NATIONAL STANDARDS COMMITTEE (NO 1) OF THE NZ LAW SOCIETY v GARDNER-HOPKINS [2022] NZHC 1709

NATIONAL STANDARDS COMMITTEE (NO 1) OF THE NZ LAW SOCIETY v GARDNER-HOPKINS[2022] NZHC 1709 [20 July 2022]THE PERMANENT SUPPRESSION ORDERS MADE BY THE TRIBUNALPURSUANT TO S 240 OF THE LAWYERS AND CONVEYANCERS ACT 2006IN ITS PENALTY DECISION OF 13 JANUARY 2022 ARE CONFIRMED.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-000094[2022] NZHC 1709BETWEEN NATIONAL STANDARDS COMMITTEE(NO 1) OF THE NEW ZEALAND LAWSOCIETYAppellantAND JAMES DESMOND K GARDNER-HOPKINSRespondentHearing:Court:30-31 May 2022Venning, Ellis and Hinton JJAppearances: D La Hood and T G Bain for AppellantJ Long and R Langdana for RespondentJudgment: 20 July 2022JUDGMENT OF THE COURTThis judgment was delivered by me on 20 July 2022 at 3.30 pm, pursuant to Rule 11.5 of the HighCourt Rules.Registrar/Deputy RegistrarDateSolicitors: Luke Cunningham Clere, WellingtonDK Law Limited, AucklandCounsel: J Long/R Langdana, AucklandIntroduction[1] Mr Gardner-Hopkins is a former partner in the law firm Russell McVeagh. Atthe time material to this judgment he was the manager of the firm's EnvironmentalPlanning and Natural Resources Team in Wellington.[2] On 24 June 2021 the New Zealand Lawyers and Conveyancers DisciplinaryTribunal (the Tribunal) found Mr Gardner-Hopkins guilty of six charges ofmisconduct.1 Five involved intimate non-consensual touching of four different youngwomen who had been employed as summer clerks at the firm. The sixth involvedconsensual sexual activity with a fifth young woman, also a summer clerk.[3] In its penalty decision delivered on 13 January 2022 the Tribunal censured MrGardner-Hopkins and suspended him from practice for two years from 7 February2022.2 The Tribunal also made orders for payment of the costs incurred by theStandards Committee, the Tribunal and the New Zealand Law Society.[4] The Standards Committee appeals against the penalty decision. The StandardsCommittee says Mr Gardner-Hopkins should have been struck off or at the least,suspended for the maximum period of three years.[5] Mr Gardner-Hopkins has cross-appealed. He says the Tribunal should haveimposed a shorter suspension than two years.Background: liability decision[6] The conduct the Tribunal found proved against Mr Gardner-Hopkins occurredon two occasions. The first occasion was the Russell McVeagh end-of-year Christmasfunction on 18 December 2015 in Wellington. Charges one to five (involving four ofthe young women) arose out of Mr Gardner-Hopkins' behaviour at that function.1 National Standards Committee No. 1 v Gardner-Hopkins [2021] NZLCDT 21, LCDT 022/20 [theliability decision]. It was unnecessary to consider a seventh charge which was laid as analternative.2 National Standards Committee No. 1 v Gardner-Hopkins [2022] NZLCDT 2, LCDT 022/20 [thepenalty decision under appeal].Charge six arose out of a second function at Mr Gardner-Hopkins' home for membersof his environmental law team on 21 December 2015.[7] In brief, in its liability decision, the Tribunal made the following findings onthe charges.[8] Charge 1 — the Tribunal accepted the evidence of Ms A:3We find it established that Mr Gardner-Hopkins, approached Ms A with nousual courtesies such as introducing himself, asking her name or in other waystreating her as a person and immediately embarked on physical invasion, touse the term used by Ms A, namely placing his hand below Ms A's hip, on orbelow her underwear line, he then instructed her to drink alcohol "scull thedrink" and then nuzzled into her face. [9] Charge 2 — the Tribunal also found Ms B to be a clear and credible witness.The core finding of the Tribunal was that Mr Gardner-Hopkins:4 made no attempt to relate to her as a person, showed little to no respect forher, put his arm around her waist, pulled her away from her group, and facingtowards her, repeatedly leaned in to put his mouth near her ear. Finally, hemoved his hands up and down her body until one came into contact with herbreast.[10] Charge 3 — the Tribunal found Ms C an equally persuasive and carefulwitness. It accepted her evidence that:5 the touching of her bottom was not an inoffensive brushing or jostling, butthat [Mr Gardner-Hopkins'] hand continued to move on it, after the initialtouch. The touching did not stop there but after having both hands around MsC's waist, one of Mr Gardner-Hopkins hands moved up under one of herbreasts in a motion that she described as caressing.[11] Charge 4 — the Tribunal similarly accepted the evidence of Ms D and foundMr Gardner-Hopkins had put his arm around her in a tight clasp, moved his hand onher bottom for some five seconds and then kissed her on the cheek.63 The liability decision, above n 1, at [117].4 At [121].5 At [124].6 At [127].[12] Charge 5 — the Tribunal found the core features of this charge well establishedand serious.7 While outside the venue waiting for taxis Ms B said Mr Gardner-Hopkins put his arm on her waist and pulled her so she was facing him. She had beenwearing a white t-shirt and red wine had been spilled on it. Both she and Ms A, whowas observing, described how he traced the red wine stain on her top across to herbreast with his hand. Ms B said he let his hand stay there asking her "what happenedhere"? Ms B says Mr Gardner-Hopkins then tried to get into the taxi with her, askingher a number of times to go home with him or if he could go home with her or to anightclub called El Horno. Other witnesses who were present were so concerned aboutthe safety of Ms B that they intervened to prevent Mr Gardner-Hopkins entering thetaxi with her.