A New South Wales barrister has been found guilty of unsatisfactory professional conduct for sexually harassing a young female solicitor (Ms X) in a court conference room.
Background
On 5 June 2017, Mr Raphael (the respondent) and Ms X appeared in the Supreme Court of New South Wales for a hearing. The Judicial Registrar directed Ms X to obtain further instructions and the hearing was adjourned. Ms X was sitting in a conference room alone with the door closed while she obtained information from her supervising solicitor.
The respondent entered the conference room, and, after referring to Ms X’s wedding ring, said words to the effect, ‘Won’t your husband get jealous because we are spending so much time together. He will think something is going on.’
During her conversation with the respondent, Ms X became visibly upset and began to cry. The respondent placed his arm on Ms X’s shoulder for between 10 and 20 seconds and kissed the top of her head. He then said, “Don’t worry you poor thing”.
At the time, Ms X was a junior solicitor and the respondent was 78. He had first been admitted to practice in 1965.
Issues
The respondent admitted that the physical contact, together with his two comments contravened rules 8, 123(b) and 123(c) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (Barristers Rules),1 and thus amounted to unsatisfactory professional conduct. The respondent submitted that he should be cautioned rather than reprimanded.
The issues before the NSW Civil and Administrative Tribunal were:
- Whether the respondent’s behaviour constituted unsatisfactory professional conduct, and
- What orders were appropriate.
Issues considered
With respect to the first issue, the tribunal referred to the definition of ‘sexual harassment’ in section 22A of the Anti-Discrimination Act 1977 (NSW) (the Act)pursuant to section 125 of the Barristers Rules.
The tribunal concluded that, by putting his arm around Ms X’s shoulder and kissing her on the head, the respondent had engaged in conduct that constituted sexual harassment under the Act. The tribunal found that the “unsolicited act of physical intimacy”, together with the respondent’s comment about Ms X’s husband being jealous, amounted to unwelcome conduct of a sexual nature.2
Regardless of the respondent’s intentions, his actions objectively had “sexual undertones and involved an overt act of physical intimacy”.3 The tribunal noted that there was a “vast power imbalance”, as Ms X was a “young, inexperienced solicitor”, and the respondent was an “extremely experienced older barrister”.4 A reasonable person, having regard to all the circumstances, would have anticipated that Ms X would be offended, humiliated and intimidated by the respondent’s conduct.
The tribunal further considered that the respondent’s conduct amounted to ‘workplace bullying’ defined in section 125 of the Barristers Rules.5 ‘Workplace’ is not defined in the Barristers Rules but both the respondent and Ms X were working in the Supreme Court building.
Moreover, the respondent’s conduct, while not dishonest, was “otherwise discreditable to a barrister” and “likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute”, in breach of rule 8.6 Accordingly, the tribunal found the respondent guilty of unsatisfactory professional conduct.
With respect to the appropriate orders, the tribunal ordered that the respondent be reprimanded and undergo at his own cost, eight hours of education and counselling. The tribunal accepted the respondent’s evidence, supported by several referees who knew him well, that he did not intend to distress, upset, humiliate or embarrass Ms X.
However, in light of the extensive media coverage about sexual harassment in the legal profession and having been spoken to by colleagues about similar remarks he had made in the past, the tribunal noted that the respondent’s initial “complete lack of understanding of the nature and potential effect” of his behaviour was of “considerable concern”.7
The tribunal further stated that the respondent “needs to understand that this kind of conduct is not perceived by the vast majority of women as being comforting, chivalrous or even vaguely humorous. Sexual harassment of this kind has the potential to adversely affect a victim’s mental health and to dissuade her from continuing a career in the law.”8
Meagan Liu is a Law Graduate in the QLS Ethics and Practice Centre. This article has been approved by Grace van Baarle, Manager, and Stafford Shepherd, Principal Ethics and Practice Counsel.
Footnotes
1 Rule 8 of the Barristers Rules provides that “A barrister must not engage in conduct which is (a) dishonest or otherwise discreditable to a barrister, (b) prejudicial to the administration of justice, or (c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute”. A similar provision can be found in the Australian Solicitors Conduct Rules 2012 (Qld) (ASCR) rule 5. Rule 123 of the Barristers Rules provides that “A barrister must not in the course of practice, engage in conduct which constitutes… (b) sexual harassment, or (c) workplace bullying”. This provision is similar to ASCR rule 42.
2 Council of the New South Wales Bar Association v Raphael [2021] NSWCATOD 44,[20] (Raphael).
3 Ibid [23].
4 Ibid [22].
5 Barristers Rules s125 defines ‘workplace bullying’ as “unreasonable behaviour that could reasonably be expected to intimidate, degrade, humiliate, isolate, alienate, or cause serious offence to a person working in a workplace”.
6 See Barristers Rules rule 8.
7 Raphael (n2) [40], [51].
8 Ibid [52].
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