https://orcid.org/0000-0003-1300-7298
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ABSTRACT
This article examines disciplinary proceedings about sexual misconduct by lawyers. Sexual misconduct in a professional relationship is harmful and unacceptable and should result in immediate disciplinary action to protect victims, future victims and the public. However, there is no explicit offence of sexual misconduct in Australian disciplinary legislation regarding lawyers. Rather, sexual misconduct must be linked to the statutory offences. While the Australian Solicitors’ Conduct Rules guide the interpretation of the offences, there is only express reference to sexual harassment. We examined tribunal and court legal disciplinary cases from 2000 to 2020 across all Australian jurisdictions in which sexual misconduct had occurred. Decision makers typically only considered sexual misconduct sufficiently egregious to meet the required standard of a disciplinary offence when accompanied by a criminal conviction. The conduct was often portrayed as a result of character flaws, rather than harmful to victims and the public. Thus, decision makers failed to locate the behaviour in the wider incidence of violence against women. The profession’s failure to acknowledge sexual misconduct reflects narrow professional norms which do not robustly protect victims. Explicit acknowledgement of sexual misconduct in disciplinary proceedings is essential. These amendments would signify the importance, frequency and impact of sexual misconduct.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Australian Human Rights Commission, Everyone’s Business: Fourth National Survey on Sexual Harassment in Australian Workplaces (2018) 76.
2 Peta Cox, Violence against Women in Australia: Additional Analysis of the Australian Bureau of Statistics’ Personal Safety Survey, 2012 (Australia’s National Research Organisation for Women’s Safety 2015).
3 Nina Funnell, ‘Where the Legal System Silences Women’ Washington Post (8 May 2020) <https://www.washingtonpost.com/opinions/2020/05/08/metoo-around-the-world/#Funnell>.
4 Eliza Edwards, ‘Tentative Trial Date Set for Man Accused of Raping Brittany Higgins’ Nine News (18 November 2021) <https://www.9news.com.au/national/brittany-higgins-alleged-rape-tentative-trial-date-set-for-bruce-lehrmann-over-parliament-house-accusations>.
5 Australian Human Rights Commission, Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (November 2021).
6 Australian Solicitors’ Conduct Rules, 2011, 42.1.2, which have been adopted as the professional conduct rules for solicitors in South Australia, Queensland, New South Wales and Victoria Western Australia, Tasmania, and the Australian Capital Territory. The Northern Territory has its own conduct rules which do not include sexual harassment. Rules of Professional Conduct and Practice 2002. Note also the Legal Profession Uniform Conduct (Barristers) Rules 2015 mirror the Solicitor’s Conduct rules in relation to sexual misconduct and are included in all references to ‘Conduct Rules’ in this article.
7 Jennifer Moore, Donna Buckingham and Kate Diesfeld, ‘Disciplinary Tribunal Cases Involving New Zealand Lawyers with Physical or Mental Impairment, 2009–2013’ (2015) 22(5) Psychiatry, Psychology and Law 649.
8 Aotearoa Legal Workers’ Union, Employment Information Report (ALWU 2020) <https://www.alwu.org.nz/resources>.
9 Australian Human Rights Commission, Independent Review into Commonwealth Parliamentary Workplaces (Canberra, Australia 2021).
10 For a recent example, see Selene E Mize, ‘Disciplining Legal Practitioners in New Zealand’ (2020) International Journal of the Legal Profession 159.
11 Marie Bismark, David Studdert, Katinka Morton, Ron Paterson, Matthew Spittal and Yamna Taouk, ‘Sexual Misconduct by Health Professionals in Australia, 2011–2016: A Retrospective Analysis of Notifications to Health Regulators’ (2020) 213(5) Medical Journal of Australia 218; Caroline Taylor and Leigh Gassner, ‘Stemming the Flow: Challenges for Policing Adult Sexual Assault with Regard to Attrition Rates and Under-Reporting of Sexual Offences’ (2010) 11 Police Practice and Research 240.
12 Solicitors Regulation Authority <https://www.sra.org.uk/solicitors/standards-regulations/>.
13 Legal Profession Uniform Act 2015 (NSW); Legal Profession Act 2006 (ACT); Legal Profession Act 2007(QLD); Legal Profession Act 2006 (NT); Legal Profession Act 2007 (WA); Legal Profession Act 2007(Tas); Legal Practitioners Act 1981(SA).
14 Legal Profession Uniform Act 2015 (NSW), s 296, s 297; Legal Profession Act 2006 (ACT) s 386, s 387, s 388; Legal Profession Act 2007(QLD) s 418, s 419; Legal Profession Act 2006 (NT) s 464, s 465; Legal Profession Act 2007(WA) s 402, s 403; Legal Profession Act 2007(Tas) s 420, s 421; Legal Practitioners Act 1981(SA) s 68, s 69.
