A Bad Actor at your Firm did a Bad Act. Now What?

Documentation

Narrate the story. Write down what happened and be as specific as possible. Include the date and time. List who was present. The closer in time to the event, the more reliable this account will be considered later on.

EITHER write down what happened with the Bad Actor
OR use your phone’s camera and videotape/audio record yourself, unless your phone auto-publishes to social media. Avoid discussing the event(s) at issue on social media.

Documents. What supporting documents exist?

Before you start pulling together any documentation:

Remember that your law firm controls your work email, computer, phone, etc. Nothing on them is yours and YOU SHOULD NOT EXPECT PRIVACY.

Hard copies: Make hard copies of documents that support your story, i.e., print important documents (emails, texts, photos, etc.).

REDACT in order to:
- Protect proprietary/firm information;
- Protect your client’s information; and
- Protect attorney-client privilege.

Make photocopies of redacted hard copies. This method of documenting is better than emailing documents to your personal account.

Social Media. Again, think carefully before mentioning anything on social media where you have no realistic expectation of privacy, where information is outside of your control, and where others can manipulate what you post. If in doubt, don’t post

Self Care

Take care of yourself. If you don’t know where to start, RAINN has resources.

You can call or text 800.656.HOPE

Or chat online: http://online.rainn.org

Who to tell?

Assume that your texts, emails, PMs, posts (even on private/locked accounts), etc. will be discovered in litigation.

(1) Outside the Firm. Why tell someone outside the Firm? (1) For emotional safety and (2) because you want witnesses. Who might you tell?

Friends you trust.
Former employees who may have had similar experiences with the Bad Actor or others at the Firm.
Therapists: these conversations are likely privileged.

(2) Inside the Firm. Why tell someone inside the Firm? To give the Firm notice.

Allies: who are they? Are they connected to the Bad Actor? Do they understand the office or have background? Think about partners, associates, paralegals, secretaries, and support staff.
- Allies may not be as friendly or as helpful as you’d like. You may discover that good lawyers do not have the emotional, social, or interpersonal skills to handle this.
If the Firm has an Ombudsperson, s/he should have helpful resources. But notice to the Ombudsperson may NOT constitute official notice to the Firm.
Firm Leadership must be notified to put the Firm on notice. Depending on the Firm’s structure and the Bad Actor’s relationships, consider talking to the Firm’s General Counsel, Managing Partner, a member of the Managing Committee, or Human Resources.
If the Firm has an harassment policy, you must follow it.

How to tell your story?

Prepare what you want to say. Practice in front of a mirror or moot it with a true ally.
Consider enlisting the assistance of a high-stakes communication consultant to give you professional advice on your presentation.
Come up with your asks and a timeline for each ask. Think about the following asks:
- An investigation? If your office is too small to have a HR Department (or you don’t want an internal investigation, for whatever reason), ask for an outside investigation. Generally, private attorneys also conduct investigations. Network, research, and come prepared with several names to suggest.
- A new supervisor?
- A new office location in the building?
- A new secretary?
- Telecommuting?
- FMLA leave?
- Reassigning work to other lawyers? Remember, you have an independent obligation to your clients. Do not commit malpractice by missing deadlines. This could lead to termination and a complaint against your license.
Do NOT give originals at the meeting: make photocopies or take pictures/screen shots to share.
Send a follow-up with an email confirming what was agreed to and the timeline.
Consider bringing a trusted someone to the meeting (1) as a witness and (2) for emotional support. Note: the Firm is not obligated to allow you to bring a witness.
Can you unilaterally tape-record this meeting? Depends on your jurisdiction.

Waiting for investigation results

Can you continue working under the status quo while the Firm investigates?
Can you change offices?
Can you telecommute?

Remember: if you are still working, you have an independent obligation to your clients. Do not commit malpractice by missing deadlines. This could lead to termination and a complaint against your license. Ask, in writing, for help, reassignments, etc.

EEOC/Pre-litigation

If you want to sue, you need to go through the EEOC process first by filing a Charge.

https://www.eeoc.gov/employees/lawsuit.cfm

[There is a different process for federal employees: https://www.eeoc.gov/federal/fed_employees/complaint_overview.cfm]

Deadline to report generally starts from the day the Bad Actor did a Bad Act:

For federal employees, generally 45 days.
For most others, 180 days from the most recent instance (it may be longer).

https://www.eeoc.gov/employees/timeliness.cfm

Note: this clock does not stop because you notified HR or because you are following another avenue of relief.