[13] Charge 6 — Mr Gardner-Hopkins admitted the facts of charge 6. Mr Gardner-Hopkins' house where the team function was held had, on its lowest floor, an indoorheated swimming pool and sauna. By the late hours of the party the numbers haddwindled and those present were using the pool and sauna. They were also drinkingwhiskey. At some point while in the sauna together, Mr Gardner-Hopkins and Ms K,who worked closely with him, began kissing and intimate touching. The intimacy wasobserved by at least one other person. [REDACTED] The Tribunal said that it wasnot necessary to record in detail what occurred. It was sufficient to say that thebehaviour "evidenced a prolonged and intimate interaction at a level that can fairly bedescribed as only just short of sexual intercourse".[14] Ms K did not give evidence before the Tribunal. Although Mr Gardner-Hopkins accepted the incident with Ms K occurred, he said the kissing and sexualcontact had been initiated by Ms K and, after some time, was brought to an end byhim.[15] The Tribunal found that Mr Gardner-Hopkins' conduct justified a finding thatMr Gardner-Hopkins was not, at the relevant time, a fit and proper person, or wasotherwise unsuitable to engage in practice as a lawyer. It went on to explain:[172] This view is based on our assessment that the five incidents oftouching were not accidental (it is not contended that Incident 6 was accidental7 At [129].touching). This decision affirms what has always been the case, namely thatindecent, unconsented or unwelcome touch by a lawyer on another, breachesthe standards of conduct expected of a member of the profession. Intimatenon-consensual touch connected with the workplace, on someone that thelawyer has power over, has always been unacceptable.[173] This is the case whether the lawyer intentionally touches thesubordinate, or has failed to self-manage to the extent that the lawyer'sconduct is inappropriately disinhibited. The profession expects of its membersthat those who work with lawyers are respected and safe. A basic behaviourexpected of lawyers towards those they work with is that they are respectfuland do not abuse their position of power. There is no place for objectificationof women or indeed any person, by those in the profession of law.Penalty decisionSeriousness[16] By the time of the penalty hearing, Mr Gardner-Hopkins had acknowledgedthat his actions amounted to serious misconduct. The Tribunal agreed, noting therehad been six instances of exploitative sexual conduct, with five different women attwo work events. Mr Gardner-Hopkins had set out to get drunk, at least on the firstoccasion. The Tribunal accepted the Standards Committee's submission that thestarting point for penalty must be strike-off.8Aggravating features[17] The Tribunal considered the aggravating features to be the number ofrepetitions on the first occasion in relation to four different women, and the powerimbalance, particularly in relation to the sixth charge. The "incalculable" impact onthe young women was noted. The Tribunal also appears to have accepted that theconduct could not be said to be entirely out of character for Mr Gardner-Hopkins.[18] The Tribunal accepted there were no personal aggravating features, "other thanhis intent to get drunk on the night of the firm's Christmas party", which it had takenaccount of when assessing "seriousness". It noted that Mr Gardner-Hopkins had noprevious disciplinary record.8 Penalty decision, above n 2, at [11].Mitigating features – consequences already incurred[19] In mitigation the Tribunal first took account of the "very significantconsequences" Mr Gardner-Hopkins had already experienced. He had been removedfrom partnership in Russell McVeagh and had suffered a loss in status and income. Hehad also suffered significant reputational and emotional loss. The Tribunal alsoaccepted that the law was a stressful and challenging profession and he had been leftostracised and isolated.Mitigating features – changes made/future risk[20] The Tribunal noted that Mr Gardner-Hopkins now accepted the Tribunal'sfindings and had directly apologised to the victims for the conduct.[21] It also acknowledged the steps Mr Gardner-Hopkins had taken to address hisconduct. It referred to the work Mr Gardner-Hopkins was undertaking with histherapist Dr Freeman-Brown, and noted he had significantly reduced his alcoholintake. The Tribunal also referred to the statement of evidence of Ms ShayneMathieson, who works in the area of workplace culture. She considered that MrGardner-Hopkins was not a risk to anyone at present. The Tribunal considered herevidence "helpful".