New Zealand Law Society - Senior lawyers should recognise power imbalances when socialising with junior colleagues
A Standards Committee (Committee) determined that Mr B, a senior lawyer, engaged in unsatisfactory conduct by inappropriately touching two lawyers more junior than him while dancing after a team function. The Committee concluded Mr B’s conduct was unprofessional and would be regarded by lawyers of good standing as being unacceptable. The Committee considered his behaviour was at the low to middle range of unsatisfactory conduct. Taking into account mitigating factors, including his responsible and remorseful approach, he was censured and fined $1,000. The Committee emphasised that it is important for senior lawyers to recognise power imbalances in social interactions with more junior colleagues.
Background
Mr B and his team of more junior lawyers celebrated the end of year with an afternoon team function. Afterwards, they continued socialising into the evening, going to several bars. This culminated in Mr B and three junior lawyers, including Ms C and Ms D, dancing together as a group.
Ms C subsequently made a complaint to the firm that Mr B touched her and Ms D inappropriately. The firm appointed an investigator who provided a report (Investigation Report). The firm subsequently filed a confidential report to the New Zealand Law Society Te Kāhui Ture o Aotearoa. Mr B accepted the findings of the Investigation Report, self-reported his conduct to the Law Society and retired from the partnership.
The Investigation Report recorded that Ms C said that Mr B put his hand on her bottom and lower back while they were on the dance floor. She felt that the touching was intentional. She also said that he put his hand on her upper or lower back. Mr B did not recall touching Ms C’s bottom but remembered touching her lower back while they danced. Separately, Ms D said that Mr B touched her lower back while on the dance floor.
The investigator concluded that the touching was not intentional or intended to be sexual or inappropriate. The investigator considered it was likely that Mr B’s hand had slipped. The lack of movement, together with the light to medium pressure of the touch indicated that the contact was accidental or a result from the way the group was dancing. However, the investigator found that the behaviour breached the firm’s sexual harassment policy as the behaviour was unwelcome and had a detrimental effect on the individuals involved.
The matter was referred to the Committee and it resolved to commence an own motion investigation. It ultimately conducted a hearing on the papers at which it considered whether Mr B had breached his obligations under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules (RCCC) and whether his behaviour amounted to unsatisfactory conduct under s 12(b) or (c) of the Lawyers and Conveyancers Act 2006 (LCA) or misconduct pursuant to s 7(1)(a) or (b) of the LCA.
The first issue for the Committee was whether the alleged conduct was, to use the shorthand colloquial terms, in the ‘professional’ or ‘personal’ context. The definitions of both unsatisfactory conduct (s 12) and misconduct (s 7) have differing thresholds depending on which category the conduct falls into. The Committee carefully considered the precise wording of the definitions. It noted that a “key distinction” between the two categories was that misconduct under s 7(1)(a) and unsatisfactory conduct under s 12(b) (essentially, ‘professional conduct’) related to conduct that occurred when the lawyer was providing regulated services, while this is not required for a finding under ss 7(1)(b) or 12(c) (essentially, ‘personal conduct’).
While Mr B readily accepted that his conduct occurred during the provision of regulated services, the Committee also made its own assessment. In doing so, it considered relevant Disciplinary Tribunal and Court decisions relating to conduct at work social functions. It considered a “closer comparison” was found in a recently published summary of a Standards Committee decision, where conduct in the context of “ongoing socialising” after a firm event was found to fall under the ‘professional conduct’ category of s 12(b).1 The Committee considered the same conclusion could be made in this case. The group were socialising because of their employment at the firm and they would not have been there but for the planned team function that happened earlier. The Committee also considered the meaning of ‘incidental to’ as included in the definition of ‘legal work’ and applied it to this case.2 It concluded the conduct “occurred in the context of a continuation of the planned firm function, and so, was professional in nature”.
Mr B accepted that his conduct breached rule 10 (professional standards), rule 10.1 (respect and courtesy) and rule 10.2 (conduct that tends to bring the profession into disrepute) of the RCCC. The Committee agreed and considered it unnecessary to further traverse the application of those rules. However, the issue of sexual harassment required further examination. While Mr B accepted his conduct was otherwise inappropriate, he did not accept it was sexual. He submitted he had therefore not breached rule 10.3(e).
The Committee assessed the conduct against the definition of sexual harassment under the RCCC, which 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 each limb of that definition.
