By Paul Gregoire and Ugur Nedim
On 5 June 2017, junior solicitor Ms X was seated in a conference room at the NSW Supreme Court, looking visibly distraught after having spoken to the court registrar in regard to a further delay in proceedings due to matters relating to her client.
At that point, barrister David Raphael entered the room and on seeing the young woman, whom he’d only just met, he remarked in reference to her wedding ring, “Won’t your husband get jealous because we are spending so much time together? He will think something is going on.”
As the discussion between the legal team colleagues progressed, Ms X became visibly upset and commenced crying. So, 78-year-old Raphael placed his arms on the woman’s shoulders, bent forward, and kissed the top of her head. He then said, “Don’t worry you poor thing.”
After a few more minutes, X seemed to have recovered, according to the older man, as she’d ceased crying. And after another short period, the pair went back to see the registrar, who made orders to extend the timeframe of the case.
On 21 December last year, Raphael appeared before the NSW Civil and Administrative Tribunal (NCAT) in relation to the encounter with Ms X, and he admitted that his actions in the conference room amounted to sexual harassment.
The guts of the case
The scenario in the conference room set out above is a summary of the agreed facts at David Raphael’s NCAT hearing.
A statement of agreed facts is produced by both parties involved in a case, and, as stipulated in section 191 of the Evidence Act 1995 (NSW), these facts don’t need to be supported with evidence, and they can’t be contradicted.
Ms X submitted five complaints to the NSW Bar Association in regard to Raphael’s conduct, and it went on to commence the NCAT proceedings against him.
The barrister agreed to the second complaint, in that, his placing his hands on Ms X’s shoulders and kissing her on the head – taken together with the two comments – did constitute unsatisfactory professional conduct. And the other four remaining complaints were then dropped.
Section 296 of the Legal Profession Uniform Law (NSW) (the Uniform Law) describes unsatisfactory professional conduct as behaviour “that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer”.
Section 298 of the Uniform Law provides that any contravening of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (Barristers Rules) can constitute unsatisfactory professional conduct.
In the case of Raphael, regulation 123 of the Barristers Rules was breached as he’d engaged in what amounted to sexual harassment and workplace bullying.
Regulation 8 was also broken as the behaviour of the lawyer – who’s been practising for over half a century – was found to likely “diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute”.
The NCAT members explained the finding of sexual harassment engaged the definition in section 22A of the Anti-Discrimination Act (NSW). This includes “unwelcome conduct of a sexual nature”, which a reasonable person would anticipate could offend, humiliate or intimidate the other.
“There was a vast power imbalance,” the NCAT members further stated, outlining that Ms X was a young, inexperienced solicitor, while Raphael was “an extremely experienced older barrister”. It was also noted that Raphael’s advanced age didn’t detract from how his behaviour would be viewed.
“We accept that Mr Raphael’s remarks and conduct were intended to console Ms X and lighten the mood,” the NCAT members said, adding that “viewed objectively”, though, the behaviour “had sexual undertones” and it was reasonable to expect resulting offence, humiliation or intimidation.
The NCAT members outlined that while Raphael had admitted he’d breached certain standards, he’d only come to the conclusion that he’d acted inappropriately quite late in the day, as for months following the incident, he continued to label his behaviour as “innocent and innocuous”.
Several character references were submitted to the tribunal, and while they were favourable, the referees were all aware of the barrister’s questionable behaviour in relation to women, which had obviously been raised with him in the past.
In relation to how to reprimand the barrister now in his mid-80s, the members noted that the reputation of the profession itself was at stake, and they cited NSW Chief Justice Tom Bathurst mentioning in February that sexual harassment in the profession is an issue that needs addressing.
Changing lifetime habits
The tribunal members further stated that they accepted Raphael was ignorant to the impact his behaviour could have, and that this was of “considerable concern”, especially as the problem of sexual harassment in the profession has gained widespread media attention.
“Mr Raphael needs to understand that this kind of conduct is not perceived by the vast majority of women as being comforting, chivalrous or even vaguely humorous,” the NCAT members made clear.
“Sexual harassment of this kind has the potential to adversely affect a victim’s mental health and to dissuade her from continuing a career in the law.”
The barrister had submitted that he was willing to undertake one hour’s training in relation to how his conduct needed to be altered, which he would pay for. But those at the NCAT didn’t believe one or two hours of training would be enough to change the habits of a lifetime.
The NSW Bar Association recommended that the barrister undertake a combination of both counselling and education for a period of at least eight hours, which should be completed within a given timeframe and paid for by Raphael.
On 16 April this year, the NCAT members found Raphael guilty of unsatisfactory professional misconduct and that he be reprimanded because of it.
NCAT Deputy President Nancy Hennessy, Principal Member Peter Callaghan and General Member Elayne Hayes ruled that the barrister ought to undergo eight hours of education and counselling, with the individual or service provider to be determined by the NSW Bar Association.