Law Society decision ‘woefully inadequate’
The Law Society has fined and censured an unnamed former partner in a law firm who admitted to sexually harassing two employees.
It’s the first standards committee decision publicly released since the Russell McVeagh revelations of last year, and the findings have disappointed those advocating for more accountability in the legal profession. Sasha Borissenko reports
A former partner has been fined $12,500 and ordered to pay costs of $2,500 for sexually harassing two employees at an unnamed law firm for what has been described as ‘unsatisfactory conduct’ in a Standards Committee decision, released yesterday.
The first incident occurred during ‘Friday night drinks’ held on the firm’s premises. Drunk, the partner touched the leg of a female solicitor and said, “you are very attractive.” The solicitor complained informally to the firm.
The second event occurred at the firm’s end-of-year party, held outside the firm. The partner approached a non-lawyer female employee on the dance floor, “pinched her bottom, leaving a bruise”, the decision said.
He propositioned her, saying “Are you coming home with me?”. He also grabbed her wrist and forcibly squeezed her hand against his groin while saying “this is for you”. The woman reported the events to the firm. The man subsequently resigned.
The firm in turn reported the conduct to the Law Society, and the standards committee began an investigation in March last year.
Specific dates as to the offending or reporting to the Law Society were unable to be confirmed, Law Society executive director Mary Ollivier told Newsroom.
Despite the man admitting to the offending, Ollivier could not say whether it had referred the matter to police, saying she was “unable to comment on any steps relating to any specific matter that are not contained in the published decision. There are confidentiality restrictions in the decision”.
The decision has outlined current limitations of the Law Society regulatory process, and whether the committee had legislative jurisdiction over events outside lawyers conducting normal client business.
A Law Society working group chaired by Dame Silvia Cartwright late last year looked at the same issue but the time of any recommended changes is unknown.
The confidential nature around yesterday’s decision, the penalty and the failure to name the lawyer have led to further questions as to whether the Law Society is doing enough.
Unsatisfactory conduct v misconduct
The former partner’s conduct did not amount to a more serious charge of misconduct because the lawyer had taken full responsibility for his actions, and the lawyer had no prior disciplinary history with the Law Society, the decision said.
Zoë Lawton, who started a blog for sexual violence victims to document their stories anonymously, said the standards committee had to decide 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 simply find the conduct unacceptable or would they find it disgraceful or dishonourable."
The Committee decided that lawyers of good standing would merely find this unacceptable, not disgraceful or dishonourable, she said.
"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 7 years in prison.
"What he did is clearly disgraceful or dishonourable and it begs the worrying question, what more dreadful things does a lawyer have to do to meet the Standards Committee's misconduct threshold?
Olivia Wensley, another lawyer who has weighed in on the discussion says this is the first time in the Law Society’s 140-year history that they’ve taken punitive action against sexual violence, and the result is “woefully inadequate”.
"The fine amounts to approximately 10 hours of a senior partner's charge out rate - which is pathetic!
“If a $15k fine is the ‘worst case scenario’ for an offender, it is very discouraging for sexual harassment survivors who want to report offenders.
“Personally, I don't think it's worth it to go through such stress and to likely suffer career ramifications.”
Both Wensley and Lawton agreed that the penalty doesn’t reflect the seriousness of the conduct or act as a sufficient deterrent to others.
Lawton believes the man should have been suspended from practising for an appropriate period of time.
The decision also doesn’t specify whether the fine is to be paid as reparation to the victims, or into the Law Society’s bank account.
“The money should be going to the complainants - like it does in cases in criminal courts. It’s unclear whether a law change is needed to allow this or if it is already within the power of Standards Committees to award reparation.”
Confidential nature of the decision
Ollivier told Newsroom the Committee considered and decided against ordering that the identity of the lawyer be published.
“[The Committee] ordered publication of the facts to educate the legal profession and to provide guidance to lawyers in relation to their own conduct and also the conduct of others that they may witness and which they may be required to report.”
Lawton said the decision doesn’t give any justification for the suppression. The Committee had full discretion, and has repeatedly named lawyers for other types of unsatisfactory conduct in the past.
“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.”
Partners at firms who sexually harass staff and subsequently resign or are forced out often then become sole barristers and employ their own staff, she said.
“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 to warn others in the profession and the public of the potential risk they pose it should suspend the perpetrator from practicing to seek appropriate rehabilitative treatment."
Wensley said she expected the Law Society to take a much stronger stance to send a clear message out that this was unacceptable behaviour.
"There is a public interest in naming the offender - lawyers are placed in a position of trust by their clients, who should have a right to know if their lawyer has faced disciplinary action.
"The name suppression is protecting the offender - when the Law Society should be protecting clients and any future victims."
Ollivier told Newsroom since the Russell McVeagh revelations were reported on in February last year, 31 reports and complaints of unacceptable conduct have been lodged with the Law Society. Of the 31 reports, 22 are currently under investigation.
“We cannot comment on specific cases,” she said.
A police spokesperson said they would encourage anyone who has been a victim of an offence to report it to the police.
“Sexual assaults are known to be underreported - it's estimated only 10 to 15 percent of incidents are reported to police.
“There are a variety of reasons why a victim may choose not to make an official complaint to Police, however we want to reassure anyone who has been a victim of such an assault that we will take their report seriously and do everything we can to treat them with sensitivity.”