15 Allinson v General Council of Medical Education and Registration [1894] 1 QB 750.
16 Legal Profession Uniform Act 2015 (NSW), s 298; Legal Profession Act 2006 (ACT) s 389; Legal Profession Act 2007(QLD) s 420; Legal Profession Act 2006 (NT) s 466; Legal Profession Act 2007(WA) s 404; Legal Profession Act 2007(Tas) s 422; Legal Practitioners Act 1981(SA) s 70.
17 The latest version was promulgated in 2011. (n 6).
18 Sex Discrimination Act 1984 (Cth), s 28A.
19 Rule 4.1.4 (n 2).
20 Rule 12.2 (n 2).
21 Gino Dal Pont, ‘Ethics Column: The Lawyer-Fiduciary’ (2021) 48(5) BRIEF 45.
22 Stephen Tang, Tony Foley and Vivien Holmes, ‘Ethical Misconduct by new Australian Lawyers: Prevalence and Prevention’ (2020) 27(3) International Journal of the Legal Profession 245–67; Tara Sklar, Jennifer Moore and Marie Bismark, ‘Vulnerability to Legal Misconduct: A Profile of Problem Lawyers in Victoria, Australia’ (2020) 27(3) International Journal of the Legal Profession 269.
23 Legal Profession Uniform Act 2015 (NSW), s 299(1).
24 Legal Services Commissioner v PLP [2014] VCAT 793 at para 100; Quinn v Law Institute of Victoria [2007] VSCA 122 at para [30].
25 Ibid PLP para 105–120.
26 Council of the Law Society of the ACT v The Legal Practitioner E (Mamdouh Elmaraazey)(Occupational Regulation) [2013] ACAT 7.
27 Ibid para 100.
28 Legal Profession (Solicitors) Rules 2007 (ACT), Rule 1.1 ‘to treat his client fairly and in good faith, having due regard to the client’s position of dependence on the practitioner’.
29 Ibid para 102.
30 Ibid para 105.
31 Legal Practitioner v Council of the Law Society of the ACT [2014] ACTSC 9.
32 Ibid para 58.
33 Ibid para 60.
34 Ibid para 66.
35 Ibid para 291.
36 Victorian Legal Services Commissioner v Geron [2016] VCAT 1429.
37 Ibid para 240.
38 Ibid para 248.
39 Legal Services Commissioner v PLP [2014] VCAT 793.
40 Ibid para 9.
41 Ibid para 10.
42 Ibid para 170.
43 Ibid para 122.
44 Ibid para 95.
45 Legal Services Commissioner v Nguyen [2015] QCAT 211.
46 Ibid para 19.
47 Ibid para 28.
48 Ibid para 37.
49 Ibid para 38.
50 Ibid para 75.
51 Council of the Law Society of NSW v Flynn [2013] NSDW ADT 70.
52 Legal Services Commissioner v Flynn [2007] NSWADT 186.
53 Paula Baron and Lillian Corbin, ‘The Unprofessional Professional: Do Lawyers Need Rules?’ (2017) 20(2) Legal Ethics 155, 160.
54 Ibid.
55 Council of the New South Wales Bar Association v Franklin [2014] NSWCA 428.
56 Ibid.
57 Ibid para 16.
58 Ibid para 34.
59 Victorian Legal Services Commissioner v Edmondson [2019] VCAT 966.
60 Ibid para 36.
61 Five years exclusion from practice for the sexual assault of client’s partner, can be compared with being struck off the roll for dishonesty.
62 Australian Institute of Health and Welfare, Sexual Assault in Australia (2020).
63 Australian Human Rights Commission, Everyone’s Business: Fourth National Review of Sexual Harassment in Australian Workplaces (2018) 76.
64 Peta Cox, Violence against Women in Australia: Additional Analysis of the Australian Bureau of Statistics' Personal Safety Survey, 2012 (Australia’s National Research Organisation for Women’s Safety 2015).
65 International Bar Association, Us Too? Bullying and Sexual Harassment in the Legal Profession (United Kingdom, May 2019) 10.
66 Ibid.
67 Ibid 8.
68 Ibid.
69 Victorian Legal Services Board and Commissioner, Sexual Harassment in the Victorian Legal Sector: 2019 Study of Legal Professionals and Legal Entities (2019) vii.
70 Ibid 38.
71 Women Lawyers on Guard, Still Broken: Sexual Harassment and Misconduct in the Legal Profession: A National Study (United States 2020) 4–5.
72 Holly Johnson, ‘Why Doesn’t She Just Report It? Apprehensions and Contradictions for Women who Report Sexual Violence to the Police’ (2017) 29(1) Canadian Journal of Women and the Law 36; Pooja Sawrikar and Ilan Katz, ‘Barriers to Disclosing Child Sexual Abuse (CSA) in Ethnic Minority Communities: A Review of the Literature and Implications for Practice in Australia’ (2017) 83 Children and Youth Services Review 302.
73 Australian Institute of Health and Welfare (n 62) 10.
74 Elli Darwinkel, Martine Powell, and Stefanie J Sharman, ‘Police and Prosecutors’ Perceptions of Adult Sexual Assault Evidence Associated with Case Authorisation and Conviction’ (2015) 30(4) Journal of Police and Criminal Psychology 213.
