The man whose offending became the focal point of the New Zealand legal profession’s MeToo scandal has been suspended from practice for two years
The former Russell McVeagh partner found guilty of misconduct after groping summer clerks has avoided being struck off as a lawyer, instead receiving a two-year suspension from the profession.
But the disciplinary tribunal which determined James Gardner-Hopkins’ punishment has warned him it is “extremely doubtful” he will regain his practising certificate if he fails to address the underlying causes of his behaviour during that time.
In June last year, the New Zealand Lawyers and Conveyancers Disciplinary Tribunal found James Gardner-Hopkins guilty of six charges of misconduct related to his behaviour towards four summer clerks at an out-of-office Christmas function, and consensual events with a fifth summer clerk at a “team” Christmas party held at the lawyer’s home.
In 2018, Newsroom revealed a group of summer law clerks in Wellington had been subjected to sexual assault and harassment during their time at the law firm two summers earlier – with the reporting leading to a damning review into Russell McVeagh’s handling of the allegations and marches to protest sexual harassment in the workplace.
During a week-long tribunal hearing, one woman spoke of feeling like “a field mouse being hunted by a tiger” at the firm Christmas function, while another witness said the clerks had been treated as “broken and hysterical” when they approached Russell McVeagh with their concerns.
In a final decision on the punishment for Gardner-Hopkins, the tribunal said it had to consider the “proportionate and fair to be imposed six years after the events in question”, and whether he had made sufficient lifestyle changes to remain on the roll of barristers and solicitors.
It accepted that strike-off had to be the starting point given he had been found unfit for practice at the time of the offending. Aggravating factors included the fact he had indecently touched four different women, as well as the power imbalance between Gardner-Hopkins and his victims, who considered their summer clerkship to be “a three-month-long job interview”.
“As one of them explained during the liability hearing, the fact that they were not safe from a partner led to a feeling that they could not be safe anywhere in the workplace. The effect on these young women’s careers was far-reaching. Some left the profession altogether, whilst others changed to different areas of the law.”
Among the mitigating factors was the significant consequences Gardner-Hopkins had faced when the allegations came to light, including his removal from “a prestigious and lucrative partnership” and the reputational and emotional toll the affair had taken on him.
“The enormous public interest and publicity surrounding this case, for over three years, has meant that, despite suppression orders, Mr Gardner-Hopkins has had the ignominy of being the ‘face of’ sexual harassment in the legal profession.
“He acknowledges that he only has himself to blame for that, but has lost many professional associations, clients and been “uninvited” from professional events. He has, it would seem, almost entirely lost the collegial support of his profession, over a long period.”
He had sought psychological support when his conduct was first revealed and then during the tribunal process, and had taken positive steps to reflect on and deal with the factors which had led to his behaviour – “albeit belatedly, and with a little less enthusiasm then we might have wanted to see”.
While Gardner-Hopkins’ lawyer had suggested his client could face financial ruin if he was unable to practise law, the tribunal did not believe his plight was as dire as suggested, adding: “It would be surprising if a man of his talents could not obtain gainful employment were he to be prohibited from practising law.”
It was difficult to find previous cases which mirrored his offending, as two other cases of sexual misconduct which resulted in three-year suspensions had involved prolonged behaviour and breaches of fiduciary duties to a client.
Gardner-Hopkins’ proceedings had also come against the background of other lawyers behaving “in similarly reprehensible ways” yet facing lesser consequences away from the public eye, including one standards committee decision which the tribunal said was “plainly wrong”.
In a formal censure directed towards Gardner-Hopkins, the tribunal said: “Your conduct has brought shame on yourself and disrepute to your profession.”
The tribunal said a suspension of two years was a proportionate and proper penalty, which would also give Gardner-Hopkins the opportunity to reflect and rehabilitate himself.
Problematic alcohol consumption, poor understanding of professional boundaries, a loss of mentorship and a failure to prioritise his therapeutic needs and personal support were among the issues he would need to show he had addressed at the end of his suspension period.
“In our view, without such evidence, it is extremely doubtful that a practising certificate would be reissued.”
In a formal censure directed towards Gardner-Hopkins, the tribunal said: “Your conduct has brought shame on yourself and disrepute to your profession.”
His recent acceptance of and apology for his offending had gone some way to restoring confidence in his role as a lawyer, but there was more work to be done to monitor his behaviour and rehabilitate himself with his colleagues.
“You will undoubtedly be aware of how close you came to losing your career entirely. Any further misconduct would almost certainly lead to your removal from the legal profession.”
Gardner-Hopkins was also ordered to pay $64,630 in legal costs incurred by the standards committee which made the case against him, and to reimburse the Law Society for $43,378 in costs over its role in proceedings.
Law Society responds
Responding to the tribunal’s decision, Law Society president Tiana Epati said that while the standards committee had sought a more severe penalty, the two-year suspension was still significant.
Gardner-Hopkins would not automatically be able to return to work as a lawyer after two years, and would need to first apply to a Law Society practice approval committee for a new practising certificate, Epati said.
“The onus is squarely on him to prove he is fit and proper to be a lawyer again.”
She acknowledged the time it had taken for the investigation and disciplinary process to conclude, saying changes had been made to a process which had been designed to focus on issues related to consumers of legal services rather than sensitive complaints like this one.
The Law Society had also adopted the recommendations from an inquiry led by Dame Sylvia Cartwright, including mandatory reporting of misconduct, clearer behavioural standards, and a “whistle-blower” protection.
“It is now firmly the responsibility of those in senior positions who supervise other lawyers to ensure this type of behaviour does not happen and report it if it does,” Epati said.
The society was keen for further changes to be made, noting the current law prevented it from saying anything about, or even confirming, complaints involving sexual violence, harassment, bullying, and discrimination.
Epati said the case has already been “the catalyst for real and enduring change”, but it was important that the momentum in improving the profession was maintained.
