Neil Sands
Disgraced lawyer James Gardner-Hopkins’ bid to regain his practising certificate will be determined behind closed doors and there is no guarantee the decision will be made public, the New Zealand Law Society (NZLS) has revealed.
Gardner-Hopkins, a former partner at Russell McVeagh, was suspended for three years in 2022 for sexual misconduct against summer interns at the firm, in a case that rocked the legal profession and led to widespread scrutiny of workplace culture.
Gardner-Hopkins’ suspension expired earlier this year and he lodged an application to practise again, which resulted in the NZLS issuing a public notice calling for comments on the issue by March 20.
Four months on, LawNews questioned NZLS about the status of the case and was told: “The application process remains ongoing, and no decision has been made.”
Gardner-Hopkins’ fate as a lawyer is being decided by the NZLS Practice Approval Committee which has five members, including NZLS president Frazer Barton and Hamilton commercial lawyer Truman Wee as convenor.
NZLS said the committee’s deliberations were not public.
“There is no public ‘hearing’ of an application,” it said in a statement.
“The Practice Approval Committee considers all relevant information and makes necessary inquiries, including reviewing submissions made on the application and obtaining any reports that may be required from independent experts.”
Nor is the committee obliged to publicly announce its decision.
“This process is generally not made public for privacy reasons, but the Practice Approval Committee may decide to publish an outcome. In this case, whether to publish an outcome will be a decision for the Practice Approval Committee,” NZLS said.
‘Incalculable impact’
In a written decision weighing up Gardner-Hopkins’ conduct, the Lawyers and Conveyancers Disciplinary Tribunal noted the mark his case made on the legal profession in New Zealand.
“When the allegations emerged into the public domain, it led to an outpouring (in the midst of the ‘Me Too’ movement) within and beyond the legal profession, culminating in an independent review being undertaken at the request of Russell McVeagh and a working group set up by the NZLS,” it said.
“It is probably fair to say that these events, and the outcomes which followed the two reports of the inquiries, called out unacceptable behaviours and have led to significant changes in many workplaces in the legal profession.”
The tribunal found against Gardner-Hopkins on all six charges of misconduct that he faced.
His behaviour involved intimate non-consensual touching of four women and engaging in consensual sexual activity with a fifth. All the women were summer interns at Russell McVeagh in December 2015.
It found the power imbalance between the young women and Gardner-Hopkins, a partner, was an aggravating factor in the offending, citing evidence of the “incalculable impact” on the victims.
“As one of them explained during the liability hearing, the fact that they were not safe from a partner led to a feeling that they could not be safe anywhere in the workplace. The effect on these young women’s careers was far-reaching. Some left the profession altogether, whilst others changed to different areas of the law.”
Pathway back?
The standards committee which originally examined the complaints against Gardner-Hopkins wanted him struck off permanently, but the tribunal decided on a two-year suspension, which was increased to three years on appeal.
To regain his practising certificate, Garner Hopkins must convince the Practice Approval Committee that he has undergone sufficient treatment and therapy that he is not at risk of reoffending.
In what it described as “a potential pathway” for Gardner-Hopkins to rejoin the profession, the tribunal suggested he engage a mentor and therapist before applying to regain his practising certificate.
It said full reports from the mentor and therapist should be available to the Practice Approval Committee and they should provide the committee with updates for at least six months if a decision was made to let Gardner-Hopkins rejoin the profession.
“It is clear to us that his abilities as a lawyer generally, and as an advocate in particular, are such that it will be beneficial to the public if he were readmitted to the profession in a rehabilitated state as soon as practicable after the period of suspension expires,” the tribunal said.
However, there is significant opposition to readmitting Gardner-Hopkins.
The Auckland Women Lawyers’ Association (AWLA), Wellington Women Lawyers’ Association (WWLA) and New Zealand Women’s Law Journal are among the groups that have made submissions to NZLS arguing against issuing a practising certificate.
“Granting Mr Gardner-Hopkins a practising certificate would undermine the integrity of the profession and send a deeply troubling message to the public and the legal community,” WWLA said.
“The requirement to be a ‘fit and proper person’ is not only about legal competence, but also about character, integrity and adherence to ethical standards.”
‘Opaque’ complains system
AWLA said if a practising certificate were issued, it was unclear what measures, protections or supervision would be in place to mitigate any risk Gardner-Hopkins posed to women.
As it stands, the public will know whether Gardner-Hopkins has been readmitted to the profession, and about any monitoring of his behaviour, only if the Practice Approval Committee chooses to release its findings.
It raises broader issues about the transparency of the complaints system for lawyers, which was described as “opaque” in an independent review released in 2023, which called for a new regulator to oversee the profession.
NZLS said that following the review, it advocated for reform of the Lawyers and Conveyancers Act 2006.
“The Minister of Justice [Paul Goldsmith] has signalled that wholesale reform of the Act is not a priority in the government’s current term,” it said.
“However, we remain committed to ongoing improvements, where possible. We have commenced a regulatory reform work programme considering changes that can be made to the current regulatory system without amendments to the primary legislation such as registration processes and review of the complaints model.”
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