[22] In summary, the Tribunal accepted that Mr Gardner-Hopkins had, "albeitbelatedly, and with a little less enthusiasm than we might have wanted to see", takenpositive steps to reflect, face up to and deal with the factors which had led to theconduct in question.Mitigating features – financial position[23] The Tribunal did not consider Mr Gardner-Hopkins' financial position to be asdire as suggested and noted that given the protective responses of the legislation,sympathy for the practitioner's personal circumstances could not be a defining feature.General penalty principles[24] The Tribunal then referred to the principles it considered were relevant todetermining penalty:(a) the purpose of disciplinary proceedings should not be punitive butprotective (of both the public and of the profession's reputation);(b) general deterrence;(c) the desirability of consistent penalties, by reference to other cases,particularly the cases of Daniels and Horsley;9(d) the purposes of strike-off and suspension, by reference to the decisionof Bolton v Law Society;10 and(e) the least restrictive outcome.11[25] In the context of its discussion of the fourth of these principles, the Tribunalsaid that, notwithstanding Mr Long's submissions to the contrary, nothing short of asignificant period of suspension sufficed to mark the seriousness of the misconduct,the harm to victims in this matter and the considerable therapeutic work stillrequired.12 It also noted the importance of considering "rehabilitation as a properrationale for suspension" and that, in Mr Gardner-Hopkins' case, four areas of relevantrisk had been identified:(a) problematic alcohol consumption practices;(b) poor understanding of professional boundaries;(c) loss of mentorship; and9 Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] 3 NZLR 850(HC); and Canterbury Westlands Standard Committee v Horsley [2014] NZLCDT 47.10 Bolton v Law Society [1994] 1 WLR 512 (CA).11 As discussed in the Daniels' decision.12 At [67].(d) failure to prioritise therapeutic needs and personal support.[26] It noted that at the end of the suspension period, it would be for Mr Gardner-Hopkins to satisfy the Practice Approval Committee (PAC): that he has undertaken appropriate treatment/therapeutic interventions tomitigate any risks that might remain from the four areas of concern that wehave identified.[27] The Tribunal expressly recorded that:In our view, without such evidence, it is extremely doubtful that a practisingcertificate would be reissued.[28] In an appendix to the decision the Tribunal set out the types of conditions itthought might later be imposed, or undertakings sought by the PAC, to protect thepublic from the risk of similar behaviour in future, in light of the four risk areas justnoted.Decision[29] Having regard to all these matters, the Tribunal concluded that a suspension oftwo years was the proportionate and proper penalty. As we have said, it also censuredMr Gardner-Hopkins and ordered him to pay costs.Preliminary mattersApproach to the appeal[30] Both the Standards Committee and Mr Gardner-Hopkins approached theappeal and cross-appeal on the basis that, as an appeal under s 253(2)(b) of theLawyers and Conveyancers Act 2006 (the Act), the appeal is to be treated as a generalappeal rather than an appeal against a discretion. In particular, they both referred tothe recent decision of the Court in Hong v Auckland Standards Committee No 5.13 Inthat case the Court said:1413 Hong v Auckland Standards Committee No 5 [2020] NZHC 1599; and, contrast, Emmerson v AProfessional Conduct Committee [2017] NZHC 2847 at [96].14 Hong v Auckland Standards Committee No 5, above n 13 (citations omitted).[54] An appeal to this Court under s 253 of the Act from a decision of theTribunal must be by way of rehearing. Whether the appeal is against a findingof misconduct or against penalty (with the exception of costs) the appeal is ageneral appeal.[55] The appellate court considers the merits of the case afresh. It must bepersuaded that the decision under appeal is wrong but the weight the appellatecourt gives to the reasoning of the court or tribunal below is a matter for theappellate court's assessment. The appellate court may consider it appropriateto give due regard to a specialist tribunal's assessment.[56] The parties to the appeal are entitled to judgment in accordance withthe opinion of the appellate court, even where that opinion is an assessment offact and degree and entails a value judgment. If the appellate court's opinionis different from the conclusion of the court or tribunal below, then thedecision under appeal is wrong in the only sense that matters, even if it was aconclusion on which minds might reasonably differ.[31] We agree that is the appropriate approach.Fresh evidence[32] Mr Gardner-Hopkins sought to adduce fresh evidence on his cross-appeal. Theevidence was from Sarah Bramhall, a consultant psychologist, who has been treatingMr Gardner-Hopkins since March this year, (although he initially contacted her inDecember 2021, after the penalty hearing but before the penalty decision was issued).Ms Bramhall gave evidence as to Mr Gardner-Hopkins' present treatment needs andthe progress that he has made.[33] The Standards Committee objected to the admission of the fresh evidence.