New Zealand Law Society - Unwelcome personal comments to colleagues deemed unsatisfactory conduct

Unwelcome personal comments to colleagues deemed unsatisfactory conduct

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A Standards Committee has found there was unsatisfactory conduct by a lawyer, L, for conduct amounting to sexual harassment. The finding followed an investigation by the Committee (of the Committee’s own motion) following information received by the New Zealand Law Society | Te Kāhui Ture o Aotearoa expressing concerns about his behaviour.

L’s conduct took place over several years and across his employment at two separate firms.

In the first case, Ms A, complained to Firm A that L sexually harassed her when she was a junior solicitor. L was more senior to her at the firm, and Ms A felt that he had exploited his position within the firm.

Examples of L’s behaviour included frequent invitations to meet outside the office, offering to escort Ms A to her car at night, and comments on her appearance.

In the second firm, L sent unsolicited text messages to the personal cell phone of a colleague, Ms B, including late in the evening.  While the content of the messages was not in itself overtly sexual, it was nevertheless unwelcome. Another female employee received “overly friendly“ emails from L which made her feel uncomfortable.

Ms B subsequently resigned and on her final day at the office, she says L told her that he had sexual feelings for her and found her sexually attractive. L denied using the word “sexually”, but the conduct was otherwise generally admitted.

L’s conduct was assessed by the Committee against his obligations under Rule 10 of the Lawyers and Conveyancers Act (Lawyers: Client and Conduct) Rules 2008 (RCCC) which requires all lawyers “to promote and maintain proper standards of professionalism in the lawyer’s dealings” and Rule 10.1 which requires lawyers to treat other lawyers with respect and courtesy.

The Committee was influenced by the fact that L was in a senior position in comparison to the women who were subjected to his unwelcome attentions and it considered that he had abused this position. 

The Committee noted that his conduct had a significant impact on the women and could have supported a finding of misconduct.

In making a finding of unsatisfactory conduct however the Committee noted that amongst the reasons it did not lay formal misconduct charges to be considered by the New Zealand and Conveyancers Disciplinary Tribunal were:

  • those affected by his behaviour did not wish to participate in the disciplinary process. A consideration for the Committee was that if misconduct charges were laid before the Disciplinary Tribunal, the lack of ability to test this evidence could have impacted on the strength of the prosecution’s case;
  • the absence of any physical contact as an element of L’s conduct; and
  • the steps taken by L to address his conduct, the prospect of genuine and lasting reform, and his capacity to be a contributing and respectful member of the profession as supported by a psychologist.

L was censured, fined $3,000, and ordered to pay costs of $1,500 to the Law Society. The Committee noted that if a lawyer is aware of such conduct by a practitioner, they should submit a confidential report to the Law Society pursuant to the obligation imposed by Rule 2.8 of the RCCC.

Information about the role of Standard Committees

The Law Society administers one aspect of the complaint and disciplinary process – the Lawyers Complaints Service – which receives complaints about lawyers. Complaints are referred to independent Standards Committees which are responsible for investigating and deciding on the outcome of complaints made about lawyers. The Law Society has no power to direct Standards Committees to take further action or to influence the outcome of their inquiries. Members of Standards Committees are lawyers and lay people.

Standards Committees have the power to undertake investigations of their "own motion". Such investigations arise where matters are referred to the Law Society (other than as a complaint); or where the person raising a concern opts not to take an active role as a complainant. 

At the conclusion of the Standards Committee’s process, a Standards Committee may decide to take no further action; may find that a lawyer has engaged in unsatisfactory conduct; or may make a referral to the Lawyers and Conveyancers Disciplinary Tribunal if it considers the conduct complained of may amount to misconduct. 

Only the Standards Committee can make an order to publish its decision, including any names of lawyers, in summary or in full. 

There is more information about the co-regulatory system governing the legal profession here.