Sex abuse ruling misses the mark
The misconduct threshold for lawyers who harass is too high, says Zoe Lawton.
Aregional Law Society Standards Committee has released the first decision nationwide on a sexual harassment complaint. Spoiler alert: they totally missed the mark.
At an unnamed firm’s Friday night drinks the lawyer in question, a partner, touched the leg of a female solicitor seated near him and said, ‘‘You are very attractive.’’ She became upset, removed herself from the situation and reported it. When questioned later by the other partners at the firm, he said he had no recollection of what happened because he was drunk.
Despite being told that he should not attend staff drinks functions in future, he attended the firm’s end-of-year party. This time he targeted another employee of the firm, pinching her on the bottom not once but twice – so hard that it left a bruise.
Despite being told to stop, he went on to harass the employee on the bus ride home where she couldn’t escape, asking her: ‘‘Are you coming with me’’? He then grabbed her wrist and forcibly squeezed her hand against his groin while saying ‘‘this is for you’’. A male colleague had to intervene to remove the partner.
When questioned as part of the firm’s internal disciplinary process, he again said he had no recollection of what happened because he was drunk.
The next day the other partners at the firm removed him from the partnership and he elected to resign from the firm altogether. A report was then made to the Law Society Standards Committee.
The ultimate issue the committee had to decide was whether the partner’s conduct amounted to the statutory definition of unsatisfactory conduct or misconduct, the latter being more serious. To decide this, they appear to have asked themselves: would lawyers of good standing find the conduct unacceptable or would they find it disgraceful or dishonourable?
Astonishingly, the committee decided that lawyers of good standing would find this partner’s blatant verbal and physical sexual harassment to be merely unacceptable, not disgraceful or dishonourable.
I have serious concerns about this decision because, on the face of it, what he did could amount to indecent assault under the Crimes Act, which carries a maximum term of seven years in prison. It’s clearly disgraceful and dishonourable and also begs the worrying question, what more dreadful things does a lawyer have to do to meet the Standards Committee’s misconduct threshold?
The penalty imposed on the partner – a $12,500 fine – does not reflect the seriousness of what happened or act as a sufficient deterrent to others. This is a drop in the bucket for most partners, especially those at large firms.
He should have been suspended from practising for an appropriate period of time, resulting in a significant loss in income. That would also send a clear message to the many other senior members of the profession who have sexually harassed, or are currently harassing, their colleagues.
It also appears from the decision that the fine is paid to the Law Society and not split between the complainants as reparation. If the Standards Committee has jurisdiction to award reparation the money should be going to the complainants – as it does in cases in our criminal courts.
In terms of publication, the Standards Committee has full discretion as to whether the decision should be published and what details, including the name of the lawyer, are suppressed. Over the years many lawyers have been publicly named for other types of unsatisfactory conduct and misconduct in the profession’s monthly publication LawTalk, which is available online.
In this case the Standards Committee does not give any reasons why it decided to suppress the name of the lawyer. This is not good enough – when judges suppress the names of offenders in criminal courts they provide reasons, so the Standards Committee should do the same.
Based on what I’ve learnt as a result of running a #metoo blog for the profession last year and subsequently hearing from hundreds more in the profession, partners at firms who sexually harass staff and then resign or are forced out often become sole barristers and employ their own staff.
This ex-partner is under no obligation to disclose the fact he has a history of sexually harassing staff to any lawyers and support staff he subsequently employs or any of his clients. Given his history he could then go on to sexually harass them and the horrible cycle continues.
If the Standards Committee is not going to publicly name perpetrators of sexual harassment like this partner to warn others in the profession and the public of the potential risk they pose, it should suspend the perpetrator from practising, to seek appropriate rehabilitative treatment.
If the person wants to return to the profession they should be required to submit a report from an independent psychologist who confirms their risk of reoffending is low to nil. If they can’t prove this they shouldn’t be able to return – the Standards Committee has a responsibility to protect those in legal profession and members of the public who are potential clients.
So what next? Andrew Little, Minister of Justice, I hope you’re reading this. As Dame Silvia Cartwright concluded in her recent review of the disciplinary process, we need a totally new one and this decision of the Standards Committee undoubtedly confirms that. Let’s get the ball rolling.
Zoe Lawton is an independent legal researcher and writer. zoelawton.com/metoo-blog