The Committee confirmed that Mr B’s behaviour was in breach of rules 10, 10.1, 10.2 and 10.3(e) of the Lawyers and Conveyancers (Lawyers: Conduct and Client Care) Rules 2008 (RCCC). No further penalty was imposed in recognition of Mr B’s engagement with the process. The Committee considered this case provided a valuable opportunity to offer assurance that certain behaviours will consistently be deemed as unsatisfactory by lawyers of good standing.  

Background 

Ms A and Mr B were former colleagues, and both were members of a social media group chat including a number of other lawyers.  

Mr B made a comment of a sexualised and derogatory nature, attempting at humour, about a photo of Ms A.  

Other members of the group chat responded, calling out the comment as inappropriate. Mr B commented again, profusely apologising and acknowledging that what he said was wrong. He repeated his apology directly to Ms A shortly afterwards.  

Issue 

Another member of the group chat, Ms C, reported Mr B’s behaviour, outlining that his comment was inappropriate and commenting that Ms A was open to resolving the issue through mediation.  

The Committee considered whether Mr B’s comment breached his duties to: 

• promote and maintain professional standards under rule 10,
• treat all persons with respect and courtesy when acting in a professional capacity under rule 10.1,
• not engage in conduct that tends to bring to profession into disrepute under rule 10.2, and
• not engage in conduct that amounts to sexual harassment under rule 10.3(e) of the RCCC.  

Response from Ms A 

Ms A’s primary concern was that Mr B’s comment could be misinterpreted to mean that they had a sexual relationship. She was worried about this incident spreading misinformation and frustrated that she was not in a position to diffuse any potential rumours. She was concerned about the impact this might have on her professionally. 

She believed Mr B’s apology was sincere and that he had made a “stupid mistake,” but noted that his comment affected many aspects of her life.  

Response from Mr B 

Mr B expressed that he was ashamed and embarrassed by his conduct and was taking the matter very seriously. He confirmed that he was willing to attend mediation and cover the cost of doing so.  

He explained that he had publicly and privately apologised to Ms A for his conduct and had immediately engaged with a psychologist and his professional supervisor to ensure the behaviour was not repeated. By way of explanation, and not as an excuse, he described that he was under considerable pressure both at work and personally.  

He was open to meeting with Ms A and Ms C to attempt to relieve the harm his conduct caused. He was motivated to address his conduct and assure that it would never be repeated.

Direction to explore addressing complaint through mediation 

The Committee directed the parties to mediation where the complaint was ultimately resolved.  

Ms A explained the significant consequences she faced after reading the group chat. Mr B fully accepted this and apologised again, outlining the remedial actions he had taken. Both Ms A and Mr B accepted that his comment amounted to unsatisfactory conduct and reparation was made in recognition of the harm suffered by Ms A. 

Both parties agreed that publication without a further finding of unsatisfactory conduct from the Committee would publicly decry the conduct and encourage other practitioners to come forward with complaints.  

A finding of unsatisfactory conduct 

While mindful that the parties involved would support a decision of no further action, the Committee made its own consideration of whether a disciplinary response was required.

The Committee considered that not supporting the view of the parties with its own finding of unsatisfactory conduct would send a concerning message to all involved. It did not wish to undermine the parties’ experience or diminish the confidence that this type of conduct is taken seriously by the profession. 

It acknowledged that other members of the group chat immediately recognised the inappropriateness of the comment and the Committee fully appreciated why it would cause Ms A a level of embarrassment that continued for some time. The Committee confirmed that, in sending his message to the group chat, Mr B breached rules 10, 10.1, 10.2 and 10.3(e) of the RCCC. 

The Committee could not point to any information to support the use of its discretion not to make a liability finding and confirmed that Mr B’s breaches of the RCCC constituted unsatisfactory conduct.  

Penalty 

The Committee recognised Mr B’s engagement with the complaints process and his immediate acknowledgement that his conduct was inappropriate. Ms A indicated that the mediation was a positive experience and Ms C commended Mr B’s approach to the matter.  

All parties accepted that this was an “out of character” comment for Mr B to have made. The Committee noted that Mr B demonstrated a level of insight into his behaviour that is not always seen by those subject to a complaint.  

The Committee considered the financial options before it, which included the option to direct compensation or a fine. It was conscious that a compensation award would require a calculation of identifiable monetary loss that was not possible in this case. In terms of a fine, it agreed that this would send a strong message to the profession but considered that this had already been achieved by the agreement reached in the mediation and the Committee’s associated finding of unsatisfactory conduct. It also considered that the liability finding had the same effect as a formal censure.  

The Committee determined that no penalty orders were necessary but cautioned Mr B that any instances of similar conduct in the future would be dealt with extremely seriously.  

The Committee had no difficulty in agreeing with the parties that this case has significant educational value. It considered publication would demonstrate the case-by-case approach the Committee takes in determining how to address matters of this type, while remaining fully informed by all mitigating factors and views of the parties to ensure they have felt heard.