Background 

Mr B attended a professional function where it was alleged by a junior lawyer, Ms C, that he participated in a series of inappropriate behaviours over the course of the evening. The Committee appointed an Investigator to assess the complaint. 

Ms C described Mr B as saying “wow” to her as she walked past. Ms C noted that she took it as a compliment but thought it was a little unusual. She alleged that, later in the evening, Mr B pointed at her and two other female lawyers saying something along the lines of “I like you, I like you,” and then pointed at Ms C, repeating his comment of “wow.” Ms C reflected that the comments were “a bit weird” but acknowledged that everyone was “a little bit tipsy.” Mr B conceded that he was not in a position to question Ms C’s account of the evening but confirmed that he was not intending to “hit on” her. He accepted that this is how she perceived his actions. 

At another time during the function, Mr B and Ms C were alone outside. Ms C described that she was drinking out of a wine bottle as she did not have a glass. She recalled Mr B making a comment similar to: “I thought you were cool before, but I like you even more now.” Mr B did not recall this incident but accepts that he repeated his comment of liking Ms C after she drank from the bottle. He acknowledged that this was “consistent with embarrassing university behaviour / praising drinking straight from the bottle.”  

Ms C also complained about Mr B’s level of intoxication at the professional function.  

Mr B’s response 

Mr B denied having intent to make anyone uncomfortable and regretted that this occurred, adding that the reported comments were “completely out of character” for him. He noted that he has remained alcohol free since the function and intends to continue this indefinitely.

Mr B accepted that the allegations at the professional function constituted unsatisfactory conduct and expressed his wish to make a full apology to Ms C at the appropriate time. A written apology was provided to the Committee to give to Ms C when it considered fit.  

Mr B did not accept that he was acting in a professional capacity while at the professional function and argued that rule 10.1 of the RCCC did not apply.  

Did the conduct amount to sexual harassment? 

The Committee considered whether the allegations would constitute sexual harassment in contravention of rule 10.3(e) of the RCCC, which defines sexual harassment as “subjecting another person to unreasonable behaviour of a sexual nature that is likely to be unwelcome or offensive to that person (whether or not it was conveyed directly to that person).”  

In relation to Mr B’s comments, the Committee concluded that, while they were not explicitly sexual, they were unwelcome. Mr B accepted that the words he spoke could, in the context, be capable of constituting sexual harassment. The Committee took the view that any lawyer should have an expectation of safety at a professional event. The Committee noted that Ms C felt that she was being “hit on” and could have reasonably viewed the interaction as sexual in nature. The repetition of the comments throughout the evening increased the Committee’s concern. It was deemed that Mr B’s comments constituted sexual harassment under rule 10.3(e) of the RCCC. 

Treating others with respect and courtesy  

The Committee considered whether Mr B had treated others with respect and courtesy, pursuant to rule 10.1 of the RCCC. While Mr B argued that he was not acting in a professional capacity, the Committee took the view that it was evident all attendees at the function were present due to their role within the legal profession which was not unconnected with the provision of legal services. His behaviour was clearly within a professional context at a networking event.  

The Committee did not consider it necessary to make another finding in relation to rule 10.1 of the RCCC, as it had already made a finding of sexual harassment, which more accurately depicted Mr B’s conduct. 

Intoxication 

The Committee noted that Mr B’s intoxication was a factor throughout all allegations and accepted that the extent of his intoxication tended to bring the profession into disrepute. This was a breach of rule 10.2 of the RCCC.  

Promoting and maintaining professional standards 

The Committee found Mr B’s behaviour at the professional function to be unprofessional and included conduct capable of bringing the profession into disrepute. It noted further that this represented a failure to promote and maintain proper professional standards and amounted to a breach of rule 10 of the RCCC.  

Determination 

The Committee determined that Mr B’s breaches of rules 10, 10.2 and 10.3(e) amounted to unsatisfactory conduct pursuant to s12(c) of the Act. The Committee was satisfied that the allegations did not meet the threshold for potential misconduct. 

Penalty  

The Committee took into account a number of mitigating factors, such as Mr B promptly apologising to staff from his firm and other lawyers he had seen at the event. The Committee was reassured that Mr B had taken the matter seriously and that his regret was genuine.  

The Committee accepted that Mr B’s conduct was a one-off incident but also acknowledged that it did comprise of multiple incidents in breach of three different rules. It considered a censure, fine of $5,000 and costs of $1,000 to be an appropriate penalty.  

Mr B already prepared an apology letter, which the Committee deemed fit for purpose and confirmed would be provided to Ms C. The Committee trusted that the investigation process had been a salutary experience for Mr B and noted that he had already reflected on his relationship with alcohol. The Committee ordered publication of this decision to assist with the ongoing education of the profession and to remind lawyers of their obligation to maintain professional standards in this area.