No Girls Allowed?

Recently a Florida lawyer has been getting attention because he refuses to represent female clients. Kenny Leigh built his practice, now employing ten lawyers, with the slogan: “Men only. Family law only.” Mr. Leigh does not have anything against women, he says. The problem is that Florida family law is systematically biased against men. The Florida bar association, which must approve legal advertising, has asked him to drop the “men only” slogan, but it won’t take action against him unless someone files a discrimination suit. (Ontario lawyers who advertised their refusal to represent clients based on sex would likely run afoul of the Ontario Human Rights code, not to mention the Law Society of Upper Canada).

I can’t comment on the fairness of of Florida family law. All too often when someone claims that the law is unfair or that a particular judge is “biased,” what they really mean is, “I’m unhappy that I didn’t get what I wanted.” Some of Mr. Leigh’s critics were particularly upset by his admission that not all of the fathers he represents are “good dads”. He explains, “If I had to base my practice on just good dads, I'd be broke.” It strikes me as misguided to criticize Mr. Leigh for his willingness to represent “bad” fathers. We don’t expect criminal defense lawyers to represent only the innocent. Anyone in family court who needs a lawyer, “good parent” or not, should have access to one.

Mr. Leigh may be a particularly assertive “single sex” lawyer, but he isn’t the only one. David Pisarra is a California lawyer who also focuses on male clients, but for different reasons. Pisarra noticed that men and women approached legal issues differently. When he represented female clients in family law cases he found that they required a lot of emotional support. Meetings would go on for hours because he spent so much time discussing his clients’ personal problems. He found it uncomfortable to be pushed into a therapeutic role. Men, in contrast, didn’t expect their lawyers to be a source of emotional support. Pisarra found he could be blunt and direct with his male clients, and focus on legal tactics. And that is how he prefers to work.

I think that there are good reasons why a lawyer (or other professional) might want to create a niche for themselves working only for a specific clientele. Both Leigh and Pisarra claim that their specialization allows them to be more effective at what they do. What I found more disturbing about Leigh than his sex discrimination were the attitudes he conveyed about family law: "It's gloves off. It's nasty stuff." So divorce and family breakdown – already very difficult times in the lives of families and children – are characterized as a sport and (worse) as a violent contest. Now, I can imagine situations where family law disputes call for aggressive tactics. But we’ve seen again and again that hostile legal proceedings can make bad situations worse. They make it difficult or impossible for divorced couples to co-parent their children, they cost families a great deal of money, and they prolong emotional turbulence. Aside from the lawyers, does anyone benefit from drawn-out and antagonistic court proceedings? These are just some of the considerations in favour of mediating rather than litigating family law disputes.

Guest Blog at Spynga.com

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Investments, Fraud and Fairness

Bernie Madoff is currently in jail for master-minding the largest Ponzi scheme in history. But the saga is far from over for his investors. Irving J. Picard is the bankruptcy trustee appointed by the court and charged with recovering funds and then ensuring the fair distribution of any recovered money. So far Mr. Picard has filed lawsuits seeking to recover money from Madoff’s immediate family, from the so-called “feeder funds” whose directors profited from the fraud, and from major individual investors who profited. One lawsuit, against the estate of investor Jeffrey Picower, was recently settled for 7.2 billion dollars. Another, against the owners of the New York Mets, is currently in mediation.

One of the features of a Ponzi scheme is that investors who enter the scheme earlier have the possibility to profit from the fraud, whether or not they are aware what is going on. Since the funds of later investors go to pay for the “earnings” of earlier investors, investors signing on later in the fraud have less possibility to recover any “profits” and are at risk of losing more than the earlier investors. Mr. Picard has asked any investors who recovered more money than they invested in the last six years of the fraud to return their “earnings.” For example, if someone had invested $100 000 with Madoff and withdrew the annual “profit” of 11% each year for six years, that investor is being asked to return $66 000. This seems fair. There was, in effect, no profit from investments because the funds weren’t really invested. The $66 000 “profit” was the money paid into the fund by later (unluckier) victims. Even though our $100 000 investor didn’t know what was going on, he or she benefited from the fraud at the expense of others.

Now here is where it gets a little more complicated (and ethically interesting): We can assume that our imaginary investor is fairly unsophisticated. He or she was not in a position to suspect that Madoff was a fraudster. (Presumably, if our investor had suspected as much, he or she would have invested elsewhere.) But not all of Madoff’s investors were equally unsophisticated. Mr. Picard has argued that “sophisticated” investors, such as the owners of the Mets, should have suspected Madoff, although there is no evidence that they did. These investors should be treated, in effect, as if they did know. This would mean treating them as if they acted “with actual intent to hinder, delay or defraud creditors.” Mr. Picard is asking Fred Wilpon and his associates for the return of the “profits” from the last six years (requested from all investors), as well as the $132 million in “profits” from earlier years. He has also argued that because Mr. Wilpon ignored numerous “red flags” about Madoff, he should pay back all of the money he invested – around $700 million.

Mr. Picard suggests, in effect, that there are two kinds of Madoff victims – “sophisticated investors” who should have known better and “unsophisticated investors” who can’t be expected to have known better. The legal issues here are very intricate and turn on past interpretations of the doctrine of caveat emptor (“let the buyer beware”). The ethical issues strike me as just as intricate. If Madoff was not a fraudster, but rather a legitimate investor whose holdings were wiped out in the economic downturn, would we want to say that sophisticated and unsophisticated investors should be treated differently? It can be argued that large investors, such as the owners of the Mets and the various banks who invested with Maddoff, contributed to the perception of legitimacy that the fund enjoyed. I can imagine an unsophisticated investor thinking, “If J.P. Morgan is invested, it must be a good bet.” If the actions of large sophisticated investors did contribute to the losses of unsophisticated investors, should the former be held financially responsible? Perhaps most importantly, what mechanisms should be in place for the future, so that all investors, whatever their level of sophistication, have adequate information to make informed decisions?