EEOC has a public portal to file your Charge.

https://www.eeoc.gov/employees/process.cfm

The Charge is not a public record.

https://www.eeoc.gov/eeoc/foia/qanda_foiarequest.cfm

The Charge will be shared with the Firm for a response.

https://www.eeoc.gov/employers/process.cfm

Non-EEOC Options

There are two recent, high profile examples of employees bringing sexual harassment claims through suits raising state law tort claims:

Gretchen Carlson sued Roger Ailes individually in state court and settled shortly thereafter.
A class of women sued Harvey Weinstein and his companies and included state law tort claims. These claims were dismissed as untimely.

Although it is unknown if tort claims present a viable avenue for #MeToo relief, it may be worth considering these claims if you did not complete the EEOC process.

Can this job be saved?

If your Firm is big enough, perhaps you can move internally. You may need a new job.

Make sure your LinkedIn profile is up-to-date.
Make sure your resume is up-to-date.
- Does your law school or undergrad career services provide services to alums?
Start networking.
- Set up coffee with old friends from law school, women from professional activities (bar groups, Inn of Court, etc.), clients with an inhouse group, etc.
- Ask them to keep you apprised of any openings.
- Does your network have head hunters to suggest?
- Consider a truthful but incomplete story:
  - It’s time to move on.
  - I had always intended to hone my skills here and I’m ready for the next step.
  - [If you can truthfully say this] My family dynamic is changing (ailing inlaws, etc.) and I need a different structure.
Set up job alerts.
- Try sites like Glassdoor, LinkedIn, Indeed, CareerBuilder, TheLadders, Job.com, Monster, SimplyHired, and Us.jobs.
- For state level options, look for job alerts from your state’s bar, your state’s court system, your state’s government job site, and your law school placement office.

Negotiating the Exit

Can you stay in this job and wait for a new job offer?
Will you wait for the Firm to offer you a settlement or will you initiate the negotiations?
- Remember that you never begin a negotiation where you want to end up.
- Think about what you will ask for, where you can give, and what you must have.
- Consider having a close friend moot you and review your written responses.
- Consider enlisting the assistance of a negotiation or communication consultant to give you professional advice on your presentation.

If you want to initiate your exit negotiations:

How to calculate your first ask:
- Money. This is complicated. Under Title VII of the Civil Rights Act of 1964, you are entitled to back pay, front pay projected over a reasonable period of time, compensatory damages, potentially punitive damages, and attorney’s fees. All of your forms of damages should be taken into account, before making the first offer. A reasonable period of time to project front pay is in the five year range. Remember, this is a negotiation and your initial offer should not equal your bottom line.
- COBRA or health insurance marketplace costs: if you have insurance through the Firm, consider asking the severance package to include the cost of insurance premiums for 3-6 months.
- Retirement account: if your account is not vested, consider asking the Firm to release the full amount and any matching amount.
What the Firm will likely ask for:
- Expect the Firm to ask you to leave the Firm upon reaching a deal.
- Expect the Firm to propose a non-disclosure agreement. Review the proposed language carefully:
  - Are you willing to agree to refrain from disclosing this?
  - Is the proposed language so broad that it includes your friends’ social media? Has your story spread through the local legal community?
  - Does any language make it clear that you can continue to pursue your EEOC claim? Does this language make it clear that you will get a good reference?
Plan to counter with a non-disparagement agreement.

If you want to wait, expect an offer to come later than you would like and that it will be disappointing. Do not feel the need to make an immediate counter-offer. Assume that the Firm will not make an offer before your last day.

If you wait to initiate negotiations after you leave it may feel less messy, but it will likely be less effective in getting a response from the firm. They will likely view the request as sour grapes and you are less likely to get anything monetarily. But you will be free to speak your truth.

Seeking Legal Advice

This webpage exists because of the difficulty lawyers have had hiring counsel when they find themselves in #MeToo situations. Some of that is due to the fact that they may get business and referrals from this firm, they may fear the resources that the firm has, or they may want to have a good reputation with the firm for other reasons. This doesn’t mean that there aren’t lawyers out there who can help, they are out but they are hard to find.

You should hire counsel, if you can. If you do hire counsel and tell the Firm that you have done so, you will change your employment relationship with the Firm from that point forward.

#MeToo For Lawyers

A self help toolkit for those facing #MeToo situations in their legal jobs

A Bad Actor at your Firm did a Bad Act. Now What?

Documentation

Self Care

Who to tell?

How to tell your story?

Waiting for investigation results

EEOC/Pre-litigation

Non-EEOC Options

Can this job be saved?

Negotiating the Exit

Seeking Legal Advice

#MeToo For Lawyers

A self help toolkit for those facing #MeToo situations in their legal jobs

A Bad Actor at your Firm did a Bad Act. Now What?

Documentation

Self Care

Who to tell?

How to tell your story?

Waiting for investigation results

EEOC/Pre-litigation

Non-EEOC Options

Can this job be saved?

Negotiating the Exit

Seeking Legal Advice

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