Opinion: Sasha Borissenko – Who was forgotten in the James Gardner-Hopkins misconduct ruling?

OPINION

The Lawyers and Conveyancers Disciplinary Tribunal recently imposed a two-year suspension on former Russell McVeagh partner James Gardner-Hopkins, and ordered him to pay $108,008 in costs.

Gardner-Hopkins was found guilty of six charges of misconduct in June following events in December 2015 and January 2016 that included “intimate non-consensual touching of different young women, [and] the sixth charge of engaging in consensual sexual activity with a young woman,” the decision read.

It must be noted the woman who was subject to the “consensual sexual activity” chose not to be involved in the process. She didn’t come forward, so the issue of her consent was not considered by the Tribunal.

Law Society president Tiana Epati said in a statement the penalty didn’t mean Gardner-Hopkins would automatically be able to work after the two years as he would subsequently need to apply to a Law Society practice approval committee for a new practising certificate.

“The onus is squarely on him to prove he is fit and proper to be a lawyer again,” she said.

“The Standards Committee submitted [that a] permanent strike-off was appropriate. The Tribunal weighed matters and decided a two-year suspension was the appropriate outcome in all the circumstances. We acknowledge the Tribunal heard all the evidence first-hand and carefully considered the serious nature of the offending with the need for rehabilitation.”

"Stern sabbatical"

Last week Twitter legal aficionado Strictly Obiter published a cryptic message that particularly resonated with me. It read: “Practitioner disciplined with stern sabbatical”.

Aotearoa Legal Workers’ Union co-president Tess Upperton said the outcome – let’s now call it a stern sabbatical – was devastating for the complainants and for the profession as a whole.

I’d go on to say that it’s embarrassing, extremely disheartening, dangerous, and a reflection of how society deals with gender issues. Would he have been struck off had he misappropriated clients funds? And given the sheer amount of time, accounts, and evidence against Gardner-Hopkins, one has to ask – what would it have taken to meet the threshold of getting struck off?

What’s more, being struck off isn’t a be-all and end-all – had he been struck off Gardner-Hopkins could apply to be reinstated down the track, for example.

Instead, Upperton said the outcome “sends a clear message to practitioners that misconduct this egregious can result in nothing more than a slap on the wrist. If a partner can assault interns and not be disbarred, what standard are we holding ourselves to as a profession?”

“Complainants are in an impossible position: either don’t speak up, or fight to be heard in a system that tries to stop you at every turn and end up with a judgment like this after six years.”

Lawyer Ana Lenard said via LinkedIn that the decision ultimately communicated that good lawyers were above the law.

Gardner-Hopkins’ “abilities as a lawyer generally, and as an advocate in particular, are such that it will be beneficial to the public if he were readmitted to the profession in a rehabilitated state as soon as practicable after the period of suspension”, the decision read, for example.

The December penalty hearing

Rewind back to the penalty hearing in December, which unusually lasted one whole day. Gardner Hopkins said: “I’ve had a bad habit of always putting my clients first.”

“I want still [sic] to be a fantastic lawyer. I love the profession, I love helping people.”

His lawyer Julian Long said it was self-evident given what Gardner-Hopkins had gone through – namely media backlash – it had changed him.

It had brought profound changes to Gardner-Hopkins’ life, including having to leave the Russell McVeagh partnership and his marriage breaking down. He was “heading places”, which wasn’t the case now.

But what about the survivors? Why weren’t they given the same consideration as Garder-Hopkins’ beloved clients? All have since left the firm; some even left the profession and the country. These individuals, who were profoundly impacted perhaps indefinitely, were at the start of their careers. Surely they too were “heading places”?

“The enormous public interest and publicity surrounding this case, for over three years, has meant that, despite suppression orders, Gardner-Hopkins has had the ignominy of being the ‘face of’ sexual harassment in the legal profession,” the decision read.

This sentiment bothers me because if offending such as this happens, isn’t public scrutiny – nay accountability – always going to be a probability?

It seems the impact on the survivors was eclipsed by the impact on Gardner-Hopkins. In fact, they were afforded four short paragraphs in the 21-page decision.

And surely name suppression counts for something. Perhaps conjecture, but would a person of lesser status, in another profession, and in a lower socio-economic situation, have been granted name suppression? We mustn’t forget Gardner Hopkins was very much still practising law and he is still eligible to do so until February.

According to Tiana Epati, only the Tribunal has the power to suspend a practitioner who holds a practising certificate. But every year practising certificates expire and must be renewed.

As at July 1, 2021, the renewal of Gardner-Hopkins’ practising certificate was deferred pending the outcome of the penalty hearing, which was originally scheduled for a few weeks after he was found guilty of misconduct in June 2021. Unfortunately, Coivd repeatedly delayed the penalty hearing, she said.

In other words, section 40 of the Lawyers and Conveyancers Act provides that Gardner-Hopkins had to be treated as if he had a practising certificate.

Fines, fines, fines

The Tribunal had the option to make a compensation order to the survivors but instead ordered Gardner-Hopkins to pay the Committee’s and Tribunal’s costs.

How does this incentivise victims to come forward?

During the penalty hearing, Gardner-Hopkins told the Tribunal he had been focussing on paying down debts including on credit cards and an IRD debt, which had since been cleared. He said his monthly spending – which Standards Committee lawyer Dale La Hood said was estimated to be $12,000 – included groceries and other living costs.

Unless you’re buying a whole wheel of cheese, Moet, and a slab of salmon on the regular, I’m at a loss to see how groceries could amount to $12,000 a month. La Hood echoed these sentiments in the hearing saying: “Not being able to maintain your lifestyle is not the same as financial ruin.”

And after a deep-dive I found one of Gardner-Hopkins’ two properties was valued at $2.39 million. He described this same property as too small to comfortably talk to a mental health physician with his partner in the house. It meant he had to attend such meetings in the car while he was doing the school run. He had made contact with two psychologists who would be a good fit for the future. But the name of one had “escaped” him at the hearing.

While he continued to drink alcohol, he was no longer “binge drinking or going out on the town” he told the Tribunal. Was he a changed man? He was, he said.

What's this all mean?

During the hearing Gardner-Hopkins said – after a pause – that he was not intending to appeal the decision. Considering Gardner-Hopkins wasn’t struck off, I would argue he has no need to appeal the outcome.

Instead, you have to consider the extreme toll on those included in a process that’s been more than five years in the making.And for what?

Source: Read Full Article