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Why wasn't the Law Society told?

Allegations of serious sexual assaults against students on law firm Russell McVeagh’s summer clerk programme, which should have been reported by the firm’s lawyers at the earliest opportunity, took eight to nine months to reach the Law Society.

Newsroom has confirmed the matter reached the profession’s regulator only when one of the young women involved told the society, despite lawyers’ clear obligation to report such misconduct.

The lengthy delay in the matters being brought to the attention of the Law Society could mean Russell McVeagh lawyers are in breach of the Lawyers and Conveyancers Act whistleblowing procedures.

The Law Society regulates all lawyers in New Zealand including in relation to misconduct.

Its president, Kathryn Beck, has confirmed in an interview with Newsroom that it first became aware in September 2016 of the Russell McVeagh summer clerk allegations of sexual assaults which occurred in December 2015 and January 2016.

“There was a meeting in confidence in early September between [the Society’s executive director] and one of the [young women] and her representative. That is the first time that any of this appears to get on the horizon.”

The timing is critical. Russell McVeagh knew of the allegations first in December then again in January. Lawyers automatically become obliged to report behaviour that amounts to misconduct to the Society “at the earliest opportunity".

The timing is critical. Russell McVeagh knew of the allegations first in December then again in January. Lawyers automatically become obliged to report behaviour that amounts to misconduct to the Society “at the earliest opportunity.”

The firm says it undertook a detailed ‘internal’ investigation and the two lawyers accused by the clerks left Russell McVeagh.

Its awareness of the seriousness of the allegations of misconduct is reflected in its having barred one of the men from its premises since, and banned women lawyers working with him on ongoing Russell McVeagh client case work.

The Society’s governing legislation prevents it confirming if someone has complained to it. But Beck’s confirmation that a young woman first raised the matter in September and that was the society’s first knowledge of the matter is telling. It could be, but will not be made public, that Russell McVeagh or another party subsequently made a complaint, but not before September.

Legal experts have told Newsroom the lawyers at the firm who knew of the misconduct had to take it beyond the firm’s walls and to the Society.

Kathryn Dalziel, a Christchurch lawyer who both lectures in legal ethics at Canterbury University and co-authored a book “Ethics, Professional Responsibility and the Lawyer”, was clear.

“If the Law Society first heard about this from one of the complainants eight to nine months after the events, then this suggests the Russell McVeagh partners who knew about it failed to report the matter to the Society at the earliest opportunity which is their duty under our professional rules of conduct and client care,” she said.

“If the Law Society first heard about this from one of the complainants eight to nine months after the events, then this suggests the Russell McVeagh partners who knew about it failed to report the matter to the Society at the earliest opportunity which is their duty under our professional rules of conduct and client care,” she said.

“If that is the case, then in my view that is not good enough and serious questions need to be asked of those partners at Russell McVeagh.”

She noted the firm’s protections in place subsequently to protect women staff from one of the men still acting on client work. “If Russell McVeagh had to take steps to protect women staff members to the extent that at least one of those lawyers is not even welcome on their premises, then they must have been satisfied this lawyer’s behaviour amounted to misconduct.”

Both men at the centre of the allegations went on to work elsewhere in Wellington in the law. At least one still holds a practising certificate .

The secrecy surrounding what actions have been taken since the Law Society became aware of the allegations raises the question around the level of confidence people considering complaining about sexual assault can have in the system which deals with it.

Reporting misconduct. Rule 2.8

Rule 2.8 of the Lawyers Conduct and Client Care Rules 2008 provides, compulsorily, that “a lawyer who has reasonable grounds to suspect that another lawyer has been guilty of misconduct must make a confidential report to the Law Society at the earliest opportunity.”

“Misconduct” under the Rules includes conduct “that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable”.

A University of Otago law school Associate Professor, Selene Mize, said if a lawyer has reasonable grounds to suspect misconduct they must report it.

“If a lawyer is unsure whether there are sufficient grounds to suspect misconduct, it would be good for them to err on the side of safety and report. Reporting can lead to an investigation that will uncover a fuller understanding of the situation; it does not prejudge the merits or result in publicity unless, following investigation and determination of the complaint, a censure order is made.”

