The New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) has suspended a lawyer, referred to as Mr Q, for 20 months for three assaults on two staff members (referred to as Victim A and Victim B), which all occurred in taxis following work events.
The Tribunal determined that each incident constituted misconduct and would be regarded by lawyers of good standing as disgraceful or dishonourable. In addition to the suspension, the Tribunal censured Mr Q and ordered him to pay $10,000 in emotional harm compensation to one of the victims. The Tribunal declined to grant Mr Q permanent name suppression but extended his interim name suppression order to preserve his appeal rights.
Mr Q was a partner at the law firm that employed Victim A and Victim B and had worked with both for a number of years. The first assault was against Victim A in 2018 and involved Mr Q attempting to put his hands between her thighs. Sixteen months later in 2019, Mr Q was in a taxi with both Victim A and Victim B when he assaulted Victim A by placing his arms around her shoulders and sliding his hand down to her buttocks. Victim A responded by saying “fuck off and stop touching me” and asked to be dropped off first, leaving Mr Q alone with Victim B. Mr Q then started placing his feet and legs on Victim B, finally getting on his knees in front of her, and began to push her knees apart. She resisted and asked “what the fuck are you doing”. His response was “I’m going to give you the best orgasm of your life”. She told him there was no way that would happen. Mr Q then sat next to Victim B, with his thighs touching hers, and made a number of sexualised remarks such as “giving the taxi driver a show” while he motioned touching her breasts.
Mr Q accepted the conduct in relation to Victim B amounted to misconduct, but did not accept his conduct reached that level in relation to Victim A. The Tribunal disagreed. It found that lawyers of good standing would regard Mr Q’s attempt to put his hands between Victim A’s thighs as disgraceful or dishonourable, noting that, on that occasion, they were alone (apart from the taxi driver), Victim A was trapped in an enclosed space, it was opportunistic, there was no suggestion his actions would be welcomed, and it was “an awful breach of trust”. The Tribunal held the second assault on Victim A must be understood by reference to the first, noting that Ms A’s immediate reaction showed that she saw the second incident as an extension of the first. The Tribunal noted that Victim A was relatively unwilling to participate in the disciplinary proceedings and did not support any adverse outcome for Mr Q, but that “our professional disciplinary process is itself very different from the personal processes through which victims must variously go, often in different paths, to move on in their own lives”.
In assessing penalty, the Tribunal noted it was focussed on the “quality and the import of the conduct”. It assessed Mr Q’s conduct as “offensive, invasive and demeaning” and that each incident involved a breach of trust. While Mr Q’s counsel submitted he was friends with both victims, the Tribunal accepted that the operative relationship was that of employer-employee and the victims were in a “structurally subservient position”. Mr Q had repeated his conduct with Victim A despite her objections on the first occasion and his assault on Victim B had had “a profound impact”. After considering relevant case law, the Tribunal held that a starting point of two and a half years suspension was appropriate. It noted that “guarding the ongoing reputation of the profession is an important purpose of suspension in a case like this”, as was deterrence of other practitioners and that the suspension would allow Mr Q time to reconsider his behaviour and undertake training or therapy.
The Tribunal gave Mr Q “considerable credit” for his 40-year unblemished record as a lawyer, his conduct as an employer (other than in relation to the charges outlined above) and for accepting the facts as stated by the victims (which avoided the need for them to be cross-examined). Mr Q said that he drank heavily to mask feelings of social anxiety, but the Tribunal noted he had not made his partners aware of this issue, there had been no medical evidence provided and thus it should not be treated as a mitigating factor. The Tribunal also declined to treat Mr Q’s nine months away from practice as a mitigating factor, noting this occurred after Victim B informed the firm of Mr Q’s conduct and he was excluded from the partnership and thus the time away from practice was “a natural consequence of his conduct”. Having considered these factors, the Tribunal reduced the starting point by a third, which resulted in a suspension of 20 months.
In addition to suspension, the Tribunal censured Mr Q and ordered him to pay emotional harm compensation to Victim B in the sum of $10,000. Mr Q was also ordered to pay costs.
Mr Q sought permanent name suppression to protect the privacy of the victims, avoid embarrassment to his family, and to himself and those who work with him. The Tribunal found those interests did not outweigh the public interest and “it was healthier for the legal profession generally that matters liked this are aired, to avoid any perception that, in addition to their many other privileges, lawyers can escape detection or identification for egregious wrongdoing”. It commented that “to have it out in the open encourages other practitioners to behave in ways that they are prepared to own publicly”.
The Tribunal however extended interim name suppression for Mr Q and his location of work and residence until 30 May 2023 to preserve his appeal rights. The identities of the victims, and the names of the firms where Mr Q previously worked (at the time of the conduct) and is currently employed, are permanently suppressed.