The decision to allow a lawyer convicted of committing an indecent act on two young boys to continue practising is being blasted by a legal union as a sign of a deeply problematic industry.
Aotearoa Legal Workers Union (ALWU) says it is a disgrace that lawyers are allowed to continue practising despite being charged with sexual abuse, but financial crimes like fraud are considered fireable offences.
ALWU cited the September decision by the New Zealand Lawyers and Conveyancers’ Disciplinary Tribunal to allow 35-year-old Richard Harker to continue to practise law as part of a "pattern of failure".
Harker was convicted in 2017 of two charges of committing an indecent act on two boys aged 10 and 12. Harker followed the children in a mall and touched their backsides.
For the next five years he is not allowed to be near anyone under 16 unless there is another lawyer present - but he can continue to practise.
In declining to suspend Harker the Tribunal said it believes Harker has "done as much as he possibly could have done to rehabilitate".
“We consider that he is well along the path to redemption.”
The tribunal looked at whether Harker brought the legal profession into disrepute and whether this reflected on his fitness to practise law. Harker had accepted he brought the profession into disrepute but argued that did not reflect on his fitness to practise law.
Harker's case is not isolated - last year, a former partner of a law firm was granted name suppression and allowed to continue in his career after he was censured and fined for sexually harassing two employees.
The man grabbed a female employees bottom twice, leaving a bruise, propositioned employees and once grabbed a woman's wrist forcing it against his groin and telling her "this is for you".
The Standards Committee decided a charge of misconduct before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal was not justified.
Helen Morgan-Banda, the chief executive of the Law Society, told Newshub the organisation is doing "everything it can" to improve the culture of the sector.
"However, our ability to deal with complaints about bullying, sexual harassment and other unacceptable conduct is constrained by the Lawyers and Conveyancers Act 2006."
"We engaged with the Government to explore options to change the regulatory framework. This included a change to the restrictions in the Act to being able to be transparent and disclose information about complaints received, a frequent criticism of the current system," she said.
However Morgan-Banda says it is not possible to change the Act "at this time" so instead the Law Society is focused on improvements that do not require a law change.
"This included looking at changes to the rules and regulations that apply to the legal profession. In addition, the Law Society has instigated an Independent Review of the statutory regulatory framework for lawyers which will include the complaints process."
But while ALWU acknowledged the Law Society's review, it says this is not enough.
"The failure to act appropriately in the Harker decision is part of a pattern of failure to take adequate steps in response to sexual violence," said ALWU.
"We consider that a person convicted of sexual offending against children should lose the privilege to practice as a lawyer."
The union then references a slew of lawyers who were struck off for a range of financial crimes including fraud and embezzlement, saying it's clear the Law Society has a skewed view on what is a fireable offence.
"These cases, while appropriately decided, show that the regulatory system of the legal profession is disproportionately focused on financial conduct."
The ALWU says that despite a Law Society survey which found one in five legal workers have been harassed in the workplace (one in three for those who identify as female) the organisation is not doing enough.
"Its Standards Committee inexplicably continues to decide that neither sexual harassment nor behaviour amounting to indecent assault amounts to misconduct and that lawyers and legal workers are not entitled to be protected and free from either."
Morgan-Banda says the Law Society "has not stood still" and is working to ensure legal workplaces are safe.
"We have introduced a wealth of education and other initiatives to support healthy, safe, respectful, and inclusive legal workplaces, including free counselling, an 0800 number for those affected and a National Mentoring Programme."
As part of a possible solution, the union has made a series of recommendations to the Law Society.
It says a more diverse group of people around the table of the Standards Committee could make a difference.
"Younger legal workers are those most likely to be victims of sexual harassment and bullying. They are uniquely placed to bring an educated, considered and nuanced lens to this issue."
"This would lead to more just outcomes that reflect the voices of our profession and would be a step towards a more inclusive and fair profession."
