In mid-January, the NZ Lawyers and Conveyancers Disciplinary Tribunal suspended former Russell McVeagh partner James Gardner-Hopkins from practice for two years for sexual misconduct.

Although the tribunal’s liability decision promised a different kind of profession, the penalty decision confirms that the status quo prevails. Perpetrators of sexual misconduct won’t be properly held to account, meaning the profession remains a relatively safe space for sexual predators.

Background

In December 2015, Gardner-Hopkins sexually assaulted four summer clerks and had inappropriate sexual relations with a fifth (National Standards Committee No. 1 v Gardner-Hopkins [2021] NZLCDT 21).

As a result of the latter event, he was removed from the Russell McVeagh partnership in early 2016 with a ‘glowing’ send-off to the bar. Four of the women complained to NZLS in 2018.

The tribunal found the high threshold for misconduct under the Lawyers and Conveyancers Act 2006 was met. The tribunal noted the ‘laddish’ atmosphere of Gardner-Hopkins’ team and his ‘sexualised and objectified view of women’.

The liability decision marked a shift in how we perceive sexist violence in the profession: the tribunal believed the victims; it condemned the actions of the perpetrator in harsh terms; it highlighted the damage caused to the women and bystanders; and it located the source of the violence as structural, arising from (although not in the tribunal’s terms) a patriarchal culture. The liability decision has done important work in setting the standard for how we view sexist violence in the profession.

It is with surprise and disappointment, then, that the tribunal handed down a penalty of suspension rather than strike off. In my opinion, the penalty decision (National Standards Committee No. 1 v Gardner-Hopkins [2022] NZLCDT 2) got several things wrong.

 ‘Natural sympathy’ for Gardner-Hopkins

• ‘very significant consequences’
• removal from a prestigious and lucrative partnership is a very significant consequence’
• a significant drop in income’
• ‘significant reputational and emotional toll’
• ‘has lost many professional associations, clients’
• almost entirely lost the collegial support of his profession’

These sound more like descriptions of the consequences faced by the women. One left New Zealand, one left the profession another changed her area of practice to avoid Gardner-Hopkins, and another felt her career had been adversely affected. Leaving Russell McVeagh meant no prospect of a lucrative partnership or, for the complainant who left the law entirely, no law partnership ever.

Professional isolation also accurately describes the profoundly lonely experience of being a workplace sexual abuse/assault survivor. It is already very difficult being a lawyer – now imagine processing trauma in an environment where you are constantly reminded of it. Then imagine your trauma is playing out publicly in multi-year proceedings in which you must keep the memory of it alive to get justice.

But these are not the words the tribunal used to describe the effects on the women. These were the words used to explain the effect of the events on Gardner-Hopkins.

Not mitigation

Losing a ‘lucrative partnership’ to practise at the bar should not be a mitigating factor.

The tribunal considered loss of a Russell McVeagh partnership and the associated drop in income to be mitigating factors as consequences ‘already incurred’.

But practising at the bar carries the prestige of being an expert advocate, is a pool from which Queen’s Counsel and judges are drawn and often delivers easy six-figure earnings. Moreover, as the tribunal noted, ‘a man of his talents’ would be able to obtain ‘gainful employment’ outside of law.

Why a side-step into an equally prestigious and lucrative part of the profession or the wider industry was considered a ‘consequence’ and therefore a mitigating factor is unclear. Gardner-Hopkins, even if struck off, would have access to the kind of work and income that many New Zealanders can only dream of.

Incorrect assessment of future risk

The tribunal discussed changes made by Gardner-Hopkins and the future risk he poses as mitigating factors. But much of Gardner-Hopkins’ rehabilitation took place only because of the disciplinary proceedings.

He apologised to the victims only during the penalty hearing. His own psychologist gave evidence that there was “considerable work to be done to address … deeper core psychological issues”. And he failed to work with a therapist between 2018-2020, including between the liability and penalty hearings.

While rightly noting any changes had taken place under threat of strike off, the tribunal ultimately concluded he had taken positive steps to change, recording also there had been no further complaints about him since these events took place. I do not agree with this assessment.

First, it is unclear how, having noted the risk of practising alone for a lawyer trying to learn good habits, the tribunal came to reference Gardner-Hopkins’ sole practice twice in discussing mitigating factors.

Second, the tribunal described Gardner-Hopkins’ current life circumstances (a new partner and baby) as being a ‘protective factor’. But men of all personal circumstances – and sometimes especially the most family-oriented – commit sexual violence and abuse.

Third, the tribunal accepted Gardner-Hopkins’ failure to face his conduct was unhelpful. It is difficult to understand, then, why it assessed any of the changes made by him as ‘positive’. Certainly he made changes, but the nature and timing of the steps taken indicates a man currently unwilling or unable to change.

Finally, it was wrong to take into account the lack of further complaints following the Russell McVeagh events. Most victims do not complain. The process involves re-traumatisation and an inability to close a harrowing chapter of one’s life. No complaints simply means none have been lodged, not that there has been no conduct to complain of.

Unfortunate consistency considerations

The tribunal accepted Gardner-Hopkins’ submission that the penalty should be less serious by comparison to two other cases of sexual misconduct.

It seems this was primarily driven by the short timeframe in which the misconduct took place and the fact that it was ‘shorter in duration’ in respect of each victim. But even very brief episodes of sexual misconduct can (and did, in this instance) cause life-long consequences. That misconduct is brief does not necessarily make it less serious.

Suspension won’t help much

The list of behavioural concerns the tribunal highlighted for the Practice Approval Committee that will manage Gardner-Hopkins’ re-entry into the profession has a glaring omission: a sexist worldview.

It covers alcohol, boundaries, mentorship and personal support. But, people can drink, have poor boundaries, have no mentors and fail to get support and still not sexually abuse and assault women. Targeting these four behavioural concerns alone will not cure the danger Gardner-Hopkins poses to junior women. Moreover, there were no conditions recommended to prevent him from working with junior women either during his suspension or after. We should not be leaving the protection of junior women in the hands of someone who has already harmed them.

No compensation

The tribunal had the option to order compensation for the victims. Instead, it chose to order payment of the committee’s and tribunal’s costs. The failure to reference the financial costs borne by the victims (such as therapy and legal advice) would certainly make future complainants reconsider whether a multi-year process of re-traumatisation is worth it.

Conclusion

In my opinion, Gardner-Hopkins should have been struck off. He is not currently fit and proper. If he is able to rehabilitate himself in the coming years, he can apply for re-admission. Two years is too short a time to achieve rehabilitation for someone who is a mature adult and who has only recently begun (grudgingly) to comprehend the gravity of his actions.

If I were a member of the public, this decision would knock my confidence in the legal profession. If I were a new or aspiring lawyer, it would do little to reassure me the profession is a safe space.

The tribunal’s penalty decision misunderstands the severe life-long consequences of sexual assault and abuse, the source of the practitioner’s behaviour and the nature and extent of the rehabilitation required.

And the decision ultimately communicates that technically competent but integrity-challenged lawyers are above the law (while other equally technically competent lawyers who comply with the law, usually women, languish beneath them).

In the absence of real consequences for those who abuse and harass their colleagues, little if anything will change in our profession. But, there is hope if the standards committee, with the agreement of the women, decides to appeal.

Ana Lenard is a dispute resolution lawyer and legal academic. The opinions are her own and do not necessarily reflect those of ADLS.