Background 

Ms K and Ms B were both non-lawyer employees in the same law firm. Ms B complained to the law firm that Ms K had touched her breast on multiple occasions. An employment investigation was completed. The firm reported the matter via a designated lawyer report to the New Zealand Law Society Te Kāhui Ture o Aotearoa.  

Ms B said that the first incident happened when she and Ms K passed each other in the office. Ms K put her hand out and touched Ms B’s breast in a downward motion. Ms K laughed and said someone else had done the same thing to her. Ms B told Ms K that she did not like that physical contact. Sometime later, Ms K touched Ms B again. As they passed each other in the office, Ms K put her hand out and touched Ms B’s breast in a downward motion and then again with the back of her hand in a sideways motion. Ms B pushed Ms K away and told her to stop it.  

During the employment investigation, other employees reported similar touching. One employee said that it was a joke between her and Ms K and did not mind the touching. Ms K did not deny touching Ms B, but she said it was intended to be funny. She did not recall Ms B telling her that she did not like it but realised it was unwelcome when Ms B complained. 

The Committee opened its own investigation and assessed whether Ms K’s behaviour was related to the provision of regulated services and whether she had breached her obligations under the RCCC.  

Conduct connected to the provision of regulated services  

The Committee found that Ms K’s conduct related to the provision of regulated services because the behaviour occurred in the workplace. It also arose from Ms K and Ms B’s roles supporting the provision of regulated services to clients by lawyers at the firm.  

Treating everyone with respect and courtesy  

The Committee said conduct of this kind was clearly inconsistent with the obligation to treat colleagues with respect and courtesy. The Committee had no difficulty finding that Ms K’s behaviour breached rules 10 and 10.1 of the RCCC. It found that any case involving physical contact like this, particularly when repeated towards any person, is a clear failure of the requirement to treat colleagues with respect and courtesy. 

Sexual harassment 

The Committee found that Ms K’s behaviour amounted to sexual harassment and breached rule 10.3(e) of the RCCC. It noted that the RCCC definition of sexual harassment includes ‘…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) …’ The Committee considered that there was clear evidence that Ms K had touched Ms B’s breast on several occasions and that Ms B had told her to stop, and that this conduct amounted to sexual harassment.  

Ms K told the Committee that she never meant to upset Ms B. She realised that she had overstepped a boundary in their friendship.  

Penalty  

The Committee determined that Ms K’s conduct was unsatisfactory and ordered a censure. The Committee highlighted Ms K’s position as a non-lawyer in a law firm and considered her conduct under s 14 of the Lawyers and Conveyancers Act 2006. It found that if a lawyer had conducted themselves in the same way, then it would be unsatisfactory conduct as it would be regarded by lawyers of good standing as unbecoming of a lawyer. In considering a further penalty, the Committee acknowledged Ms K’s personal and financial position. It added that the process had proceeded smoothly with little additional investigation required. On that basis, no further penalty orders were imposed.  

The Committee directed that a summary of the case is published for its educative value. It reminded the legal industry that the rules of professional conduct apply to practising lawyers and also all other employees of lawyers or incorporated law firm. In addition, the Committee emphasised the importance of the disciplinary process to address inappropriate physical behaviour and breaches of professional boundaries.