In February’s edition of LawNews I wrote about what the Lawyers and Conveyancers Disciplinary Tribunal got wrong in its penalty decision relating to James Gardner-Hopkins’ case and why a two-year suspension was insufficient. The background to the case and the relevant facts are set out in that article, and in James Gardner-Hopkins penalty decision [2022] NZLJ 79.

The Standards Committee appealed the tribunal’s penalty decision, and the judgment was released on Wednesday. Although increasing Gardner-Hopkins’ suspension period to three years, the High Court unfortunately did not agree with the Standards Committee that strike-off was merited. The court missed an opportunity to send a strong message about sexual misconduct in the legal workplace.

What the High Court got right

One of the criticisms of the tribunal’s penalty decision was the failure to understand that even short episodes of sexual misconduct can have profound consequences. The High Court accepted that the brevity of sexual misconduct does “little to mitigate its seriousness”. The court also strongly rejected the practitioner’s argument that the consensual nature of one of the incidents was relevant.

The High Court correctly concluded that Gardner-Hopkins “breached the duty of care and trust owed to [the woman] as a young employee of his firm”. He acted in an “entirely inappropriate” way and “should have appreciated the considerable power imbalance”

Another critique of the penalty decision was that it exhibited too much sympathy for Gardner-Hopkins vis-à-vis the women and that it incorrectly categorised career and financial consequences as mitigating factors. The court agreed with the Standards Committee that the tribunal erred when it categorised financial and professional consequences suffered by Gardner-Hopkins as mitigating factors.

As the High Court rightly concluded, “[t]he fact that Mr Gardner-Hopkins was required to resign from the Russell McVeagh partnership, and lost connection with the profession, was an inevitable consequence of his actions”. Such negative consequences are not factors that will be considered in mitigation in disciplinary proceedings, the primary purpose of which is protection.

Referring to the practitioner’s living costs of $144,000 a year after tax, the High Court left intact the tribunal’s decision declining to view Gardner-Hopkins’ financial position as a mitigating factor: “[a] budget at that level does not suggest dire circumstances”. Importantly, the court held that financial position is not a mitigating factor in lawyers’ disciplinary proceedings. The High Court agreed with the tribunal that a recent Standards Committee case addressing similar conduct was wrongly decided. But the court rightly went a step further than the tribunal and disregarded it.

The court also disregarded the Daniels and Horsley cases which were determinative comparators in the tribunal’s penalty decision. “There has been a profound societal change in attitude towards sexual harassment over the last decade and that shift in perception is important when considering penalty in light of the need to maintain the confidence of the public in the legal profession.”

Concluding that Gardner-Hopkins’ misconduct was serious and “is wholly unacceptable in the legal profession”, the court – in agreement with the tribunal – adopted strike-off as the starting point. The court also agreed with the Standards Committee’s submission that strike-off should not be reserved for the worst possible case.“[T]here may be variations or different examples of serious misconduct, all of which could require a very serious sanction, be it strike-off or the maximum period of suspension”.

What the High Court got wrong

Unfortunately, the High Court downgraded the importance of evidence about the toxic and misogynistic culture of the team led by Gardner-Hopkins at Russell McVeagh.

Accepting that such a workplace culture is no longer acceptable, the High Court concluded that it ultimately did not “significantly inform the seriousness of the conduct giving rise to the charges”. But it was rightly accepted by the tribunal that this evidence indicated Gardner-Hopkins’ conduct was not totally out of character and was therefore properly treated as an aggravating feature. It is normal and desirable to factor past conduct into an analysis of aggravating factors.

Like the tribunal, the High Court accepted Gardner-Hopkins’ submission that he had taken and was continuing to take appropriate steps to address future risk, including his alcohol dependency. But the self-reported evidence at the penalty hearing was that he was still drinking alcohol at the level of Ministry of Health guidelines (being up to 15 standard drinks a week).

The High Court also relied on the fact that the incidents were closely connected in time, when Gardner-Hopkins had difficulties in his personal life. The court noted that no further complainants had come forward. “[G]iven the high-profile nature of the proceeding, it is likely they would have done if such incidents had occurred”. This statement contains dangerous assumptions about the choices victims make. There are examples of more victims coming forward with the publicity of certain cases, but this does not necessarily translate into more formal complaints. Victims would have to be willing to be in the public eye for years in a case like this. Those two factors alone would be chilling for people trying to move on with their lives.

The court also cited references from a “number of women” who confirmed that the practitioner had “acted appropriately towards them”. Gardner-Hopkins necessarily would have behaved appropriately towards some, even most, women in the workplace over the years: superiors, clients, equals – any women with whom it would be beneficial to be on good terms. We do not know who these references are from and how the practitioner was connected to these women. These references do not speak to the specific risk Gardner-Hopkins poses to women in the workplace where there is a power imbalance.

The court admitted and relied on fresh evidence from a psychologist who considered Gardner-Hopkins’ motivation to change was now intrinsic, no longer resulting from the pressure of the proceedings. The court also unfortunately discounted the relevance of Gardner-Hopkins’ past conduct (creating a sexualised work environment) to the issue of future risk.

Accepting that Gardner-Hopkins took too long to accept responsibility for the incidents, the court ultimately concluded, referring to the apology given at the penalty hearing, that “there is now some insight on Mr Gardner-Hopkins’ part of the impact of his actions on the young women”.

As I have previously argued, characterisations such as these are too generous. “Gardner-Hopkins acted with a lack of remorse throughout the proceedings and well past the eleventh hour”. The practitioner’s points on cross-appeal reflecting an ongoing lack of understanding of the nature and gravity of the misconduct.

In its analysis of penalty, and echoing the tribunal, the court concluded that “[a]part from the misconduct towards the young women there is no suggestion that Mr Gardner-Hopkins is anything other than a competent practitioner”. Is it right that the two can neatly be cabined in this way? A “competent” practitioner who has trouble complying with legal obligations is somewhat of an oxymoron.

Relying, amongst other things, on “absence of any further complaints and his past clear disciplinary record”, the court’s view was that “the risk [of] similar conduct in future has considerably diminished”.

This was the significant factor that led to a penalty short of strike off being imposed by the court. As I have previously argued, it is wrong to take into account the lack of further complaints. Complaining is traumatic and unlikely to be worth it absent real consequences. “[N]o complaints simply means none have been lodged, not that there has been no conduct to complain of.

Conclusion

Deftly side-stepping some of the tribunal’s unfortunate analysis, the High Court introduced some unhappy ideas of its own.

It is difficult to understand the court’s decision. Having accepted that “Gardner-Hopkins seriously breached the trust that was imposed on him, and his actions undoubtedly affected [the women’s] futures in the law”, and that the incidents have “had a significant effect on each of the victims, why should the practitioner’s future be preserved and protected in the absence of specific and sufficient evidence that he no longer poses a risk to certain women in the legal workplace?

In my opinion, Gardner-Hopkins should have been struck off. He is not currently fit and proper. ■

■ Ana Lenard is a dispute resolution lawyer