[34] The High Court Rules 2016 apply to the appeal.15 The rule relating to furtherevidence on appeals is r 20.16. Leave may be granted to admit further evidence onthe appeal only if there are special reasons for hearing the evidence. Rule 20.16(3)provides that a special reason can be that the evidence relates to matters that havearisen after the date of the decision appealed against and that are or may be relevantto the determination of the appeal. The interests of justice are also a relevantconsideration.1615 Lawyers and Conveyancers Act 2006, s 253(3).16 B v A [2020] NZHC 580.[35] The Court provisionally admitted the evidence and Ms Bramhall was cross-examined by Mr La Hood.[36] After consideration of the principles and the evidence, we accept MsBramhall's evidence is both cogent and material. It is relevant to the issues that theCourt must consider, namely whether by reason of his conduct in 2015 and takingaccount of subsequent circumstances, Mr Gardner-Hopkins remains unfit to practiseas a lawyer. We therefore admit it for the purposes of the appeal.Points on appeal[37] In its notice of appeal the Standards Committee says the Tribunal erred byconcluding Mr Gardner-Hopkins was, by the time of the penalty decision, a fit andproper person to carry on practice as a barrister and solicitor and hence strike-off wasnot an appropriate outcome. In particular:(a) the Tribunal placed insufficient weight on the expert evidence of DrJane Freeman-Brown to the effect Mr Gardner-Hopkins had not yettaken sufficient steps to address the drivers of his misconduct;(b) the Tribunal placed undue weight on Mr Gardner-Hopkins' claimedefforts to address his alcohol consumption;(c) the Tribunal wrongly placed weight on the opinion evidence of ShayneMathieson as to the risk Mr Gardner-Hopkins posed;(d) the Tribunal's acknowledgement that "further therapeutic interventionsare required, and that will involve professional support for some timeinto the future" was inconsistent with the conclusion Mr Gardner-Hopkins was now a fit and proper person;(e) the Tribunal erred in law by concluding, contrary to Court of Appealauthority that it was required to "give weight to the principle thatmaximum penalties must be reserved for the most serious of cases";(f) the Tribunal erred in its assessment of the seriousness of themisconduct;(g) the Tribunal wrongly took into account plainly incorrect decisions byStandards Committees in other cases of sexual impropriety; and(h) the Tribunal placed undue weight on the claimed mitigating factors.[38] For the above reasons the Standards Committee says the appeal should beallowed and Mr Gardner-Hopkins struck off.[39] In the alternative, the Standards Committee says the Tribunal erred inconcluding that a period of suspension less than the statutory maximum of three yearswas sufficient to achieve the purposes of the Act.Points on cross-appeal[40] In his cross-appeal Mr Gardner-Hopkins says the Tribunal erred by:(a) considering his admission that he went to the Christmas party intendingto get drunk was a feature that went to the seriousness of the conduct;(b) accepting that the evidence about the culture in his team, the powerimbalance, (without explicit exploitation) and the offending not beingentirely out of character, were aggravating features;(c) giving no or no sufficient weight to the accepted consensual nature ofthe interactions that occurred between him and Ms K;(d) incorrectly assessing his financial circumstances, and his likely abilityto find alternative work during any period of suspension;(e) failing to give any or sufficient weight to mitigating features of hisconduct and the post-conduct period; and(f) in its application of the "least restrictive" outcome principle.[41] Mr Long submitted the errors could be grouped into three categories:(a) Error 1 — the Tribunal's assessment of Mr Gardner-Hopkins' conduct.The Tribunal was influenced by irrelevant considerations, and failed totake account of relevant considerations;(b) Error 2 — the Tribunal's assessment of the consequences to MrGardner-Hopkins; and(c) Error 3 — the Tribunal's assessment of the risk Mr Gardner-Hopkinsnow posed.Relevant law[42] Section 242(1)(c) of the Lawyers and Conveyancers Act 2006 (the Act)provides that if a person is found guilty of misconduct the Tribunal may order theirname be struck off the roll. Section 244(1) confirms that a strike-off order may not bemade unless, in the Tribunal's opinion, the practitioner is, by reason of the conduct,not a fit and proper person to be a practitioner.[43] While a finding that by reason of the conduct the practitioner is not a fit andproper person is a qualifying requirement for an order for strike-off, such a findingdoes not automatically lead to an order for strike-off. Whether to strike-off or notremains a discretionary decision for the Tribunal under s 242(1)(c).[44] The competing arguments by the Standards Committee and Mr Gardner-Hopkins are to be considered against the purpose of the penalties provided for in theAct.[45] In Bolton v Law Society, the Court of Appeal of England and Wales noted thatpenalties in this context are primarily directed to one or other or both of twopurposes:17One is to be sure that the offender does not have the opportunity to repeat theoffence. This purpose is achieved for a limited period by an order ofsuspension; plainly it is hoped that experience of suspension will make theoffender meticulous in his future compliance with the required standards. Thepurpose is achieved for a longer period, and quite possibly indefinitely, by anorder of striking off. The second purpose is the most fundamental of all; tomaintain the reputation of the solicitors' profession as one in which everymember, of whatever standing, may be trusted to the ends of the earth.