75 Australian Institute of Health and Welfare (n 62) 5.
76 Bismark (n 11).
77 Mimoza Birinxhikaj and Marika Guggisberg, ‘The Wide-Ranging Impact of Sexual Harassment in the Workplace: An Australian Pilot Study’ (2017) 25(1) International Journal of Employment Studies 6.
78 Zaid Alrawadieh and others, ‘Sexual Harassment, Psychological Well-Being, and Job Satisfaction of Female Tour Guides: The Effects of Social and Organizational Support’ (2021) Journal of Sustainable Tourism 1.
79 Renate Zilkens and others, ‘Sexual Assault and General Body Injuries: A Detailed Cross-Sectional Australian Study of 1163 Women’ (2017) 279 Forensic Science International 112.
80 Calla Wahlquist, ‘“We’re All Gentlemen Here”: Australia’s Legal Profession Can Pretend No More’ The Guardian (4 July 2020) <https://www.theguardian.com/law/2020/jul/04/were-all-gentlemen-here-australias-legal-profession-can-pretend-no-more>.
81 International Bar Association, Us Too? Bullying and Sexual Harassment in the Legal Profession (United Kingdom, 2019) 9.
82 Mandi Deitz and others, ‘Examining Cultural, Social, and Self-related Aspects of Stigma in Relation to Sexual Assault and Trauma Symptoms’ (2015) 21(5) Violence Against Women 598.
83 Sara Bastomski and Philip Smith, ‘Gender, Fear, and Public Places: How Negative Encounters with Strangers Harm Women’ (2017) 76(1–2) Sex Roles 73.
84 Jennifer Schulz-Moore, Kate Diesfeld, and Christine Forster, ‘Understanding Client Vulnerability in the Disciplining of Legal Professionals in New South Wales’ (2019) 26(4) Journal of Law and Medicine 849.
85 Christine Parker, ‘Justifying the New South Wales Legal Profession 1976 to 1997’ (1997) 2(2) Newcastle Law Review 6.
86 Christine Parker, ‘Regulation of Ethics of Australian Legal Practice: Autonomy and Responsiveness’ (2002) 25(3) UNSW Law Journal 676.
87 Deborah Hartstein and Justine Rogers, ‘Professional Associations as Regulators: An Interview Study of the Law Society of New South Wales’ (2019) 22(1–2) Legal Ethics 22:1–2, 49, 59.
88 Ibid.
89 Ibid 72.
90 Elizabeth Shi and Freeman Zhong, ‘Addressing Sexual Harassment Law’s Inadequacies in Altering Behaviour and Preventing Harm: A Structural Approach’ (2020) 43 UNSW Law Journal 155, 156.
91 For example, see Ariz. Stat. Rev. Ann. §13-1419. For a detailed analysis of all US states’ legal approaches to sexual misconduct in correctional facilities, see Melissa A Kowalski and others, ‘An Analysis of Statutes Criminalizing Correctional Officer Sexual Misconduct with Inmates’ (2020) 100(1) The Prison Journal 126.
92 Susan Fortney, ‘Preventing Sexual Harassment and Misconduct in Higher Education: How Lawyers should assist Universities in Fortifying Ethical Infrastructure’ (2018) 103 Minnesota. Law Review. Headnotes 28; Rachel Piccirillo, ‘The Sexual Assault Epidemic in Education: A Comparative Look at the United States and Australia’ (2019) 42 Suffolk Transnational Law Review 201; Andrea Durbach and Rosemary Grey, ‘Grounds for Concern: An Australian Perspective on Responses to Sexual Assault and Harassment in University Settings’ (2018) Gender Based Violence in University Communities: Policy, Prevention and Educational Initiatives 83.
93 Helen Pringle, Monika Zalnieriute and Sandra Amankaviciute, Sandra, Addressing Harassment as Systemic Discrimination: Realising CEDAW’s Promise of Substantive Equality (12 July 2021). Submission to Inquiry into the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 <https://ssrn.com/abstract=3884875>; Australian Human Rights Commission. Everyone’s Business: Fourth National Survey on Sexual Harassment in Australian Workplaces. Australian Human Rights Commission, 2018.
94 Philip Bogdanoff, ‘Me Too: Sexual Misconduct in the Legal Profession’ (2018) 32 Ohio Law 12.
95 See Alice Woolley, ‘Regulating Lawyer-Client Sex’ SLAW, Canada’s Legal Magazine (3 July 2018) <https://www.slaw.ca/2018/07/03/regulating-lawyer-client-sex/>.
96 Ibid.
97 Solicitors Regulation Authority <https://www.sra.org.uk/sra/corporate-strategy/sra-enforcement-strategy/>.
99 Woolley (n 95) 2.
100 Ian Freckelton, ‘Trends in Regulation of Mental Health Practitioners’ (2008) 15(3) Psychiatry, Psychology and Law 415, 420.