The legal ethics of sexually explicit conduct
Ordinarily, a barrister’s character and reputation would be at risk if, at a professional dinner, he greets a woman he doesn’t know by pushing her head and saying “suck my dick”.
But in the tribunal’s decision about the barrister’s conduct, he remains anonymous, known only as EFA. The tribunal commonly hides the names of misbehaving barristers, but with this anonymity, clients simply won’t know if their barrister is the type of man who engages in such conduct.
And that’s not the most surprising part of the story. Just before EFA ‘greeted’ the woman in this way, he had already engaged a male barrister in a ‘ritualised greeting which, in part, parodied oral sex’.
How is it that that crude, sexist, offensive conduct can be said to be merely ‘unsatisfactory’? What does that say about lawyers’ professional standards in 2021?
The full story is in the disciplinary tribunal’s decision online. The decision is a detailed, forensic examination of laws, rules, cases and evidence. But the result is that EFA’s sexual conduct is merely ‘unsatisfactory’, and could lead to something as mild as a caution; he won’t be stopped from practising law.
In other cases, unsatisfactory conduct is, for example, being repeatedly late for court, or failing to properly bill for services. It is hard to fathom how the tribunal could view EFA’s sexual behaviour so benignly.
The law that regulates lawyers’ conduct is complex. I teach it, and I practice under it. It involves interpretation, nuance and shades of meaning that make it difficult to give a simple summary. But there are some basic principles: to maintain public confidence in the justice system, and to protect the public.
It is hard to see how either of these principles is served by a decision that both characterises as EFA’s conduct as ‘unsatisfactory’, and hides his identity.
In my view, the decision is wrong as a technical matter, but that is a question for an appeal court and the classroom. More immediately, the decision cannot instil public confidence in the justice system.
There is always a risk to public confidence when a lawyer’s conduct is assessed by other lawyers. Even though it was EFA’s own professional association that brought the case against him, it was a panel of two lawyers and a lay person who decided the case.
But more than the fact that lawyers made the decision, the decision is one that only lawyers could have made, with reasoning that will be inexplicable to the public.
The panel said that EFA’s ritualised greeting which parodied oral sex was “clearly not appropriate at a barristers’ clerks’ dinner, even late in the evening”, as if there are times and places when such a greeting is appropriate between barristers.
The panel said that EFA was merely including the woman in this “horseplay”. The panel said that his conduct was “inappropriate” and “poorly judged, vulgar and inappropriate”, but not a “sexual advance”. In the panel’s view, EFA remains of “good character”, and is a “fit and proper person” to practice law.
That would be news to almost any member of the public. It neither maintains public confidence in the justice system, or protects the public.
There is much more of this legal dicing and slicing in the decision. The overall impression is of an effort to walk a tightrope between acknowledging EFA’s conduct, and not condemning him for it.
Lawyers may protest that the law is what it is and has to be applied. Correct. But what the law is is often a matter of interpretation and judgement, as it was here.
In this case the tribunal had to decide what type of conduct will render a person unfit to practice law. It had to decide when forcing a woman to participate in sexual conduct crossed a line, from poor judgment to, at least, professional misconduct. Uninvited, sexual conduct crosses that line.
There is no hint that the panel’s decision on these issues was made in light of the current public discussion of men’s sexual conduct towards women, of male power and women’s vulnerability, of masculine culture and male entitlement, of changing perceptions of when horseplay might be an assault.
The contemporary zeitgeist is a real and valid consideration. If regulation of lawyers’ conduct is to instil public confidence, it needs to reflect public expectations. The public does not expect to see conduct such as EFA’s waved through as “unsatisfactory”. And if that really is how the law sees it, the law needs amending.
Originally published as ‘Why was an Australian barrister’s crude conduct towards a female clerk deemed merely ‘unsatisfactory’?’ in The Guardian, 12 March 2021