Sasha Borissenko: The double standard in the legal profession

Men censured for sexual harassment continue to have their identities protected. Photo / Getty Images

COMMENT

It has been four years and nine months since the alleged misconduct against women employees at Russell McVeagh in 2016 and the alleged perpetrator is still registered as a practising barrister. What does this say about how the legal profession views sexual harassment and the effectiveness of its regulatory body?

Last year, a former partner at a law firm was censured and fined for sexual harassment after he pinched a woman twice, propositioned employees, and grabbed a woman's wrist and forced it against his groin telling her, "this is for you". Mr X was afforded name suppression and the Standards Committee decided a charge of misconduct before the NZ Lawyers and Conveyancers Disciplinary Tribunal was not justified.

Recently, in September of this year, Richard Harker retained his right to continue to practice law following a decision made by the NZ Lawyers and Conveyancers Disciplinary Tribunal - subject to conditions. Harker was convicted in 2017 of two charges of committing an indecent act on two boys aged 10 and 12.

How do you get struck off?

Meanwhile, Frederick Baker was struck off the roll in 2018 for using client funds from his firm's trust account to pay debts owed by the firm; Ian Hay was struck off in 2018 for disgraceful conduct after he guaranteed a $200,000 loan and failed to repay the money; Timothy Slack was struck off in 2018 after he was charged in the High Court for serious fraud; and Richard Woodhouse was struck off for misappropriating trust money.

The Aotearoa Legal Workers' Union has come out swinging, saying the regulatory system of the legal profession is disproportionately focussed on financial conduct.

Representatives Indiana Shewen, Bridget Sinclair, and Helen Munro have said the Law Society is ill-equipped to deal with issues of sexual harassment and assault.

Despite the Law Society's survey findings that one in five legal workers have been sexually harassed in the workplace "its Standards Committee inexplicably continues to decide that neither sexual harassment nor behaviour amounting to indecent assault amounts to misconduct, and that lawyers and legal workers are not entitled to be protected and free from another".

"If sexual harassment only deserves a censure and a fine, what will get a lawyer struck off?"

In the cases of Mr X and Harker, the decisions were not based on what the statutory scheme allowed; it was instead a value-based decision concerning the perceived severity of these lawyers' misconduct, they said.

"[The union] does not accept that these decisions were made due to any deficit in the rules. Instead, the problem is clear – the Standards Committee and Tribunal view sexual harassment and assault as unworthy of striking a lawyer from the roll. This is not acceptable."

What the Law Society has to say

Law Society chief executive Helen Morgan-Banda once admitted to the profession that lawyers are expected to take responsibility for their own conduct and are required to maintain certain professional standards. They are also required each year to make a declaration that they are a fit and proper person when they are renewing their practising certificate. The Law Society considers criminal convictions when assessing whether someone is a fit and proper person to hold a practising certificate.

"Lawyers are required to make a confidential report to us if they have reasonable grounds to believe another lawyer is guilty of misconduct. Lawyers are also encouraged to do this in respect of unsatisfactory conduct." Which is to say, there are few measures to ensure lawyers are fit and proper people other than the lawyers themselves owning up to their bad behaviour.

Standards Committee mandate, not the Law Society

All complaints received must be first considered by Standards Committees, which are composed of lawyers and laypeople. Committees can consider criminal convictions and refer the most serious cases to the independent New Zealand Lawyers and Conveyancers Disciplinary Tribunal.

The tribunal is overseen by the Ministry of Justice and operates like a court with hearings ordinarily open to the public. The tribunal is the only body that can make a finding of misconduct and, therefore is the only body who can strike off or suspend a lawyer, Morgan-Banda said.

"Charges that may be brought before the Disciplinary Tribunal include where a lawyer has been convicted for an offence punishable by imprisonment and it is alleged that the conviction reflects on their fitness to practice or tends to bring the profession into disrepute."

In the cases involving the alleged Russell McVeagh perpetrator, Richard Harker and Mr X, Morgan-Banda could not comment on the number of cases involving sexual misconduct, or specifics - citing the Lawyers and Conveyancing Act 2006. "We would be breaking the law if we released information about specific complaints," she said.

Where to from here?

Morgan-Banda said the Law Society was playing its part, alongside other leaders in the legal sector, to improve the culture of the profession. As a result of the Law Society's Independent Regulatory Working Group, chaired by Dame Silvia Cartwright, the body plans to change and define discrimination, bullying, harassment, sexual harassment, and other unacceptable conduct in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 and the (Lawyer: Ongoing Legal Education Continuing Professional Development) Rules 2013.

The proposed changes also clarify the threshold for reporting unacceptable conduct to us and put in place protections for anyone who makes a report or complaint, she said. Following consultation that garnered 342 responses and 38 written submissions, most were supportive of the proposed changes. They will now be put before the Law Society Council for approval, before being submitted to the Minister of Justice for approval.

But what about the independent review into the structure and functions of the Law Society? It's been a year since the announcement which aimed to combat the constraints of the Lawyers and Conveyancers Act 2006 on the Law Society's ability to be transparent about its complaints process, and to deal with complaints of sexual harassment and bullying. Morgan-Banda said the review was paused as a result of Covid-19 but has since restarted.

Is there any easier way?

The current rules require lawyers on tribunals to have at least seven years post qualified experience (PQE), and lawyers on Standards Committees to have at least five years PQE. The union has said that these constraints are "discriminatory, unnecessarily restrictive, drive negative outcomes, and mean that these disciplinary bodies do not adequately represent all the voices of our profession". It has thus proposed to remove the PQE requirements.

Younger legal workers are passionate, tend to have fewer commitments and more time, and are those most likely to be victims of sexual harassment and bullying, Sinclair, Shewen, and Munro said.

"[Younger people] are uniquely placed to bring an educated, considered, and nuanced lens to this issue. Younger practitioners are literally the profession's future. It seems inconceivable for that to be unrepresented on a committee responding to breaches of our expected standards and behaviours."