Late in 2024, a Tasmanian Supreme Court judge was found guilty by the Hobart Magistrates Court of committing an assault and engaging in emotional abuse vis-à-vis his former domestic partner. These convictions resulted in a 12-month community corrections order, prompting his resignation from the bench. They also served to shine a further spotlight on intimate partner violence and abuse, from which the legal profession is (regrettably) hardly immune.
The foregoing raises the question of what an appropriate disciplinary response might be for a lawyer who has engaged in this form of violence and abuse. That any such behaviour occurs (typically) outside the course of legal practice is certainly no shield against a disciplinary investigation and consequence. Wrongdoing by lawyers in their private lives may go to the confidence that others – courts, other lawyers and the public – can legitimately place in the wrongdoers in their professional capacity. Particularly in the wake of the greater ventilation of the social ills surrounding intimate partner violence, it should be little surprise that this should register on the disciplinary radar.
Having said that, the Australian disciplinary case law reveals relatively few instances of professional discipline in this regard. It has, however, surfaced in American case law for some time (See the American case law on domestic abuse and its professional sanctions catalogued in Iowa Supreme Court Attorney Disciplinary Board v Blessum (2015) 861 NW 2d 575 at 591–5. See further K A Geraghty, “Bruising the Legal Profession: Attorney Discipline for Acts of Domestic Violence” (1997) 28 Rutgers LJ 451.) One Australian illustration is found in Council of the New South Wales Bar Association v Franklin (No 2) [2014] NSWCA 428, arising out of the respondent barrister’s conviction for multiple sexual offences against his former partner, occurring over a 12 hour period in the context of a complex and troubled relationship, against a backdrop of a finding that he had knowingly given false evidence in the criminal trial process.
Meagher JA, with whom Beazley P and Leeming JA concurred, viewed the circumstances of the offending as “inconsistent with the respondent’s possessing qualities of integrity and willingness to comply with the law”, revealing “defects of character incompatible with the standards and behaviour required of a member of the legal profession”.
Scope for disciplinary sanction arising out of intimate partner violence does not rest on it being accompanied by a criminal conviction (although an acquittal therefor in a trial might well dictate otherwise). In the Colorado case of People v Musick (1998) 960 P 2d 89, for instance, the respondent attorney, whom the Supreme Court found had committed three separate physical assaults on his domestic partner that were not the subject of criminal prosecution or conviction, should be suspended for one year and one day.
But should all poor behaviour in the context of domestic relationships translate to the disciplinary arena? In 2023, a New Zealand disciplinary tribunal asked in National Standards Committee 2 v Tingey [2023] NZLCDT 22: “when lawyers are engaged in consensual relationships that break down, to what extent should their conduct be susceptible to professional discipline?” The question was raised in the face of a longstanding covert affair between two lawyers at a firm, during which the respondent engaged in behaviour that was frightening and distressing for the complainant, and acted in what the tribunal described as an “immature, ill-disciplined, and at times, a bullying way”.
This ultimately generated an order that the respondent be censured and fined; he was spared suspension or striking off, in part due to the events in question occurring some 10-15 years earlier, during which time there was compelling evidence that the respondent had been rehabilitated.
At the same time, the tribunal queried whether the disciplinary environment was always an appropriate venue to ventilate the travails of otherwise consensual relationships. It discerned, to this end:
… a difference between upholding professional standards which prevent the exploitation of those who are not in a position to protect themselves because of a power imbalance, and the imposition of moralising or infantilising principles which would interfere with the right of adults to freely make relationship decisions.
This formed the backdrop to citing from an English court that differentiated permitting “some scrutiny” of a lawyer’s private affairs – “for the purposes of the proper regulation of that profession in the public interest” – from any suggestion that “any or all aspects of that person’s private life must be subject to regulatory scrutiny”. While no doubt an apt distinction, it should not be assumed that a lawyer’s private life if characterised by intimate partner violence or abuse will escape a disciplinary response.