[46] The importance that standard setting plays in terms of public confidence inmembers of the profession was discussed by a Full Court of this Court in Daniels vComplaints Committee 2 of the Wellington District Law Society:18[34] In considering sanctions to be imposed upon an errant practitioner, adisciplinary tribunal is required to view in total the fitness of a practitioner topractise, whether in the short or long term. Criminal proceedings of coursereflect badly upon the individual offender, whereas breaches of professionalstandards may reflect upon the wider group of the whole profession, and willarise if the public should see a sanction as inadequate to reflect the gravity ofthe proven conduct. The public are entitled to scrutinise the manner in whicha profession disciplines its members, because it is the profession with whichthe public must have confidence if it is to properly provide the necessaryservice. To maintain public confidence in the profession members of thepublic need to have a general understanding that the legal profession, and theTribunal members that are set up to govern conduct, will not treat lightlyserious breaches of standards.[47] In Hart v Auckland Standards Committee 1 of the New Zealand Law Society,the Full Court accepted that the nature and gravity of the charges will generally beimportant and will likely inform the decision to a significant degree because they maypoint to the fitness of the practitioner to remain in practice.19 In some cases they maybe determinative. In cases involving lesser forms of misconduct, the manner in whichthe practitioner responds to the charges may also be a significant factor as mayprevious disciplinary history.17 Bolton v Law Society, above n 10, at 518.18 Daniels v Complaints Committee 2 of the Wellington District Law Society, above n 9.19 Hart v Auckland Standards Committee 1 of the New Zealand Law Society [2013] NZHC 83, [2013]3 NZLR 103 at [186]–[187].[48] In Ellis v Auckland Standards Committee 5, the Court referred to the abovedecisions noting that the penalty was to be the "least restrictive" and that the followingwere relevant considerations:20(a) the nature and quality of the misconduct established;(b) previous disciplinary history;(c) any evidence of remorse or insight;(d) the need for deterrence; and(e) any aggravating or mitigating features.[49] In New Zealand Law Society v Stanley, the Supreme Court considered whatwas required to meet the standard of being a "fit and proper person" in the context ofan opposed application for admission by Mr Stanley, who had previous criminalconvictions.21 The Court summarised the relevant principles as follows:22(a) The purpose of the fit and proper person standard is to ensure thatthose admitted to the profession are persons who can be entrusted tomeet the duties and obligations imposed on those who practise aslawyers.(b) Reflecting the statutory scheme, the assessment focusses on the needto protect the public and to maintain public confidence in theprofession.(c) The evaluation of whether an applicant meets the standard is a forwardlooking exercise. The Court must assess at the time of the applicationthe risk of future misconduct or of harm to the profession. Theevaluation is accordingly a protective one. Punishment for pastconduct has no place.(d) The concept of a fit and proper person in s 55 involves considerationof whether the applicant is honest, trustworthy and a person ofintegrity.(e) When assessing past convictions, the Court must consider whetherthat past conduct remains relevant. The inquiry is a fact-specific oneand the Court must look at all of the evidence in the round and make20 Ellis v Auckland Standards Committee 5 [2019] NZHC 1384 at [21].21 New Zealand Law Society v Stanley [2020] NZSC 83, [2020] 1 NZLR 50.22 At [54].a judgement as to the present ability of the applicant to meet his or herduties and obligations as a lawyer.(f) The fit and proper person standard is necessarily a high one, althoughthe Court should not lightly deprive someone who is otherwisequalified from the opportunity to practise law.(g) Finally, the onus of showing that the standard is met is on theapplicant. Applications are unlikely to turn on fine questions of onus.