”

Like MacLeod, Antoinette Blunt says culture influences behaviour at a law firm as much as written policies. That means recruiting and hiring people who fit the culture from the outset, possibly using psychological screening tools as well as face-to-face interviews.

Of course, lawyers are not shy when it comes to asserting their ego, especially if the individual is a prominent figure who attracts prestige to the firm.

“Professionals sometimes have a greater sense of self-worth,” MacLeod suggests. “They’re well educated, experts in their field. So ego is definitely a factor. But the same rules should apply to everyone.”

Gallacher admits that firms sometimes have to “cater a little bit to the individual’s ego” in applying discipline to their conduct. But if the action is well-grounded in fact, discipline is ultimately applied in the best interest of the firm. 

“If the individual is so prominent or well-known that they don’t care about the firm,” Gallacher says, “then it’s too late, so trigger the exit if the firm can afford it, or don’t waste your time and energy.”

However, firms that ignore the inappropriate behaviour of a prominent partner should be prepared for the consequences. Ultimately, everyone will know that the firm applies discipline differently to different individuals.

“Unwanted behaviour will inevitably become the new norm,” Gallacher says. 

Zeilikman agrees, although the reality may temper a firm’s enthusiasm for applying discipline in equal measure to all employees.

“The same rules should apply to everyone,” he says, “but if you terminate a public figure, they’ll have a hard time finding another position, so you’d better be sure you’re doing it right. If you get sued, you’ll have a hard time compensating for the person’s losses.”

Firms also have to appreciate the close relationships that individual partners maintain with their clients, says Zeilikman.

“The person could leave the firm and take the client with him. So you have to ask yourself who’s more replaceable: the partner or the client. That’s because, at the end of the day, a law firm is a business, and like all businesses, it has to make a profit to survive.”

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