Sasha Borissenko: Booze, power and sexual misconduct – the toxic mix revealed at James Gardner-Hopkins’ hearing


Last week the NZ Lawyers and Conveyancers Disciplinary Tribunal found James Gardner-Hopkins guilty of six misconduct charges relating to inappropriate sexual conduct at two Christmas functions in 2015. It’s been five years since the offending, three years since the story broke, and we’ve seen an independent inquiry into Russell McVeagh, a review into the Law Society, and regulatory changes to the Client Care Rules, which will come into force July 1.

Let’s take the time to delve into the case in question. To start, the tribunal prefaced its findings by summarising the context of Gardner-Hopkins, the complainants, and the firm.

James Gardner-Hopkins and firm culture

Gardner-Hopkins was described as being one of few Pacific Island Māori students at law school, and at Russell McVeagh. He said he was treated as “… something of a poster boy for diversity at the time – literally, being promoted on promotional material, posters and the like”, the decision read.

Gardner-Hopkins said when he relocated to Wellington from Auckland to establish a leading environment, planning, and natural resources team, there was a loss of “regular guidance, mentorship and modelling of behaviour” from [the partnership]. In a bid to develop and foster clients, the firm culture involved a great deal of entertaining, including heavy drinking. He believed he was expected to be the “young, cool partner”. It was this pressure, isolation, as well as other factors that led to him dealing with his stress by way of alcohol misuse.

Was Gardner-Hopkins the product of a bankrupt system? The tribunal stressed that it made no definitive assessment of the firm’s culture as a whole because of the limited nature of the evidence, and the firm had no opportunity to respond to said evidence.

However, specific examples involving the objectification [my words] of women were given some weight as the pattern of failing to observe boundaries with females after he consumed alcohol was deemed relevant to the tribunal’s assessment of the incidents in question.

The incidents in question

Charge one to five related to intimate touching (including attempted kissing) of Ms A, Ms B, Ms C, and Ms D at the firm Christmas party. Charge five specifically related to intimate touching of Ms B, and an altercation involving a taxi while a number of people – including another partner – was present.

The tribunal deemed the fourth charge to be “arguably the most serious and blatant of that night, and certainly shocked those who witnessed it as well as the complainant”.

“The fact that the practitioner was so disinhibited that he touched Ms B intimately in front of other people may speak to his level of intoxication, which he says was by then staggering and slurring. Or it may lend weight to the submission made [by Dale La Hood, representing the Standards Committee] that somehow Mr Gardner-Hopkins thought that such conduct would be tolerated and represented a sense of entitlement.”

Charge six related to an incident involving Ms K at a work party at Gardner Hopkins’ house. Throughout the hearing, while Gardner-Hopkins recalled his recollection of the events, Ms K wasn’t present at the hearing. Gardner-Hopkins went so far as to claim that prior to the events, Ms K had provided “heavy pours” of whisky for him as a deliberate attempt to get him drunk.

Without going into detail, the tribunal found the question as to who initiated the contact to be irrelevant. “Given the enormous power imbalance between the partner and head of the team, and the summer clerk in that team […the conduct…] can only be characterised as disgraceful and dishonourable,” the decision read.

The legal issues

In making their assessment, the tribunal pointed to Young v National Standards Committee, where it was found: “an act directed at maintaining public confidence, consumer protection and recognising the standing of the profession should be construed in a way that is consistent with that direction…”

But was the conduct committed in a personal or professional capacity? The tribunal found the conduct was not unconnected with the provision of legal services. Therefore, it had to be construed as professional conduct, which was the case in Deliu, where it was found that regulated services included all activities “incidental to legal work”.

On the evidence, this was compounded by the fact the “work hard/play hard” culture was such that in an attempt to bond as a team, socialising out of work hours was an expected and encouraged practice. The incidents in question occurred at work events, so the conduct was made in a professional capacity.

Ultimately the tribunal found on the balance of probabilities that Gardner-Hopkins did not, while acting in a professional capacity, conduct dealings with others with integrity, respect, and courtesy. And he did so either disgracefully, or dishonourably, or recklessly.