[50] In determining whether to make a strike-off order the Tribunal (and this Courton appeal) will look at the nature and circumstances of the misconduct, thepractitioner's past history, and the steps the practitioner has taken and is taking toensure that such conduct does not occur again. In some cases, it will be apparent thepractitioner is not able or willing to change or address his or her behaviour sufficientlyso they will remain unfit to practise law.Discussion[51] In our assessment of the merits of the matters raised by the appeal and cross-appeal we largely adopt the same headings (addressed in the same order) as did theTribunal.Seriousness[52] In its liability decision the Tribunal found Mr Gardner-Hopkins' conduct to bedisgraceful or dishonourable under s 7(1)(i) or at least a reckless breach of r 12 of theLawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008falling under s 7(1)(a)(ii) of the Act.23[53] Mr La Hood submitted that Mr Gardner-Hopkins had effectively been foundliable for sexual assault and sexual exploitation. Having found the misconduct wasserious enough that the starting point was strike-off, the Tribunal erred by notimposing that penalty. Further, it erred by noting it was required to give weight to theprinciple that maximum penalties must be reserved for the most serious of cases.24 Hereferred to cases in a sentencing context where the Court of Appeal has emphasised23 The liability decision, above n 1.24 Penalty decision under appeal, above n 2, at n 22.that it is always possible to imagine a hypothetical worse case, but if headroom isreserved for them, the maximum penalty will never be imposed. Therefore it is anerror of principle to save the most serious penalties for the hypothetical "most seriousof cases".25 In any event, he submitted the present was a particularly serious case.Analysis[54] Mr Gardner-Hopkins' actions were serious. All the young women wereparticularly vulnerable. Quite apart from his physical presence and the age differencebetween them, as a partner of the firm, Mr Gardner-Hopkins was responsible for theirsafety and wellbeing. It is also relevant that the young women were summer clerks.This was their first placement with a legal firm and they were dependent on positivereports from the partners of the firm if they intended to further their legal careerswhether with or outside the firm. This was a pivotal experience for them. Mr Gardner-Hopkins seriously breached the trust that was imposed on him and his actionsundoubtedly affected their futures in the law.[55] While the touching involved in the five incidents on the first occasion was briefin time, it involved intimate touching in the presence of others. We accept withouthesitation it has had a significant effect on each of the victims. The brief nature of thetouching does little to mitigate its seriousness.[56] The incident involving Ms K was different. On the evidence before theTribunal it involved consensual intimacy between the two of them, which may havebeen initiated by Ms K. However, while it is important to recognise Ms K's autonomy,the context in which the intimate contact occurred is relevant. Ms K, too, was asummer clerk, and in her case particularly dependent upon Mr Gardner-Hopkins forreferences for her future employment. She was at his home in connection with a workfunction. Alcohol was freely available and its consumption encouraged. She, withothers, was also encouraged to use the pool and sauna. Mr Gardner-Hopkins chose tosit in the sauna with her after they had both consumed a lot of alcohol.25 R v Beri [1987] 1 NZLR 46 (CA) at 48; R v Fulcher [1987] 2 NZLR 233 (CA); R v Xie [2007] 2NZLR 240 (CA) at [26]; and R v Lata [2018] NZCA 615 at [42].[57] Mr Gardner-Hopkins should have realised that, by dint of the matters justmentioned, Ms K was vulnerable. He should have appreciated the considerable powerimbalance between them. Even accepting Mr Gardner-Hopkins did not initiate thekissing, he responded willingly and allowed the intimacy to proceed further. It wasentirely inappropriate for him to do so, let alone permit it to escalate. In acting as hedid towards Ms K, Mr Gardner-Hopkins breached the duty of care and trust owed toher as a young employee of his firm.Aggravating features[58] Mr La Hood submitted that Mr Gardner-Hopkins' exploitation of the fivesummer clerks was not out of character and was a manifestation of an attitude towardswomen that was firmly entrenched in his practice. He referred to the further evidenceabout the culture within the team lead by Mr Gardner-Hopkins within RussellMcVeagh.[59] Mr Long rejected the Standard Committee's characterisation of the conduct assexual assault or sexual exploitation and said the Tribunal's findings did not go thatfar. He submitted that the Tribunal erred by taking a number of irrelevantconsiderations into account in assessing the seriousness of the misconduct, such as MrGardner-Hopkins' intention to get drunk on the first occasion, the negative "teamculture" evidence raised at the liability hearing, and the power imbalance (without anyexpress exploitation of it). He also criticised the Tribunal's observation that MrGardner-Hopkins' conduct could not be considered out of character. Further, heargued the Tribunal had failed to give proper weight to relevant considerations, suchas the consensual nature of Mr Gardner-Hopkins' interaction with Ms K, which hadbeen initiated by Ms K.Analysis[60] We agree with the Tribunal that Mr Gardner-Hopkins' deliberate excessiveconsumption of alcohol at the Christmas party, in the knowledge that, when drunk, hehad "no respect for personal boundaries" is, to a degree, an aggravating factor. Thatsaid, we accept that there is no evidence he intended to get drunk in order to touch theyoung women in the way he did. But certainly his inebriation does not constitute anexcuse for his actions.