A Risky Situation

The Manitoba Law Society Discipline Hearing Panel has imposed a 30-day suspension of an attorney who admitted he had sexually harassed a law student at and after social events held in connection with a moot court competition

The Member is employed as an associate at a large Winnipeg firm in the field of real estate and corporate/commercial law. In   , he served as coach to a moot team at the University of Manitoba’s Faculty of Law and in that capacity, attended a competition in Toronto, Ontario. It was on that trip that the particulars in the Citation occurred.

The Citation contains three counts. The Society accepts the Member’s plea of guilty to the first charge and on that basis, withdraws the other two counts. The first charge says the Member acted contrary to Rule 6.3-3 of the Code of Professional Conduct (“the Code”), which prohibits sexual harassment as defined therein. The Member admits his actions as set out in the particulars amounted to sexual harassment as defined in the Code.

The Member admitted

At a cocktail reception following the moot event, you placed your hand on [B’s] back while you were standing near her.

At a karaoke bar

 You used your arms to pull her chair towards yours so that they were flush with each other;

You placed your hand around the back of B’s chair and then moved your hand onto her back;

You moved your hand down her back towards her buttocks;

You rested your hand on the chair behind B’s buttocks;

You repeatedly caressed your hand on her lower back and buttocks.

In the vehicle ride back to the hotel at which you, B and others involved in the moot were staying, you sat beside B, placed your hand on her thigh and caressed her thigh for the duration of the drive.”

Victim

 B was a student in the moot program whom the Member had been coaching in the time leading up to the competition. The Society interviewed another moot student, C, who attended the event and she observed B’s discomfort at the Member’s actions, as evidenced by B’s body language. B and C were both troubled by the Member’s behaviour as set out in the particulars. Mr. Simmonds informed the panel the Member had been consuming alcohol through these parties and although he recalls the celebrations generally, he does not recall the actions as outlined in the particulars, but does not deny them and accepts responsibility for them. Mr. Simmonds informed the panel he had interviewed other witnesses who were present at the cocktail party and the karaoke bar who did not notice the Member’s actions, but on behalf of his client he nevertheless does not dispute the particulars.

There were a number of documents offered in mitigation including an apology and

 Confirmation the Member had completed training on sexual harassment; professionalism; diversity, sensitivity and Inclusion; stress management, drug and alcohol awareness, and counseling for depression and anxiety.

 Reference letters from his firm’s managing partner and from the chair of the executive committee, a female partner who has worked with the Member through the time he has been with that firm; from a non-profit organization where the Member has been a volunteer; from the Member’s fiancee; and from the Member’s sister. All describe the Member in the most positive terms and state this behaviour was out of character for him. They are all confident the Member is a very low risk to reoffend, and the Society and the panel accept that risk assessment.

Seriousness of misconduct

 It is acknowledged by both sides that sexual harassment is serious misconduct, that the jurisprudence demonstrates this misconduct attracts greater sanctions than it did 10 or 20 years ago, and that sexual harassment is all too common in legal practice but only a small percentage of those who are victims choose to make formal complaint. The panel finds the likelihood of being caught, which is usually the greatest deterrent, is not present here, meaning effective general deterrence can only be achieved through the severity of the consequences. The principle is that where a perpetrator faces only a small chance of being held to account, it is only when the consequences of being caught are severe that members will refrain from committing the misconduct; the risk is not worth it.

Warning

In terms of avoiding alcohol at law school events, this case provides an important lesson for the profession. The profession has numerous events where alcohol is offered as part of the festivities. Although abstinence would be the most prudent course, we recognize it is often less awkward to have a drink. Any lawyer who decides to have too much to drink at such an event is creating a risky situation (leaving aside the concern for those who will operate a vehicle after the event). For our profession, over-consumption of alcohol when misconduct ensues can be an aggravating factor not a mitigating factor, and may result in the imposition of greater discipline than might otherwise be the case. This is part of the message of general deterrence.

Sanction

this panel finds the Member’s offence requires a suspension, and accepts the Society’s recommendation of thirty (30) days duration.

(Mike Frisch)