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Law Society not seeking review of unsatisfactory conduct finding

12 February 2019

The New Zealand Law Society is not seeking a review of a finding by a lawyers standards committee that a lawyer was guilty of unsatisfactory conduct after he sexually harassed two of his law firm’s employees. The decision was published recently.

The Law Society has stated its position in response to comments by some lawyers who have disagreed with the finding and the penalties imposed and are asking why the Law Society is not seeking a review of the decision.

“This is the first finding made by a standards committee on matters relating to sexual harassment at law firm social events. The reasoning process which the committee had to follow is a good example of why we need legislative reform in this area,” Law Society President Kathryn Beck says.

“Under the legislation a standards committee can only make findings of unsatisfactory conduct. Only the New Zealand Lawyers and Conveyancers Disciplinary Tribunal can make a finding of misconduct.

Ms Beck says that when a complaint is received it is put before a standards committee. If a committee believes there are grounds to support a finding of misconduct against a legal practitioner it may decide to refer the matter to the Disciplinary Tribunal to make that finding.  

While there is no threshold for referral, standards committees often refer matters to the Tribunal when the conduct warrants strike off or suspension. While proceedings in the Tribunal are generally held in public, name suppression may be ordered where there is a likelihood of complainants being identified.

“Like all standards committees, the committee which considered this matter is independent of the Law Society in its deliberations and decisions. Standards committees are made up of experienced lawyers and non-lawyers who are dedicated to the work they do on behalf of consumers and the legal profession. While the Law Society was able to seek review of this decision by the Legal Complaints Review Officer, after considering all of the factors and the current disciplinary legislation, we did not believe it should be referred to the LCRO,” she says.

“The reasons for so doing included evidence that the two employees concerned were satisfied with the way the firm dealt with the matter, the fact that the lawyer had taken full responsibility for his actions, had shown significant contrition and remorse, had no prior disciplinary history, and had taken rehabilitative steps which included treatment from a mental health specialist to ensure there was no repeat of the behaviour.

“The standards committee decision included a full discussion of its current jurisdiction to consider and address conduct that occurs in a social setting within a law firm. The matters raised are very much part of the issues identified by Dame Silvia Cartwright’s regulatory working group. The Law Society will be consulting with the legal profession on how the working group’s recommended changes may be achieved, and we encourage people to engage in that process.

“The decision highlights the difficulties standards committees currently face in addressing behaviour which occurs at work social events, given the consumer focus of the current disciplinary regime. Both employees were satisfied with the process followed by the law firm. One employee signalled that they did not wish to participate further in the disciplinary process. A majority of members of the standards committee found, despite the lawyer’s submissions to the contrary, that there was jurisdiction to make a finding that the conduct was essentially connected to legal work. However, a minority did not agree there was jurisdiction under the current legislation. Looking at the matter in its entirety, the Law Society chose not to seek a review.”

Ms Beck says the Law Society has prepared a further more comprehensive outline of the distinction between unsatisfactory conduct and misconduct, and other considerations relating to bringing proceedings in the Disciplinary Tribunal which is available here.

“The report by Dame Silvia’s group identified a range of problems with the current regulatory mechanisms and processes for dealing with complaints about sexual harassment, discrimination and bullying. The Law Society is acting to secure change, but as our outline demonstrates, the current system is the one which we must operate under until that change occurs.”

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Last updated on the 12th February 2019