The barrister's behaviour and its characterisation are "concerning," the WLANSW president says
An unnamed NSW barrister has been charged with unsatisfactory professional conduct by the Civil and Administrative Tribunal NSW for his “sexually inappropriate” behaviour towards an assistant clerk for a barristers’ chambers during a 2017 function.
According to the tribunal, the event took place as part of the New South Wales Barristers Clerks' Conference and was attended by barristers’ clerks and invited barristers. During the dinner, the barrister performed a “greeting ritual” which parodied sexual activity with another barrister at the table, before taking hold of the back of the clerk’s head, pushing it forward, and saying “suck my d***.”
Subsequently, the assistant clerk approached the clerk of the chambers she worked for, and reported the incident, saying that she “felt angry, upset, embarrassed and humiliated,” the tribunal said.
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In its application against the unnamed barrister, the Council of the NSW Bar Association deemed the barrister’s behaviour as amounting to professional misconduct based on the NSW Legal Profession Uniform Law, which provided a definition of professional misconduct as “unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.”
The barrister admitted to aspects of the incident cited in the council’s application upon reviewing CCTV footage of the event and the NSW Bar Association’s evidence. He confessed that he had been intoxicated during the dinner, and described his memory of the evening as “incomplete.” While he expressed regret for his behaviour and apologised to the assistant clerk for “making a statement which caused her offence” and causing her discomfort, the barrister denied uttering the phrase ““suck my d***.”
The Civil and Administrative Tribunal NSW called the barrister’s behaviour “poorly judged, vulgar and inappropriate,” in its 4 March decision, which followed a first-stage hearing that took place last December. The tribunal said that the barrister failed to consider the assistant clerk’s “likely reaction to his actions.”
“His level of intoxication was also inappropriate at a function connected with the practice of the law,” the tribunal said.
Nonetheless, the tribunal ruled that the barrister’s act was “not ‘a sexually inappropriate advance’ or any kind of advance at all,” saying that the barrister was including the assistant clerk in the “horseplay” that he and a fellow barrister were engaging in during the event. Thus, the barrister’s conduct did not amount to the more severe charge of professional misconduct.
Instead, the tribunal judged the barrister’s behaviour as falling under unsatisfactory professional conduct as it violated the Legal Profession Uniform Conduct (Barristers) Rules 2015. His conduct, the tribunal said, was “likely to bring the legal profession into disrepute.”
Following the tribunal’s decision, Renée Bianchi, president of the Women Lawyers Association of NSW (WLANSW), called the barrister’s behaviour and its characterisation “concerning.”
“Such behaviour is appalling. Such behaviour makes me angry. The victim was left feeling angry, humiliated and embarrassed. No one should be left feeling that way,” Bianchi said in a statement. “There is no place for sexual harassment in the legal profession or indeed any workplace. There needs to be great cultural change in the legal profession.”
Nonetheless, Bianchi acknowledged that the reporting of behaviour like the barrister’s was “a step in the right direction.”
“Whilst reports like this are disappointing in so far as such behaviour is still occurring, it does demonstrate that such unacceptable behaviour is being called out,” she said.
Bianchi emphasised the WLANSW’s active stand against sexual harassment in the industry, and said that the organisation would “continue to advocate for change so that the legal profession is one which is a safe place of work for all.”
The Civil and Administrative Tribunal NSW has not yet determined the disciplinary orders to be issued against the barrister. The tribunal granted the Council of the NSW Bar Association a response period ranging from the date of the decision to 9 April. A Stage 2 hearing will be held after 9 April.
The identities of the parties involved in the incident have been protected under a nondisclosure order. Solicitors from Hicksons Lawyers acted for the council, while solicitors from Moray & Agnew acted for the unnamed barrister.