The Committee emphasised that the RCCC are also applicable to non-lawyer employees, who can be subject to the disciplinary process, and that the Act explicitly allows Standards Committees to consider the conduct of any employee of a law firm, not just those who are lawyers. 

The Committee findings also underlined that racist comments made about colleagues are inappropriate and unprofessional.  

Background 

Ms C and Ms D were both non-lawyer employees at the same firm. A number of  exchanges via the law firm’s email between Ms C and Ms D were identified by a third party, containing comments made about people’s race, religion and appearance. This was reported to the firm and, following an internal disciplinary meeting, Ms C and Ms D resigned from their roles. The matter was reported by the firm as a designated lawyer report to the New Zealand Law Society Te Kāhui Ture o Aotearoa.

Use of racial slur 

The committee identified three exchanges that contained the most concerning remarks. These were exchanged between Ms C and Ms D from their work email addresses during work hours. They were prompted by their interactions with and observations of colleagues in the course of the workday and also related to an announcement from law firm management.  

The Committee considered that the primary function of the firm was to carry out regulated services for clients. The Committee said that in this case:  

“Email communication between members of the firm (by both lawyers and non-lawyers) during work hours occurred in subordinate conjunction to the legal work being carried out for clients and therefore is properly categorised as incidental to legal work. This means that the [non-employees’] conduct, if it was conduct of a lawyer, would have occurred while providing regulated services and could be the subject of a finding under s 12(b).”  

Having established this, the Committee turned to assess the seriousness of the conduct. 

In the emails, Ms C and Ms D were discussing one of their colleagues, referring to this colleague using a derogatory nickname. The Committee had no doubt that the term used to describe their colleague was a racial slur. In the context of the emails specifically, it was being used to reinforce a negative view of their colleague due to the colour of their skin. The Committee noted that the phrase was used to describe their colleague in multiple email exchanges, which suggested that the language formed a wider context of contempt.  

The Committee considered freedom of speech arguments. In the Committee’s view, the language was accurately characterised as a racial slur, deliberately chosen to reinforce a negative view about a person in the workplace and in discussions with another colleague. In this context, and when considered against the professional expectations of lawyers, it fell outside the margins of freedom of expression seen in previous cases and is appropriate for consideration and sanction within a disciplinary context.

Outcome 

 The Committee determined that the use of the nickname both by Ms C and Ms D amounted to unsatisfactory conduct and was a breach of rules 10 and 10.3(d) of the RCCC. Rule 10 requires the promotion and maintenance of professional standards and r10.3 prohibits unacceptable conduct including bullying, discrimination and harassment. It appeared to the Committee that both Ms C and Ms D lacked insight into the seriousness of their conduct. There was no evidence of remorse for the way they referred to their colleague. The Committee was also troubled by their limited participation in the process.  

The Committee was mindful that Ms C and Ms D left their roles at the firm and Ms D remained unemployed at the time of the decision. Both submitted that they suffered significant harm from this and the Committee acknowledged this was a considerable consequence of their actions at the firm.  

Since Ms C and Ms D were not lawyers, the Committee considered that the circumstances of the case and the mitigating factors outweighed the need for a penalty order than the formal finding of unsatisfactory conduct. The Committee was assured that their colleague was not aware of the comments made in the emails, limiting the harm caused.  

The Committee determined that publication of this decision would serve as a reminder to the profession that, while interactions may feel personal to those involved, these may still be professional in nature and incidental to the provision of regulated services, particularly when they have occurred in the workplace and can be assessed through a disciplinary lens.   

Unacceptable and inappropriate workplace conduct 

In this case, the Committee wished to make it clear that “racist comments exchanged between colleagues and made about others in their workplace is inappropriate and unprofessional to the extent requiring a disciplinary finding”.