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Published on 8 February 2019
A lawyers standards committee has made a finding of unsatisfactory conduct against a lawyer who sexually harassed two law firm employees at work social functions. The committee’s decision has been published on the Law Society’s website.
While a standards committee has previously made a finding against a lawyer for sexually harassing a lawyer on the other side of a matter, this decision concerning Mr X is the first to tackle sexual harassment in the workplace and the type of unacceptable behaviour that has been broadly publicised in the wake of the #Me Too movement.
As the decision details, one of the barriers in responding to sexual harassment in the legal workplace is that, with limited exceptions, the current disciplinary regime is primarily focused on the protection of consumers of legal services. It does not directly address sexual harassment or a lawyer’s conduct when they are not engaged in providing legal services to a client unless it is sufficiently serious to justify their removal from the profession.
This issue was highlighted in the report of the Regulatory Working Group chaired by Dame Silvia Cartwright. The report was accepted by the Law Society’s Board and its recommended changes to the current disciplinary regime are being progressed by the Law Society.
In the meantime until any changes are implemented, committees must work within the existing framework to address unacceptable conduct.
How did the committee address sexual harassment by Mr X at workplace social functions?
Did Mr X’s behaviour occur at a time when he was providing regulated services?
One of the central issues addressed in the committee’s decision is its jurisdiction to make a disciplinary finding against Mr X in relation to conduct that is not expressly captured by the Lawyers and Conveyancers Act 2006 (LCA). The LCA is predominantly consumer focused and targeted at behaviour that occurs ‘at a time when the lawyer is providing regulated services’ (see sections 7(1)(a), 12(a) and 12(b)).
If a lawyer’s behaviour is unconnected to the provision of regulated services, a strict reading of the LCA suggests it can only be addressed if it would justify a finding that the lawyer is not a fit and proper person or is otherwise unsuited to engage in practice as a lawyer (see section 7(1)(b)(ii)). This distinction is important as if the conduct is unconnected to regulated services, it can typically only be addressed by a misconduct finding imposed by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) – unless it is found to be a breach of a relevant rule or regulation relating to the provision of legal services as per section 12(c) of the LCA.
However, if the conduct is found to have occurred at time when the lawyer is providing regulated services, the ability to address the lawyer’s behaviour under the LCA is broadened and a finding of unsatisfactory conduct (or misconduct) can be imposed if the conduct is adjudged to be either unacceptable, unprofessional, unbecoming, dishonourable, disgraceful or a reckless or wilful breach of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Rules).
In addressing this issue the committee considered a number of High Court and Tribunal cases that have broadened the reach of the LCA when responding to conduct that is considered to be ‘connected’ with the provision of legal services.
The committee applied the reasoning in the High Court decision of Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal  NZHC 1987;  2 NZLR 606 and other cases, in determining that Mr X’s behaviour towards two of his firm’s employees at work organised social functions was not ‘unconnected to being a lawyer’ or ‘clearly outside the work environment’. As a result the committee considered it had a broadened jurisdiction to consider Mr X’s conduct.
It was relevant that Mr X’s behaviour occurred at social events organised by the lawyer’s firm (on the firm’s premises and offsite with transport arranged by the firm) and attended by employees of the firm. All attendees at the functions were present because they worked for a law firm which provided regulated services. It was apparent the work functions were intended to assist the functioning of the law firm by building supportive internal relations, rewarding staff for their efforts, enhancing job satisfaction and staff retention.
Having found the conduct occurred a time when Mr X was providing regulated services, the committee was able to consider whether it amounted to unsatisfactory conduct under s 12(b) of the LCA or misconduct under s 7(1)(a). It decided on the facts of the case that Mr X’s behaviour amounted to conduct which would be regarded by lawyers of good standing as being unacceptable and therefore amounted to unsatisfactory conduct under s 12(b).
Even if Mr X was not providing regulated services, did his behaviour fall foul of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008?
The committee also considered, if its reasoning set out above was incorrect, whether Mr X could be guilty of unsatisfactory conduct for breaching his ethical obligations under the Rules.
In doing so, the committee adopted a broad interpretation of ‘professional dealings’ and ‘lawyer’s dealings’ in Rule 10.
Rule 10 states:
10 A lawyer must promote and maintain proper standards of professionalism in the lawyer’s dealings.
It is well established that standards committees can make a finding of unsatisfactory conduct (s 12(c) of the LCA for a breach of the Rules) if the conduct occurred at a time when the lawyer was not providing regulated services (EA v ABO (LCRO 237/2010) such as a breach of the Rules.
The committee determined that ‘professional dealings’ and ‘lawyer’s dealings’ (in Chapter 10 of the Rules) are not limited to circumstances where the lawyer is providing regulated services. It considered ‘lawyer’s dealings’ are broader than ‘regulated services’ and that Rule 10 can apply in every circumstance in which a lawyer is expected to act with proper standards of professionalism.
The committee considered the scope of Rule 10 extends to the ‘business of law’ and that ‘lawyer’s dealings’ is broad enough to include a lawyer’s dealings with his or her clients, fellow partners or directors, fellow employees, suppliers and others on a range of matters relating to the business of a legal practice, including such things as staff recruitment and training.
The committee ultimately concluded that each of the instances of the lawyer’s conduct amounted to a breach of Rule 10, being a failure to promote and maintain proper standards of professionalism in the lawyer’s dealings as a lawyer. It also determined, in relation to one of the incidents, the lawyer’s conduct amounted to a further breach of the rule for failing to treat another lawyer with respect and courtesy.
The committee’s determination
The committee unanimously determined that Mr X’s conduct amounted to unsatisfactory conduct. However, it was divided on the reasons for its determination.
Because of a number of mitigating factors the committee did not consider that a charge of misconduct before the Tribunal was justified. Mr X had taken full responsibility for his actions, including promptly resigning from the firm at which he was a partner at the time of the conduct. He had not disputed the alleged conduct before the committee. He had shown significant contrition and remorse. He had taken – and was taking – a number of positive steps to ensure there was no repeat of the behaviour. This included seeking treatment from a mental health specialist. The two employees concerned had indicated they were satisfied with the way the firm dealt with the matter internally. Mr X had no prior disciplinary history with the Law Society.
The committee ordered that Mr X be censured for his unsatisfactory conduct and imposed a fine of $12,500. Being over 80% of the statutory maximum of $15,000, the fine reflected the seriousness of Mr X’s conduct. He was also ordered to pay costs of $2,500.
What guidance can be taken from the decision?
The committee’s interpretation and reasoning in relation to ‘conduct that occurs at a time when the lawyer is providing regulated services’ and its application of Rules 10 and 10.1 has clarified the breadth of what might be considered unsatisfactory conduct and misconduct under the LCA.
This means that for lawyers, this decision could assist in clarifying their reporting obligations under Rules 2.8 and 2.9. Rule 2.8 provides that if a lawyer has reasonable grounds to suspect another lawyer has been guilty of misconduct they must make a confidential report to the Law Society. Support and guidance on whether and when lawyers are required to report a lawyer’s conduct can be found in the Bullying and Harassment in the legal profession section of the Law Society’s website.
This decision makes it clear that there can be disciplinary consequences for lawyers who engage in unacceptable behaviour, such as sexual harassment, in the workplace.
Anyone who has been harmed by or is concerned about such conduct in a legal workplace can call Law Care 0800 0800 28 or go to the Law Society website section for support and guidance.