[61] We have some reservations about the Tribunal's reliance on the "laddishculture" of the team led by Mr Gardner-Hopkins to support its conclusion the conductwas not out of character. While we accept that some of the evidence disclosed a teamculture (fostered by Mr Gardner-Hopkins) that is, quite rightly, no longer regarded asacceptable, that is a wider issue. It does not significantly inform the seriousness of theconduct giving rise to the charges.Mitigating features – consequences already incurred[62] Mr La Hood submitted the Tribunal was wrong to have taken certain factorsinto account as mitigating. He submitted it was wrong for the Tribunal to take intoaccount the professional consequences already suffered by Mr Gardner-Hopkins. Hesaid such consequences were not relevant to whether he was a fit and proper person,referring to the Supreme Court's decision in Stanley where the Court confirmed thetest is objective and should not be "influenced by sympathy for the position of theapplicant".26[63] In response, Mr Long submitted the Tribunal erred in the way it dealt with theassessment of the professional consequences of a lengthy suspension and overstatedMr Gardner-Hopkins' ability to find alternate work during the suspension period.Analysis[64] We consider the Tribunal erred by regarding the financial and professionalconsequences to Mr Gardner-Hopkins as mitigating factors. The fact that Mr Gardner-Hopkins was required to resign from the Russell McVeagh partnership, and lostconnection with the profession, was an inevitable consequence of his actions. Givenhis conduct, it is unsurprising that he may have been unwelcome at some professionalevents. Other negative consequences that have flowed from the misconduct are notpositive factors in Mr Gardner-Hopkins' favour in the context of disciplinary26 New Zealand Law Society v Stanley, above n 21, at [39].proceedings. The object of the disciplinary process is primarily protective. Thepersonal considerations that might lead to a reduced sentence in a criminal contexthave less impact in a disciplinary setting.27[65] We therefore conclude that the Tribunal was in error in making the allowancesit made for mitigating circumstances in fixing the penalty.Mitigating features – Changes made/future risk[66] Mr La Hood submitted that, in imposing suspension rather than striking off,the Tribunal had failed to reach a firm conclusion whether Mr Gardner-Hopkins wasin fact a fit and proper person. The overall tenor of the Tribunal's decision was thathe was not. He pointed, in particular, to the Tribunal's observation that, without further"appropriate treatment", it was doubtful that the PAC would issue a practisingcertificate in two years' time; the guidance for the PAC set out in the appendix to thedecision could only be seen as a reflection of its view that Mr Gardner-Hopkins wasnot presently fit and proper.[67] Mr La Hood argued that Mr Gardner-Hopkins had broken the trust placed inhim as a practitioner and had not earned it back. The onus was on him to satisfy theTribunal of that and he had not provided sufficient evidence that he had made real,durable changes to his attitudes and behaviours. If that was the case, he should havebeen struck off.[68] More specifically, Mr La Hood submitted that despite the lapse in time betweenthe events in late December 2015 and the penalty hearing in December 2021, MrGardner-Hopkins had not taken the opportunity to fully rehabilitate himself over thatperiod. He made the point that Mr Gardner-Hopkins had originally seen Dr Freeman-Brown for six months in 2018 but then disengaged with her and did not see her againuntil November 2020 when the Committee brought the charges against him. He notedDr Freeman-Brown's answer in response to his question why there was that gap:I think there are two hypotheses. One, is that James' motivation for seekingpsychological treatment at the time that he originally came in 2018 wasperhaps extrinsic. The other hypothesis was that he is quite avoidant at27 A v National Standards Committee [2020] NZHC 563 at [93].addressing his issues and that he needs something to become quite imminentbefore he starts to address it so certainly I think perhaps both of thosehypotheses may be in balance correct, but certainly his mental health was quitepoor when he contacted me by telephone in November 2020.[69] Mr La Hood also referred to Dr Freeman-Brown's conclusion that:There is still considerable work to be completed on the deeper, corepsychological issues that led to James' unhealthy alcohol use and poor workboundaries and behaviour It is the professional opinion of the writer, thatthese issues are yet to be fully resolved.[70] While accepting that Mr Gardner-Hopkins' alcohol misuse had "received someattention", Mr La Hood submitted that was modest and recent as at the date of thehearing. It was also based on self reporting and largely untested. The Tribunal haderred in accepting that Mr Gardner-Hopkins had significantly reduced his alcoholintake and in any event had overemphasised Mr Gardner-Hopkins' drinking habits inrelation to the offending. He said the Tribunal should have put little, if any, weight onthe statement of Ms Mathieson.[71] Mr La Hood also submitted the Tribunal was insufficiently sceptical of MrGardner-Hopkins' expressions of remorse. He emphasised that Mr Gardner-Hopkinshad chosen to put the young women through the further ordeal of giving evidence atthe liability hearing and had not apologised at all for that. He contended that neitherthe Tribunal nor this Court could be satisfied that he took his conduct seriously.