Bottom-slapping, back-touching lawyer censured
The lawyer, a partner at an unnamed firm, urged a New Zealand Law Society standards committee to consider his behaviour in context, stating that more freedom should be allowed for conduct at an out-of-office social function than during the usual working day.
However, the committee found his conduct was disrespectful and discourteous towards the employees, who were both junior to him.
According to a recently released decision, the behaviour occurred in the context of socialising by some staff members after a team function arranged by their firm.
The partner generally accepted that some of his behaviour was inappropriate, that he had blurred professional boundaries, and had consumed excess alcohol that night. However, he did not see that as a breach of professional standards or an abuse of power towards either colleague. 'An innocuous courtesy'
According to the standards committee's decision, the lawyer submitted that slapping the male employee on the bottom was "paying [him] respect" and "blokey", and that he was behaving as a friend rather than a partner in the firm.
"The committee sees absolutely no circumstance in which physical contact of this type towards any colleague could be described as respectful behaviour.
"The committee also considers this behaviour risks perpetuating a workplace culture that the profession is at pains to transform in relation to interactions between colleagues."
The lawyer accepted that he placed his hand on the female employee's lower back as she passed through a door.
In his view, doing so was "an innocuous courtesy", and he intended "nothing sexual or sinister" by it.
The committee did not ascribe any sexual intent to the lawyer's actions, but found it was clear that the female employee was uncomfortable at the time and afterwards.
The committee considered that physical touch on the lower back carried an element of intimacy and overfamiliarity that may reasonably have been interpreted as inappropriate by her or a reasonable observer.
While there were some contexts in which this would be acceptable to both parties involved, it was likely to be perceived as flirtatious and inappropriate in others, the decision said.
The lawyer's evidence was that she approached him to show him a team photograph on her phone, and he assumed her reason for doing so was for him to comment on it.
Referring to the photo, the lawyer commented that the woman was "beautiful" and said that, in that context, it was not intended to be disrespectful or discourteous.
The committee accepted that the woman was anticipating a comment on the group photo, but not that she was inviting a comment on her own appearance to the exclusion of others (when there was nothing to draw attention to her over any other team member in the photo).
The lawyer's contention that his comment was respectful and courteous in the context was not accepted. Disrespectful and discourteous
The committee considered it was more likely than not that the lawyer's judgment about what was appropriate was impaired.
"When coupled with his admitted blurring of professional boundaries, his consumption of alcohol meant he was not well placed to exercise the judgment required of him."
While the committee did not identify a specific abuse of any power imbalance, it said that didn't mean an imbalance did not exist "by virtue of their roles as partner and junior members of staff".
The committee considered that the team's social function, including ongoing socialising that occurred after the formal portion of the function, was a professional, collegial occasion.
It found that the lawyer's conduct across the three incidents demonstrated conduct towards both employees that was disrespectful and discourteous.
It was generally conduct "that would be regarded by lawyers of good standing as being unacceptable and unprofessional".
Due to mitigating factors present in the case, the committee said it did not consider it necessary to impose any penalty.
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