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Solicitor who secretly videoed harassment claims “Asperger’s” defence

17 July 2014

Judge Pamela Jenkins has described a solicitor’s conduct as "intolerable, disgraceful and dishonourable" and ordered that he be temporarily prevented from practising law after finding that his sexual harassment behaviour amounted to professional misconduct.

The case was referred to VCAT after an earlier ruling from Justice Garde found that the solicitor had sexually harassed a legal trainee in 2011. The trainee was employed by the solicitor and was completing her practical training with his firm as part of a legal practice graduate diploma. The sexual harassment included;

  • showing the trainee a video of a Russian prostitute performing a sexual act on him;
  • massaging her shoulders in his locked office;
  • getting his partner to send the trainee a picture of him naked; and
  • making numerous sexual advances, including 78 requests for sexual intercourse in a one-hour meeting in his office on 4 July that he filmed without the trainee’s knowledge.

eeotraining.com.au I Anti Bullying EEO Harassment and Discrimination

Part of the Respondent’s defence rested on the testimony of psychologists who asserted that he had Asperger’s Syndrome which might somewhat explain his poor behaviour and render him less able to properly understand the consequences of his behaviour. Judge Jenkins disagreed, stating:

“..there is no credible basis for the diagnosis of an autism spectrum disorder or that such disorder compromised the Respondent’s ability to think or act rationally or appropriately in a social or professional context.

In addition to the cancellation of his practising certificate for a period of eight months, the judge ruled that any subsequent certificate issued after this time would be subject to the solicitor’s presentation of medical evidence that he was fit to practise. A further condition was also imposed, that for a period of two years he would not be permitted to employ or supervise any female law student or graduate in the same circumstances as the trainee.

In handing down the judgement and determining punitive measures Judge Jenkins noted:

The package of sanctions appropriate to the serious charge of professional misconduct must be directed:

  1. primarily at protecting the public, in circumstances where I cannot be satisfied that the Respondent is not at risk of reoffending in a similar manner; and I cannot be satisfied that he has shown appropriate insight and acceptance of responsibility for his misconduct and the detrimental effect which it had upon the Complainant;
  2. specific and general deterrence; and
  3. denunciation of the misconduct.

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