New Zealand Law Society - Lawyers should maintain appropriate professional boundaries with colleagues at all times

Lawyers should maintain appropriate professional boundaries with colleagues at all times

A Standards Committee (Committee) determined that a senior lawyer’s inappropriate comments made to a junior member of staff about her physical appearance during a telephone conversation breached rule 10 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (rules) and that this amounted to unsatisfactory conduct. The Committee determined that, in the circumstances of the case, a finding of unsatisfactory conduct was sufficient to address the matter and that no further penalty was required.

Following receipt of the complaint, the Committee resolved to inquire into the matter and appointed an investigator to investigate the concern raised.

The investigation report concluded that it was more likely than not that the telephone conversation did take place and that the lawyer made some comments about the complainant’s physical appearance, which he regarded as complimentary and appropriate, but were not in fact received that way by the recipient. While the lawyer accepted that from time to time, he made platonic, complimentary comments about staff members’ appearance, he asserted that these never crossed the line into sexualised or inappropriate remarks. He also disputed that any telephone call took place at all or that he made the comments alleged.

The Committee was satisfied that the investigation findings struck a balance which substantiated that it was likely the call took place and comments were made by the lawyer that colleague regarded as inappropriate. The Committee did not seek to go behind this assessment to make a finding any specific language used or to ascribe any inappropriate intent to the lawyer.

However, the Committee was nevertheless troubled by the context in which the comments were made. It considered it unlikely for there to be a reasonable instance where it would be appropriate for a senior practitioner to comment on a colleague’s physical appearance during a telephone conversation. While the Committee took account of the lawyer’s examples of the types of comments he might make from time to time, it considered these types of comments might more readily arise when the physical feature that was the focus of the comment was noticeable in person, but otherwise would be notably lacking in the context of a telephone conversation.

The Committee acknowledged that on a general view, the lawyer thought such comments were acceptable, but its view was that it is incumbent on any lawyer, particularly one that is senior in the workplace, to be mindful of the appropriateness of their interactions with colleagues and how they may be perceived.

The Committee considered, on balance, that the lawyer’s behaviour breached rule 10 by failing to maintain proper professional boundaries, and rule 10.1 by failing to treat his colleague with respect and courtesy and amounted to unsatisfactory conduct. In assessing the seriousness of any breach of professional boundaries, the Committee was conscious of the lawyer’s position and the inherent imbalance of power between him and his colleague.

In assessing penalty, the Committee considered that the complaint and investigation proved a salutary experience for the lawyer, which led to some definite reflection on the nature of his interactions with others, professional boundaries, and responsibilities in a leadership role. The Committee was encouraged by the steps taken by the lawyer to undergo training and amend his behaviour in the workplace.

The Committee considered the severity of the conduct sat at the lower end of the spectrum for similar behaviour found in previous cases and determined that the finding of unsatisfactory conduct itself was sufficient to address the matter and that no further penalty was required.

The Committee considered that although the conduct resulted in no penalty, it wished to remind lawyers of the importance of respectful communications at all times and to be mindful of the appropriateness of maintaining professional boundaries in interactions with colleagues.

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