It found that, in the context of the power imbalance, the behaviour was unreasonable. Further, it noted that the Investigation Report recorded that Ms C and Ms D both found the touching to be unwelcome. Finally, as to whether the touching was of a sexual nature, the Committee considered that each instance of touching should be assessed individually.
Having done so, the Committee concluded there was insufficient evidence that the conduct was sexual in nature. While noting that “deliberately touching a woman on the bottom is inherently sexual in nature”, it accepted that such touching was unintentional in this case.
Accordingly, while acknowledging that the conduct was unwelcome and/or offensive to Ms C and Ms D and was inappropriate, the Committee concluded sexual harassment (as defined in the RCCC, which may differ from the firm’s policy) was not established on the balance of probabilities.
Having established that Mr B had breached rules 10, 10.1 and 10.2 of the RCCC, the Committee then considered the gravity of the conduct.
Mr B accepted that his behaviour amounted to unsatisfactory conduct but submitted that it did not warrant referral to the Tribunal for consideration of potential misconduct. In assessing this, the Committee referred to case law and found that Mr B’s conduct was “far from the severity of misconduct” in those other cases.3 While acknowledging that Mr B’s behaviour was inappropriate and had negatively impacted Ms C and Ms D, the Committee concluded it did not warrant referral to the Tribunal.
However, the Committee agreed Mr B had engaged in unsatisfactory conduct. While noting the specific rule breaches (which could result in a finding under s 12(c)), the Committee considered a finding under s 12(b)(ii) was most apt. That is, Mr B’s conduct “would be regarded by lawyers of good standing as being unacceptable” and was “unprofessional”.
“The Committee considers inappropriate conduct by senior lawyers in similar contexts is unfortunately commonplace and a long-established issue in the profession. In order to eradicate such behaviour from the profession, it is incumbent on lawyers in senior positions to be mindful of the appropriateness of their interactions with colleagues junior to them and how they may be perceived even in what feels to be a friendly group context. As a senior member of the Firm, [Mr B] should have been live to this issue and avoided the situation where the established touching could occur. In his own acknowledgement, he should not have been out with the junior team and should have gone home.”
The Committee added that inappropriate conduct within the profession is unlikely to improve without individuals, such as Ms C and Ms D being willing to raise their concerns. It acknowledged that that doing so can be difficult. Although, a finding of sexual harassment was not made in this case, the Committee added that this should not minimise Ms C and Ms D’s experiences. It hoped that Ms C and Ms D feel that their concerns have been taken seriously and addressed appropriately.
In determining the penalty, the Committee considered Mr B’s behaviour was in the low to middle range for unsatisfactory conduct, which may have warranted a fine around $3,000 to $4,000. However, it accepted several mitigating factors including Mr B’s responsible conduct during the investigation and standards committee process, his early acceptance of unsatisfactory conduct, his significant financial loss through his retirement from the firm and that he had taken steps to address his relationship with alcohol. Taking these into account, the Committee censured Mr B and ordered him to pay a fine of $1,000.
The Committee directed that an anonymous summary be published. It “…considered that this case presents an opportunity for education to the profession in the evolving areas of professional boundaries and, importantly, how these must be strictly managed when socialising in the context of firm functions. In this case [Mr B] was not mindful of the ongoing and continual power imbalance present between himself and junior colleagues, even while socialising after a professional function, and should not have put himself in a situation where he was physically touching those colleagues repeatedly, whether accidentally or intentionally, particularly on areas of the body that others may consider inappropriate.”
1 “Maintaining professional boundaries remains important for lawyers, including in the context of social team functions” (9 July 2025) New Zealand Law Society Te Kāhui Ture o Aotearoa https://www.lawsociety.org.nz/lawyers-complaints-service/decisions/standards-committee-decisions/2025/maintaining-professional-boundaries-remains-important-for-lawyers-including-in-the-context-of-social-team-functions/?_gl=1%2A12q7vwj%2A_up%2AMQ..%2A_gs%2AMQ..&gclid=EAIaIQobChMIr9WF5a6HkwMVS6dmAh16oDiQEAAYASAAEgL71_D_BwE&gbraid=0AAAAADRZiggPDdNvpONpFmY93P8yFRUQx
2 Referring to ZKA v National Standards Committee [2017] NZHC 2318 at [97].
3 National Standards Committee (No 1) v Palmer [2022] NZLCDT 42; National Standards Committee (No 2) v Q [2023] NZLCDT 14; National Standards Committee No 1 v Gardner-Hopkins [2021] LCDT 21; National Standards Committee (No 2) v Mulligan [2025] NZLCDT 18