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Ethics: Lawyers and sexual harassment

Ethics: Lawyers and sexual harassment

By Gino Dal Pont

Ethics Professional Reputation 

Snapshot There is an increasing societal spotlight on the inappropriateness of sexual harassment. Sexual harassment by lawyers in the workplace is capable of generating a disciplinary sanction. The same applies, arguably with even greater force, when harassment is directed at clients. In a profession that has often been branded a boys’ club, it is not surprising that sexual harassment has been an issue. The first few days of 2016 saw the topic of sexual harassment grab headlines. It stemmed from the conduct of a male cricketer in a post-match interview with a female reporter broadcast live on national television. The cricketer relayed his pleasure in meeting the reporter (to see her “eyes for the first time”), before stating that “hopefully we can win this game and we can have a drink after”. The reporter was taken somewhat aback by these remarks, to which the cricketer responded “don’t blush, baby”.1 What some perceived as little more than banter – there was, after all, nothing lewd or overtly sexual regarding the cricketer’s remarks – generated widespread media criticism. The prevailing view was that the cricketer’s remarks constituted sexual harassment, and the resultant media storm speaks of an increasing (and justifiable) sensitivity to harassment. The groundswell was already there, in any case, reflected in statutory proscriptions on sexual harassment.2 In a profession that has more than once been branded a boys’ club, and to which women’s admission in Australia had to await the early 20th century,3 it is hardly unsurprising that sexual harassment has been an issue. That professional rules now include an explicit proscription on sexual harassment4 speaks to this, independent of empirical data. It follows that, aside from legal consequences, sexual harassment by lawyers clearly has a professional disciplinary dimension. The point is illustrated by a 2014 case before VCAT which suspended a lawyer who had repeatedly harassed a female law graduate who was undertaking practical legal training at his practice.5 While the harassment occurred in private, it was much more explicit in nature than that perpetrated by the cricketer above. Not only did it involve lewd language, the lawyer literally begged (and pressured) the complainant for sex over and over again. While the Victorian Court of Appeal reduced the duration of the suspension from eight months to two months, it upheld the professional misconduct finding, and described the lawyer’s subsequent termination of the complainant’s employment by insinuating unsupported concerns over irregularities as “despicable unprofessional conduct”.6 If sexual harassment of an employee can amount to professional misconduct, there is no doubt that the same applies to harassment directed at clients. There is older Victorian disciplinary tribunal authority to this effect. A practitioner who sexually propositioned three female clients on three separate occasions, detaining them in his locked office and on two such occasions masturbating in front of them, was ordered not to apply for a practising certificate for 15½ months and until he had demonstrated his fitness to practise.7 The fiduciary backdrop to the lawyer and client relationship, while it may not provide an avenue for civil relief for harassment, nonetheless serves to accentuate the seriousness of any such behaviour. That a client ostensibly reciprocates to the lawyer’s advances is, in any event, no guarantee of a genuine consent to sexual involvement. The client’s emotional state at the time, coupled with the lawyer’s likely dominant position, conspires against this. If American disciplinary case law is any guide, there is scope for disciplinary sanction even in the face of “consensual” lawyer-client sexual relations.8 The upshot is that while, as a Queensland judge recently observed, “[s]olicitors are no less human than other members of the community”,9 this in no way justifies lawyers engaging in sexual harassment in a professional environment. n Gino Dal Pont is Professor, Faculty of Law, University of Tasmania. 1. See (5 January 2016). 2. See, for example, Equal Opportunity Act 2010 (Vic) Pt 6. 3. See Mason, Lawyers Then and Now – An Australian Legal Miscellany (Federation Press, 2012), pp131-133. 4. See Legal Profession Uniform Australian Solicitors’ Conduct Rules 2015 (Vic) r 42. 5. Legal Services Commissioner v PLP [2014] VCAT 793. 6. PLP v McGarvie [2014] VSCA 253 at [87]. 7. Victorian Lawyers RPA v Constantinou, Legal Profession Tribunal Proceeding No T0368 and T0410 of 1998. 8. See, for example, Iowa Supreme Court Attorney Disciplinary Board v Monroe (2010) 784 NW 2d 784 (albeit against the backdrop of a rule-based prohibition). 9. Legal Services Commissioner v Mould [2015] QCAT 440 at [50] per Carmody J.

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