New Zealand Law Society - Intoxicated Partner sending text messages to employee late at night which ‘contained a sexual connotation’, found to be unsatisfactory conduct

Intoxicated Partner sending text messages to employee late at night which ‘contained a sexual connotation’, found to be unsatisfactory conduct

A lawyer, after drinking heavily, sent multiple text messages with an ‘inappropriate sexual tone’ and made at least 16 accompanying call attempts to an employee of the firm where they are a Partner late at night. A Standards Committee (Committee) determined that this was unsatisfactory conduct, and ordered them to pay a fine and costs.

Text messages were exchanged between the lawyer and a legal executive (the employee), and accompanied by at least 16 attempts by the lawyer to call the employee. The text messages and call attempts began at approximately 11:30pm at night and continued until shortly before 1:00am the following morning. The text messages included the suggestion that the lawyer was outside the employee’s residence.

The lawyer had been drinking heavily after attending a sporting event with a number of their clients, and a joke was made about calling their secretaries to give them rides home. The lawyer states it was this remark that appeared to have initiated the contact with the employee.

The matter was reported to the New Zealand Law Society Te Kāhui Ture o Aotearoa (Law Society) by the lawyer’s co-Partners, in their personal capacities under rr 2.8 and/or 2.9 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.

Due to their level of intoxication, the lawyer has no memory of the text messages or attempted phone calls. There was also no record of the messages on the lawyer’s phone (they believe they must have deleted them) and the Committee therefore sourced these from the firm. The lawyer did not dispute that the text messages and calls occurred but did dispute that the messages were of a sexual nature.

In assessing the lawyer’s behaviour, the Committee decided that this conduct was sufficiently connected to the provision of regulated services, as it occurred out of the lawyer entertaining work clients and discussing with them ringing their secretaries for rides home, and the phone calls and text messages were to an employee of the firm.

It is the Committee’s view that the text messages included an inappropriate sexual tone, as evidenced by the lawyer’s comments that they would “cum up” to the employee’s home, by the lawyer asking the employee “Shall I come up?”, and then saying “Not a chance you are” when the employee said they were trying to sleep. The lawyer also answered “Really?” to the employee explaining that they were in bed, to which the lawyer replied “R u ready” when the employee said “Yes”. When viewed in the context of repeated accompanying phone calls late at night, the Committee is clear that these messages contained a sexual connotation.

The Committee was of the view that the incident was exacerbated by the fact that lawyer was a Partner of the firm and that there was a very obvious power imbalance between them. The lawyer should have appreciated that this power imbalance meant that the employee could be vulnerable and feel pressured by such interactions between them.

The Committee considered that the discussion the lawyer had with clients about “calling their secretaries” was itself troublesome and reflected an attitude towards junior (likely female) staff that the lawyer should reflect on in regards to the importance of treating colleagues with respect and courtesy.

The Committee determined that the lawyer had engaged in unsatisfactory conduct as defined by s 12(b) of the Lawyer and Conveyancers Act 2006, being conduct that occurred when they were providing regulated services and being conduct that would be regarded by lawyers of good standing as unacceptable, including conduct unbecoming a lawyer and that was unprofessional. In terms of penalty, the lawyer was ordered to pay a fine of $5,000.00 plus costs.

The Committee considers that the publication of a summary of this matter will serve as a reminder that a lawyer’s behaviour is under scrutiny at all times (not only when they are in a professional setting such as the office) and that such communications are not acceptable.

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