The former law firm partner whose treatment of summer interns sparked an outcry is told, 'It’s easy to say what you will do – it’s harder to do what you say,' amidst arguments over his sanction
A disciplinary tribunal has been told it must consider striking off a former Russell McVeagh partner found guilty of misconduct after groping summer clerks, given the need to send a signal to the legal profession about such behaviour.
However, the man's lawyer has argued his client can confront his demons without losing his right to practise law, having made steps to deal with the behaviours behind his conduct.
In June, 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 its decision, the tribunal said Gardner-Hopkins had been “in denial” about his actions towards the complainants, while he had paid little or no regard to his professional obligations and the power imbalances at play.
At a penalty hearing held on Thursday to decide whether he should be struck off from practising law, suspended or face some lesser sanction, Gardner-Hopkins told the tribunal he had made significant progress on the underlying issues which had led to his behaviour.
“My drivers are different. I want to be a fantastic lawyer, I love the profession, I love just helping people…
“But that now is actually secondary to my family, that is secondary to my partner and it is secondary to my child and that is just in and of itself just a complete flip over from what I prioritised and held as most important.”
He no longer used alcohol as a “crutch” to control anxiety, instead having the occasional drink in a healthy manner, and had been having regular sessions with a psychologist to help with mental issues – although Auckland’s Covid lockdown had exacerbated some of his isolating factors.
Asked by a tribunal member how he would now behave if taken back to the night of the firm Christmas party, Gardner-Hopkins said: “There wouldn’t be the initial drive or wish to get drunk, to get plastered to just have a great time in that sense…
“Everything else would be different as well in terms of what I've learned and understood about professional boundaries, friendships and social interactions, and so it wouldn't just be about that one night, it would be about the entire lead-up to it.”
But representing the lawyers’ standards committee, Dale La Hood argued the lawyer’s hindsight was hardly surprising, and did not show he had changed his ways.
“It’s easy to say what you will do – it’s harder to do what you say.”
The starting point for discussions had to be a strike-off, and if that was inappropriate “nothing short of a very lengthy suspension would be appropriate”.
La Hood said Gardner-Hopkins had shown a pattern of only accepting responsibility “at the very last moment, and on terms that ultimately only benefit him”, and had never offered a full apology to the complainants for all of his actions.
The starting point for discussions had to be a strike-off, and if that was inappropriate “nothing short of a very lengthy suspension would be appropriate” given his behaviour.
Even if the tribunal decided he was now fit and proper to practise law, having found the opposite over the original offending, it had to impose a sufficient penalty to maintain the profession’s standards and show there was meaningful accountability for such misconduct.
Asked how the lack of any offending since the events in question should be taken into account, La Hood said it was at best a neutral factor, while written character testimonies about the quality of Gardner-Hopkins’ legal work were of little relevance.
“This happened because Mr Gardner-Hopkins was unfit as you found to practise law, not in the technical sense but in the widest sense … the practice of law has not been about [being] a technically brilliant lawyer, or just about that, it's about being an all-around proper person for the legal profession.”
Representing Gardner-Hopkins, Julian Long said his client was clear that he had merely started the journey to addressing his shortcomings.
“We're not pretending that the job is done. Mr Gardner-Hopkins does not come before you as, ‘I’m better, I've fixed this’ – he comes before you and says, ‘I recognise these issues. I've been attempting my level best to confront and deal with these things’.”
However, Long said that further work could be done without removing him from the profession entirely.
It was “self-evident” that Gardner-Hopkins’ experiences since the scandal broke, including the loss of his job at Russell McVeagh and the end of his marriage, had changed him through greater self-reflection, while the consequences of his behaviour would be with him for some time.
“Mr Gardner-Hopkins is, I suppose … for all the wrong reasons the most prominent lawyer in New Zealand at various times and there's nothing that will ever change that for him now: your censures and all the other things, that will be a permanent record, but so will Google … and he will have to, and will, front-foot this issue with everyone.”
The need to send a signal to others in the legal profession was mitigated by the “heavy lifting” the Law Society had done in the last few years to draft new standards of conduct, Long said, while Gardner-Hopkins did not have a track record of misconduct before the offending in question.
The tribunal would be setting precedent with this case and had to consider whether the offending was at the highest end of the scale.
“I know I have one of the clerks here [in the court] and I’m very sorry: to the others…if they are watching, I’m very sorry...I can only apologise for the deep effect it has had.”
Long raised the possibility of a restorative justice process with the complainants, although he said that should not influence the penalty or delay the tribunal’s decision.
At his lawyer’s prompting, Gardner-Hopkins also apologised again to the summer clerks, saying he accepted the tribunal’s findings in full and had intended for his written evidence to offer a “full, unreserved apology”.
“I know I have one of the clerks here [in the court] and I’m very sorry: to the others … if they are watching, I’m very sorry ... I can only apologise for the deep effect it has had.”
If he were to be suspended from practising law, Long said a lead-in time would be needed to help him finish his obligations to existing clients.
There was also some discussion about what work he could pursue if suspended or struck off, with Gardner-Hopkins saying it was possible he could continue working in his area of resource management as a consultant or adviser.
The tribunal has reserved its decision on the penalty.
