Following consideration of a complaint, the Discipline Committee may order a lawyer to appear before the Conduct Review Subcommittee.
Rule 4-11 permits the Executive Director to publish and circulate to the profession a summary of a matter that has been the subject of a conduct review. A summary published under this rule must not identify the lawyer or the complainant.
Since conduct reviews are private and confidential, publication of findings is not generally carried out unless the matter is of particular interest or instructive to the membership as a whole.
This conduct review arose from a complaint of sexual harassment received by the Law Society.
Lawyer 8 was a senior partner at the firm where the complainant was an articled student and later a junior lawyer. While the complainant was an articled student, Lawyer 8 made romantic advances toward her, which made her uncomfortable. She complained to the partnership of the firm, who spoke to Lawyer 8 and received a commitment from him not to act in such a way toward the complainant. They asked the complainant to report any further infractions.
The following year, an intimate relationship began between Lawyer 8 and the complainant, which lasted approximately three years.
Lawyer 8 disputed that sexual harassment had occurred, claiming that the events between himself and the complainant were consensual. The complainant stated that the relationship arose from unwelcome conduct; Lawyer 8 was persistent in his advances, he was in a position of authority and that eventually she gave in.
Sexual harassment was defined by the Supreme Court of Canada in Janzen v. Platy Enterprises as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of sexual harassment.”
Power plays a key role in the analysis of whether conduct is unwelcome. Dupuis v. British Columbia (Ministry of Forests) established that the burden rests with the manager to be certain that any sexual conduct is welcomed by the employee and continues to be welcome.
Lawyer 8 told the Subcommittee that he feels his colleagues and staff enjoy what he considered to be light-hearted, flirtatious but harmless banter around the office. The Subcommittee urged him to recalibrate his sense of what is small-talk and what is offensive behavior.
The Subcommittee found that Lawyer 8 betrayed his partners, potentially exposing them to both legal liabilities and potential public embarrassment by engaging in an affair with a junior lawyer. While the firm is not excused for its general failure to take any effective steps concerning the matter, the Subcommittee noted that Lawyer 8 made commitments to the firm that he did not keep.
The Subcommittee found that Lawyer 8 displayed remarkably little insight into his conduct. It is difficult for the Subcommittee to accept that after two decades of jurisprudence on the nature and legal consequences of sexual harassment that a senior lawyer could be so unaware of his obligations.
Lawyer 8 assured the subcommittee that he understood the matter and that his conduct would not recur.
Based on the above, the Conduct Review Subcommittee recommended no further action.