The Otago University dean of Law Professor Mark Henaghan said of the conduct rules: “Another lawyer has been guilty of misconduct and it’s an obligation, it’s not just a maybe - it’s a must, to make a confidential report to the Law Society at the earliest opportunity"

In a press statement made after Newsroom published its investigation a week ago, the Law Society’s Kathryn Beck, made it clear sexual assault could be classed as misconduct “any form of sexual harassment is totally unacceptable in legal workplaces and there is no doubt that it is covered by the legislation.”

The Otago University dean of Law Professor Mark Henaghan said of the conduct rules: “Another lawyer has been guilty of misconduct and it’s an obligation, it’s not just a maybe - it’s a must, to make a confidential report to the Law Society at the earliest opportunity.

“And of course that’s there to protect the public if there’s any risk the lawyer may use that misconduct against other clients or another person in any situation, really. It is quite an important obligation of all lawyers to report misconduct.

“If you suspect it then you must report it.”

While it was important Russell McVeagh also held an internal investigation and acted, “doing something yourself is one thing and that’s important to do but I don’t think it removes the nature of the obligation,” Henaghan said.

The allegations

The first alleged incident of sexual misconduct took place at a Russell McVeagh Wellington Christmas function in December 2015. It was allegedly witnessed by numerous people, including partners and staff, and reported to Russell McVeagh’s human resources department.

A former staff member told Newsroom: “If [Russell] McVeagh HR had taken it seriously perhaps the next two more serious assaults would not have taken place. It is my view that it wasn’t until the police became involved that [Russell McVeagh] took it seriously.”

It is alleged those two, more serious, followed. One was at a smaller team party held shortly before Christmas in 2015, involving the same male staff member accused of alleged sexual harassment at the earlier Christmas function. The other alleged incident involved a different staff member and took place at El Horno bar in Wellington. The latter incident resulted in police involvement.

Just months after leaving Russell McVeagh one of the men was involved in a further incident which resulted in a group of people intervening at a social event following a lawyer’s conference to help a young lawyer who they felt was being targeted by the man.

How Russell McVeagh responded

Russell McVeagh has publicly acknowledged being made aware of the allegations.

A senior partner, Pip Greenwood, said board members and partners were alerted after the human resources department was informed.

“A number of partners here, were very shocked by what happened.

“As soon as we found out, in relation to, the matters concerned, we conducted a thorough investigation and then we took action very quickly.”

According to Greenwood the investigation took two weeks. She would not confirm if the men were fired or resigned.

“There are no female solicitors on those matters and our contact with the person concerned has been as limited as possible. The person concerned is not welcome on our premises, there are no meetings to be held on our premises.

“I don’t think I can answer that question directly, but what I can do, and you can infer what it, from what you like from it, is following the investigation, those two individuals were no longer at the firm.”

One of the men remained involved in legacy matters with clients of the firm. She said Russell McVeagh was legally obliged to remain working on the matters.

It was Greenwood who revealed the seriousness with which Russell McVeagh considered the conduct of at least one of the men.

“There are no female solicitors on those matters and our contact with the person concerned has been as limited as possible. The person concerned is not welcome on our premises, there are no meetings to be held on our premises.”

Despite the thorough investigation resulting in the men leaving the firm, and the extreme measures taken protecting staff required to continue dealing with one of the men, it appears no report of misconduct was made to the Law Society by any of the lawyers at Russell McVeagh with knowledge of the allegations. At least not before September.

Breach of Conduct and Client Care Rules

Newsroom spoke to Beck and asked if under rule 2.8 anyone at Russell McVeagh had an obligation to alert the Society to the alleged misconduct as soon as possible.

Due to the confidentiality component of Rule 2.8, Beck said she could not answer the question, or say whether anyone at Russell McVeagh had in turn breached the Rules by not making a confidential report.

“I can’t answer that question. You can interpret our Rules. You can form your own views on what our Rules mean.”

Laws only part of the solution

The confidential way that matters are investigated under the Rules means there is no visibility of complaints made, or visible disciplinary action taken against firms who fail to report misconduct.

Texts of decisions made by the Law Society’s standards committee are not released for scrutiny meaning there is no way of knowing how complaints have been handled.

In this case, what is visible is that the two men involved continuing to be allowed to practise law after allegations have been made against them.

Associate Professor Selene Mize said New Zealand has appropriate laws against sexual harassment but the laws are only part of a solution.

“Those considering making allegations that they have been subjected to inappropriate behaviour need to expect that they will be treated sensitively and their allegations investigated fairly for the system to work as it should.”