Mr Gardner-Hopkins was suspended for three years in February 2022, after being found guilty of misconduct for inappropriate sexual behaviour. Although the Law Society’s Standards Committee applied for Mr Gardner-Hopkins to be struck off, the Lawyers and Conveyancers Disciplinary Tribunal and High Court, on appeal, found Mr Gardner-Hopkins fit and proper at the time of the penalty hearing and imposed a suspension. The Tribunal outlined a pathway for Mr Gardner-Hopkins' return to practice.
In considering Mr Gardner-Hopkins’ practising certificate application, the Committee was required to apply a forward-looking legal test to determine whether there had been a change in Mr Gardner-Hopkins’ fit and proper status since Mr Gardner-Hopkins was suspended.
A majority of the Committee concluded there was no evidence before it that Mr Gardner-Hopkins no longer remained 'fit and proper'. This view was based on a range of considerations, including his insight into his previous offending and its impact on others, and the steps he has taken to address the underlying causes of his offending and to satisfactorily address the Tribunal's risk factors. The majority also had regard to the independent assessment and scrutiny Mr Gardner-Hopkins had undergone as part of his application, including the report of an independent psychologist engaged by the Committee.
Mr Gardner-Hopkins is subject to a formal mentoring arrangement by two senior lawyers. The arrangement is to continue for two years and may be extended, if assessed as appropriate, by the Law Society. The arrangement may only be discharged or altered with Law Society approval. It includes mandatory periodic reporting to the Law Society by Mr Gardner-Hopkins’ mentors and review and escalation mechanisms.
Mr Gardner-Hopkins will now be able to resume practice as a lawyer.
While the Committee process is generally not made public for privacy reasons, the Law Society has decided to publish a summary of the decision, due to the serious nature of the misconduct and the level of interest from the legal profession, public and individual submitters on the application (decision summary).
The Law Society acknowledges there will be people who are disappointed by this outcome. The misconduct which led to Mr Gardner-Hopkins' suspension was serious, caused significant harm to the victims of his misconduct, and attracted widespread interest from the legal profession and the public. The Law Society recognises the impact of Mr Gardner-Hopkins' misconduct on the legal profession and the courage of those who came forward and gave evidence.
Background
Changes made to the legal profession since 2018
Since 2018 there have been a number of changes both to the processes for reporting and taking action on harassment and other unacceptable conduct in legal workplaces.
The 2018 Cartwright Report resulted in changes to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules) in 2021 to address reporting issues around bullying, discrimination, harassment, and other unacceptable conduct. The amended Rules include clearer definitions of different types of unacceptable conduct and implemented designated lawyer obligations that require mandatory reporting to the Law Society. Each law practice also needs to have a bullying and harassment policy and a process for investigating allegations of unacceptable conduct. Designated lawyers are required to report annually to the Law Society that their law practice has complied with their reporting obligations and has the mandatory policies and systems in place.
Guidance was released to help lawyers understand their obligations, and to support and empower people who are affected by unacceptable conduct.
Further specific changes have also been made by the Law Society to respond to the Cartwright Report’s recommendations. The Law Society established a specialist team and standards committee in the Lawyers Complaints Service to manage sensitive complaints matters. Lawyers can contact the Law Society to confidentially discuss their matters with a specialist advisor. An in-house investigation unit has also been set up to improve timeliness and consistency of the investigation process.
There is now an established body of case law where the perpetrators of unacceptable behaviour have been the subject of serious disciplinary consequences, such as long-term suspensions. For example, the cases of Gardner-Hopkins, Q, Palmer, and Mulligan.
Independent Review
The Law Society commissioned an independent review in 2021 resulting in a system level review of the regulation of lawyers and considering the need for legislative reform and governance changes to ensure that the regulatory framework is fit for purpose. After consultation with its Council members and the profession, the Law Society accepted in principle most of the recommendations in the review, including recommendations to establish a new independent regulator and an overhaul of the system for handling complaints about lawyers. The Law Society’s response to the Independent Review recommendations was published in 2023.
The Law Society provided its response to the Minister of Justice; however, the Minister has indicated that wholesale reform is not a priority for this term of government.
The Law Society is committed to making ongoing improvements to modernise the regulation of lawyers within the current legislative framework. We have been exploring other options with the Ministry of Justice such as making some targeted amendments to the Lawyers and Conveyancers Act 2006. The Law Society recently consulted on proposed amendments to the Lawyers and Conveyancers Act 2006, including whether the ability of parties to review charges to the Legal Complaints Review Officer should be removed, and enabling information to be provided to affected persons, whether or not they are the complainant.
The Law Society has also commenced a work programme considering changes that can be made to the regulatory system within the Law Society’s control such as registration processes, improvements to the complaints model and governance.
Reporting unacceptable conduct
A confidential report or a notification about a lawyer engaging in unacceptable conduct can be made by phoning the Lawyers Complaints Service on 0800 261 801 or emailing complaints@lawsociety.org.nz
Alternatively, you can contact LawCare on 0800 0800 28 and speak to a Law Society staff member for advice on confidential workplace complaints and sensitive issues.
Lawyers and law firm employees can also speak to the designated lawyer in their workplace.
Counselling services
The Legal Community Counselling Service (free phone 0508 664 981) is available to anyone in a legal workplace. The service is operated by Vitae and provides up to five free counselling sessions by trained and accredited clinicians.