“The “professional” aspect of Gardner-Hopkins’ failure to pay any attention to the type of behaviour required of him at a firm function represents a clear failure,” the decision read.

What’s more, while Gardner-Hopkins’ case centred around denying any sexual intent, the tribunal pointed to the case of C where “intentional wrongdoing may be sufficient to constitute professional misconduct, it was not a necessary ingredient”. In Deobhakta, the conduct had to be of a nature that indicates serious deficiency in observing normally accepted standards to meet the “misconduct” threshold.

“As a partner [Gardner Hopkins] had an obligation to model appropriate behaviour for his junior staff and behave in a way fitting of a member of the profession which includes self-regulation to ensure propriety. In particular, he ought to have been aware of the obvious power imbalance between a partner and a junior staff member interacting at a social function.

“The seriousness of his poor choices on that evening is compounded when added to his acknowledgement that when drunk his behaviour was to have “no respect for personal boundaries,” the decision read.

In the case of charge five, for example, “although Mr Gardner-Hopkins contends that this contact with the breast was accidental, he was clearly imposing himself within her personal space and, as a person who did not know her, or even her name, this was clearly unacceptable and inappropriate”.

On the credibility of the complainants

The tribunal described the witnesses as persuasive, careful, reflective, straightforward, and clearly credible. Interestingly while the complainants were asked whether they were inebriated, this fell in their favour. Ms A was sober, Ms B described herself as being on a scale of 1-10 at about a 4 or 6. Gardner-Hopkins and partners on the other hand, were highly intoxicated.

“We were impressed by the care taken by the witnesses to recount events from their own memory. On more than one occasion, the witness referred to a clear memory of how she had felt at the time, because even if peripheral details had been lost to memory, the feeling (including that of powerlessness) had not.

“Of the group [of law clerks], two have left NZ – one specifically as a result of these events; at least one has left the profession; another changed her area of practice so as to avoid contact with Mr Gardner-Hopkins (especially after he was elected President of the Resource Management Lawyers Association); another felt her career had been adversely affected.

“It is a mark of shame for the profession that its most junior members have shouldered the burden of bringing these events to notice, but it reflects only positively on them.”

“The [women] had the moral compass to know what had happened was wrong and the courage to speak out. In doing so, in no small part they have initiated long overdue and necessary steps to ensure this conduct is not repeated on others.”

Conclusive findings

“In our view, Mr Gardner-Hopkins has not previously been able to accept that he acted in the manner described by each of the complainants. Put colloquially, he has been in denial. He has no real recollection of what occurred that night. Since the allegations were first put to him, his attempts at reconstruction have been influenced by a belief that he could not have acted in the manner described,” the decision read.

The tribunal found it highly unlikely that Gardner-Hopkins could have “inadvertently touched four different young women (some of the most junior present at the party, therefore likely to be in awe of him), in a manner which was intrusive and intimate, completely accidentally”.

“The practitioner’s version of events that he was drunken and oafish in his behaviour may well be true, but it does not explain how the “oafishness” always managed to manifest itself in intimate touching of vulnerable young women.

“If the touching had been accidental, the expected normal response to touching such a part of the body would be shock, immediate withdrawal of the offending hand and an apology. Nothing like that occurred.

“Intimate non-consensual touch connected with the workplace, on someone that the lawyer has power over, has always been unacceptable.

“There is no place for objectification of women or indeed any person, by those in the profession of law,” the decision read.

Where to from here?

The tribunal did not want its decision to be read as enforcing a humourless, rigid code of behaviour on the legal profession.

“A careful reading of the evidence recorded in this case, and understanding of the relevance of power imbalances, will reveal the stark differences between healthy collegiality and what happened here.”

It was found that at the time of the offending, Gardner-Hopkins was unfit to practice. Whether he is now, and will be disbarred, is still to be determined.

In other news, next week marks the second-year anniversary of this legal column. Having worked extensively on the Russell McVeagh investigation all those years ago, it could be argued that this case was instrumental in New Zealand’s #metoo movement.

Is there much still to be unearthed? Absolutely.

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