A senior lawyer who “should have gone home” but instead stayed out socialising with junior staff has been fined $1000 by the Law Society after his “hand slipped”.

The practitioner, who wasn’t identified in a recently released decision, was found to have inappropriately touched two lawyers more junior than him while dancing following an end-of-year function.

He was said to have put his hand on a lawyer’s lower back and bottom.

A New Zealand Law Society’s Standards Committee said the lawyer “was not mindful of the ongoing and continual power imbalance present between himself and junior colleagues”.

He shouldn’t have been in a situation where he was “touching those colleagues repeatedly, whether accidentally or intentionally, particularly on areas of the body that others may consider inappropriate”.

However, it did note the lawyer’s early acceptance of unsatisfactory conduct, his significant financial loss through his retirement from the firm, and that he had taken steps to address his relationship with alcohol, when it assessed an appropriate fine.

The lawyer and his colleagues had celebrated the end of the year with an afternoon team function and, afterwards, had continued socialising into the evening, going to several bars. He and three junior lawyers had danced together as a group.

After two of the lawyers complained about the man’s conduct, the law firm had hired an investigator, who had recorded that a woman said the man put his hand on her bottom and lower back while they were on the dance floor, and she had felt the touching had been intentional.

She also said that he put his hand on her upper or lower back.

However, the man did not recall touching the woman’s bottom but remembered touching her lower back while they danced.

Separately, another junior lawyer said the man touched her lower back while on the dance floor.

The investigator concluded the touching was not intentional, nor intended to be sexual or inappropriate, and thought it was likely that his hand had slipped.

“The lack of movement, together with the light to medium pressure of the touch indicated that the contact was accidental or a result from the way the group was dancing,” the decision said.

“However, the investigator found that the behaviour breached the firm’s sexual harassment policy as the behaviour was unwelcome and had a detrimental effect on the individuals involved.”

However, the Standards Committee concluded there was “insufficient evidence that the conduct was sexual in nature”, and sexual harassment – as defined in the Conduct and Client Care Rules – was not established on the balance of probabilities.

While noting that “deliberately touching a woman on the bottom” was inherently sexual in nature, it accepted the touching was unintentional in this case.

A ‘commonplace and long-established issue’

It did, however, find that the lawyer’s conduct was inappropriate, and he should have appreciated both the power imbalance and need for professional boundaries.

“The committee considers inappropriate conduct by senior lawyers in similar contexts is unfortunately commonplace and a long-established issue in the profession,” the decision said.

“In order to eradicate such behaviour from the profession, it is incumbent on lawyers in senior positions to be mindful of the appropriateness of their interactions with colleagues junior to them and how they may be perceived even in what feels to be a friendly group context.”

The lawyer accepted his behaviour was inappropriate and amounted to unsatisfactory conduct.

The Standards Committee noted that as a senior member of the law firm, the lawyer should have avoided a situation where the established touching could occur.

“In his own acknowledgment, he should not have been out with the junior team and should have gone home.”

It also said that while a finding of sexual harassment was not made in this case, it should not minimise the women’s experiences, and hoped they felt their concerns had been taken seriously and addressed appropriately.

It was noted that inappropriate conduct within the profession was unlikely to improve without lawyers being willing to raise their concerns, but that doing so could be difficult.

The Standards Committee assessed the man’s behaviour as in the “low to middle range” for unsatisfactory conduct, and could warrant a fine of $3000 to $4000.

However, there were several mitigating factors, including his responsible conduct during the investigation and standards committee process – and that he’d retired, accepted his conduct was unsatisfactory, and sought help with his alcohol use.

The man was censured and ordered to pay a fine of $1000.

The Law Society published the anonymised decision, considering that the case presented “an opportunity for education to the profession in the evolving areas of professional boundaries and, importantly, how these must be strictly managed when socialising in the context of firm functions”.

Hannah Bartlett is a Tauranga-based Open Justice reporter at NZME. She previously covered court and local government for the Nelson Mail, and before that was a radio reporter at Newstalk ZB.

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