The development of professional disciplinary responses to intimate and sexual harassment

Following greater awareness and scrutiny of harassment in the workplace, the Lawyers and Conveyancers Disciplinary Tribunal has grappled with the appropriate penalty imposed against practitioners.

This article sets out how the Tribunal (and the High Court on appeal) has approached balancing the protective purpose of its jurisdiction with the importance of denouncing sexual and intimate misconduct through its decisions in Gardner-Hopkins, Palmer, and most recently in Tingey.

The primary purpose of imposing a penalty was discussed by the Court of Appeal in Morahan — the Tribunal “must bear in mind its responsibility to protect the public”, maintain public confidence in the profession, and assist the practitioner to rehabilitate and reintegrate into the profession. While a penalty may have a punitive function and effect, the primary purpose is public protection and rehabilitation. The Tribunal must also adopt the least restrictive outcome that appropriately maintains public confidence.

Although previous decisions had considered the sexual harassment of clients, the penalty decision against James Gardner-Hopkins required the Tribunal to balance these purposes for the first time in the context of colleagues in the legal profession. Mr Gardner-Hopkins was found guilty of six incidents of exploitative sexual contact with five law clerks at work events; there was a significant power imbalance between these junior clerks and Mr Gardner-Hopkins’ position as a law firm partner.

The Tribunal considered the seriousness of Mr Gardner-Hopkins’ conduct warranted strike-off as a starting point. The Tribunal identified the repetition of the conduct; the power imbalance; vulnerability of the junior clerks; the “incalculable impact” on the young women, including causing some to leave the legal profession entirely; and the “sexualised culture” fostered by Mr Gardner-Hopkins within his team as aggravating features of the offending. No aggravating features related to Mr Gardner-Hopkins himself, such as previous disciplinary findings, were found by the Tribunal.

The Tribunal then turned to mitigating factors, which was a focus for the High Court on appeal. While much has been written on the High Court’s rebuke of the Tribunal’s findings that the financial and reputational consequences suffered by Mr Gardner-Hopkins constituted mitigating factors — the High Court stated that the “negative consequences that have flowed from the misconduct are not positive factors in Mr Gardner-Hopkins’ favour in the context of disciplinary proceedings” — what is particularly useful when assessing appropriate penalties in future cases is the High Court’s agreement with the Tribunal on the mitigating effects of rehabilitation taken by the practitioner.

The Tribunal had found that Mr Gardner-Hopkins’s therapy attendance to address his alcohol use, his self‑reflection and late apology, and that no further complaints had been received about his conduct in the past six years were positive mitigating factors. The High Court agreed. In declining to strike-off Mr Gardner-Hopkins, the High Court cited the steps taken by him to address the underlying issues leading to his misconduct as satisfying the Court that he “has developed and is continuing to develop strategies to ensure that it does not happen again”.

Perhaps telling was the Tribunal’s emphasis that “isolation poses a risk to a lawyer who is learning good habits”. The Tribunal believed that Mr Gardner-Hopkins’ “risk of repeating his actions will be reduced, and the public can be confident” if support and reconnection to the profession is offered to Mr Gardner‑Hopkins.

Similar emphasis on rehabilitation was demonstrated in Palmer, a case also involving the inappropriate sexual harassment of young female colleagues by a senior practitioner. Richard Palmer was found liable for three incidents in which he took law clerks to a sex shop, engaged in unconsented touching, and persistently sought to persuade a junior solicitor to have dinner outside of work.

The Tribunal’s decision again turned on the level of insight expressed by Mr Palmer towards his actions. The Tribunal considered the trivialising by Mr Palmer of his conduct demonstrated a “lack of genuine insight of the harm done” and “tendency to minimisation”. While Mr Palmer had given assurances that he had modified his behaviour and not behaved improperly since he began new employment in 2018, the Tribunal determined it could not give much weight to this assertion given his lack of insight.

In Tingey, the context differed in that Murray Tingey and the complainant were colleagues of similar seniority and were involved in an intimate relationship over many years. The most serious incident of misconduct involved domestic violence.

What appeared decisive in Tingey was the Tribunal’s view that Mr Tingey had demonstrated genuine regret and insight into his actions. The Tribunal noted Mr Tingey apologised in 2013, “long before any complaint was made and unprompted by any suggestions of repercussions for him”.  Further, Mr Tingey had sought professional help some years before the complaint was made, and two favourable reports were provided on the rehabilitative work undertaken by Mr Tingey in the intervening years. Accordingly, the Tribunal held a “low concern” that Mr Tingey would repeat any misconduct.

While the Lawyers and Conveyancers Act 2006 refers primarily to the purposes of protecting the public and maintaining public confidence in the profession, these cases suggest that the Tribunal will give significant weight to rehabilitative steps taken by the practitioner. Where a practitioner has shown growth and self-awareness, and taken proactive steps to reintegrate, the Tribunal will generally be cautious in imposing strike off or suspension. In Tingey, the Tribunal explicitly stated:[

We must remind ourselves, in imposing penalty, that the purpose of the legislation is to protect the public, and to uphold professional standards so as to maintain the confidence of the public in the provision of legal services.… [T]he primary purpose of sanction is not to punish or denounce.

What is emphasised by the Tribunal are the insights gained by the practitioner, their participation in rehabilitation and therapy, any changes to behaviour made, and the risks of future misconduct. When bringing disciplinary proceedings against a practitioner, it will be important to consider what evidence exists of the insights gained and rehabilitation undertaken by the practitioner when submitting on the appropriate penalty.

As other professions also contend with a growing public awareness of the seriousness and unacceptability of workplace intimate and sexual harassment, particularly on junior colleagues, it may well be that the approach taken in the legal disciplinary space will be considered and applied in other professional disciplinary practices.

Article written by Shelley Deng and Richard Belcher.

To find out more on how we can assist with professional disciplinary prosecutions please contact: Stephanie Bishop, Sally Carter, Tim Bain, or Richard May.