Why use Workplace Mediation (as opposed to another solution)?

When I took my mediation training, several of my fellow students were already working in human resources or employee relations. Despite their different perspectives, they could all agree on one thing: microwave ovens are a major source of conflict in the workplace. Whether one person is warming up food that another finds smelly, or someone else is hogging the oven so no one else can warm up their lunch, the microwave is all too often a source of tension.

I found this surprising at the time and I was reminded of the microwave-as-flashpoint when I read about the recent Superior Court review of an Ontario Human Rights Tribunal (OHRT) decision. In the original decision Maxcine Telfer, a small businesswoman, had been ordered to pay $36,000 to a former employee because of alleged discrimination and harassment. Among other things, the OHRT arbitrator found the staff microwave use policy to be discriminatory. The complainant said that she began to feel targeted after her boss complained about the smell when she warmed some curry in the microwave. Apparently Ms. Telfer is extremely sensitive to smells and the office had a strict “no scents” policy in place.

Conservative commentators have had a field day with this story, and I won’t say more about the original decision or its reversal by the Superior Court. What I found most interesting about the episode was how a relatively trivial matter can blow up into something much more serious. If they’re fortunate, employees will find ways to get along despite microwave abuse and other sources of tension. But what to do when a low-level conflict intensifies? Usually it isn’t possible or desireable simply to fire or transfer everyone involved in a conflict. Better yet, how to devise policies in such a way as to avoid unnecessary conflict in the first place?

Workplace mediation can help. In mediation, each party in the dispute has a chance to express their point of view. Parties get the opportunity to listen to and understand each other’s perspective, and then work together to come up with creative ways of resolving their difficulties. Bringing in a mediator to facilitate discussion, whether this means an outsider or someone already in the company with mediation training, is a good idea for a number of reasons. Research indicates that people are more likely to respect a policy or decision that they have had a hand in crafting. If the boss simply devises and hands down a policy inevitably there will be someone who doesn’t feel that their concerns were taken into consideration. This can be bad for morale. A policy that the boss has devised without fully consulting employees may not really address all of the issues that are important to them. A group of people working together is more likely to devise a workable solution than a single person working alone. Moreover, while having a fair and reasonable, say, “microwave use policy” may be the single most important element in a happy workplace, it is not the sort of thing that most employers will want to spend a lot of time thinking about. Mediation is a way of sharing the burden.

Ethics and the Culture of Overwork

A friend recently told me that she hadn’t seen much of her husband lately. At first I wondered if their relationship was on the rocks. Instead it turns out that the new head of his division insists on 12-hour days from all the senior people. Now, I’ve put in my share of 12-hour days. When I had my first jobs teaching philosophy in university I had to work very hard and sometimes kept long hours. But I liked the work and I didn’t mind that much. I understood that many people have to keep even longer hours at jobs that they don’t find so rewarding, and I realized that companies sometimes have “crunch” times when they must make excessive demands of their staff.

My friend’s husband – I’ll just call him “Simon” – does not work for a struggling start-up, and he doesn’t have the kind of job (like, say, in a law firm) where there is a direct relationship between the hours he works and the amount of money he brings in. He works for a major company in a profitable industry. And while the industry does provide a socially useful function, it isn’t as if he’s about to find a cure for AIDS or devise a way to stop global warming. Simon is good at what he does and well compensated for it. I suppose that if the long hours bothered him that much he might decide to seek work elsewhere.

So while I understand that 12-hour (and longer) days might sometimes be necessary, I find it a bit troubling that a 12-hour day is the expected norm. What will they do when a crunch really does arrive – provide sleeping bags and a catered breakfast so that employees don’t even have to go home? I imagine that Simon’s boss has made his demand in order to establish a certain culture in the company. Any ambitious man or woman a little lower down in the hierarchy need only to consider the hours of the senior people to know what they must do to get ahead.

The boss’s ukase strikes me as bad management for a number of reasons. Demanding that employees put in twelve-hour days is not the same as demanding that they do 12 hours worth of work. The jobs that are affected are knowledge-based, requiring creativity and advanced problem-solving skills. It is not the sort of work that you can do effectively for long hours many days at a stretch. This means that some of those compelled to put in a 12-hour day are doing their usual seven or eight hours of work and stretching it out to take up 12 hours. What a waste of time and human potential! It probably also means that some of the twelve hours are taken up by non-productive, time-wasting exercises. I can imagine endless boring and irrelevant meetings and long back-logs of unread emails that one should never have been sent in the first place. When you factor in the stress of long days, resentment at the fact that employees can no longer make time for the gym or other interests, and the added strain on their families, you end up with a pretty unhappy (not to say dysfunctional) workplace.

It is puzzling to me that a company would hire people they believe to be smart and capable, and then treat them like coal miners who must spend a certain number of hours chipping away underground. Let’s set aside the question of whether this amounts to bad management. Are such demands unethical? There are reasons to think so. The company Simon works for is in an industry in which there is a certain amount of hand-wringing at the under-representation of women. I’m willing to bet that every major company in the industry has a policy to address this concern. Insisting that employees regularly spend twelve hours at the office if they want to get ahead is especially hard on women, who often have non-negotiable family obligations. A corporate culture of overwork is just one more barrier to their success.