[72] On Mr Gardner-Hopkins' behalf, Mr Long submitted the Tribunal erred byfailing to give sufficient weight to Mr Gardner-Hopkins' good conduct before, and inthe now more than six years after, the events in question. He noted that despite thescrutiny Mr Gardner-Hopkins has been under, no further issues, historic or morerecent, have come to light or been reported. He emphasised the penalty regime was"prophylactic, not punitive".28[73] While acknowledging the need for general deterrence, Mr Long submittedconsideration of specific deterrence required consideration of the likelihood of MrGardner-Hopkins repeating the behaviour. He submitted the Tribunal had failed to28 Ellis v Auckland Standards Committee 5, above n 20, at [78].have proper regard to the references submitted on Mr Gardner-Hopkins' behalf andthat a proper analysis of Dr Freeman-Brown's and Ms Mathieson's evidence shouldhave provided reassurance that Mr Gardner-Hopkins was addressing the issues whichhad led to his misconduct. Finally, he criticised the suggestion that Mr Gardner-Hopkins had engaged in a "strategy of avoidance". Mr Gardner-Hopkins had onlybecome aware of the formal allegations against him in mid to late 2019, as theStandards Committee was concluding its investigation.Analysis[74] In cases involving an application for admission to the roll the Supreme Courthas confirmed the evaluation of fitness to practise is a forward looking exercise.29While the present case involves consideration of whether to strike-off or not, it stillrequires an assessment of whether Mr Gardner-Hopkins can be said now to be a fitand proper person to remain on the roll of legal practitioners. An assessment must bemade of the risk Mr Gardner-Hopkins poses of future misconduct or of harm to theprofession.[75] It follows we accept that, on appeal, we must also undertake a forward-lookingexercise. The relevant assessment of fitness and propriety must be made today, andthe steps taken to address the misconduct since it occurred will be a relevant and, insome cases, important consideration. In that sense, the effluxion of time since themisconduct potentially works in Mr Gardner-Hopkins' favour.[76] As noted earlier, Mr Gardner-Hopkins' acknowledged four areas of risk are:(a) problematic alcohol consumption;(b) poor understanding of professional boundaries;(c) loss of mentorship; and(d) failure to prioritise therapeutic needs and personal support.29 New Zealand Law Society v Stanley, above n 21, at [38].[77] Mr Gardner-Hopkins was seriously affected by alcohol on both occasions ofhis misconduct. He has taken steps to address his abuse of alcohol and alcoholdependency. The Tribunal accepted the evidence of Dr Freeman-Brown that MrGardner-Hopkins had achieved "early remission of problematic drinking". There wasongoing and planned monitoring of his lowered alcohol use.[78] It is also relevant that the misconduct was restricted to two occasions, bothclosely connected in time, at a time when Mr Gardner-Hopkins was experiencingdifficulties in his personal life, and that it has not been repeated. As noted, no furthercomplainants have come forward alleging behaviour of that nature. Given the high-profile nature of the proceeding it is likely they would have done if such incidents hadoccurred. Against that, a number of women have confirmed in the references providedto the Tribunal that Mr Gardner-Hopkins has acted appropriately towards them, bothbefore and after those incidents.[79] Mr La Hood suggested the positive reference from a woman who had workedwith Mr Gardner-Hopkins from 2004 until approximately 2009 should be put to oneside as that was a number of years before the incidents and prior to him becoming apartner. While her evidence was historical, in terms of the character of Mr Gardner-Hopkins it is relevant that offensive behaviour towards women did not seem to beembedded or part of his character at that time.[80] We also consider the Tribunal was entitled to have regard to the evidence ofMs Mathieson. While not a forensic psychologist, given her experience Ms Mathiesonis qualified as an expert in workplace culture, systems and working relationships.Such expertise is clearly relevant. She was able to offer an opinion as to whether MrGardner-Hopkins posed a risk in the legal workplace. Ms Mathieson confirmed thatshe has worked with Mr Gardner-Hopkins to develop ways to ensure that the factorswhich led to his behaviour were not repeated. She confirmed that in her opinion MrGardner-Hopkins is now aware of the issues that triggered the behaviour which sawhim face the Tribunal. He now has a number of mechanisms to avoid such situationsin the future and a better self-awareness. While accepting that a large component ofMr Gardner-Hopkins seeking help was the perceived benefit in being seen to dosomething in relation to his behaviour, she was satisfied that he is now motivated tobecome a better person. In her opinion he is extremely unlikely to present any risk ofinappropriate behaviour towards clients or fellow professionals in the future.[81] We consider the fresh evidence of the consultant psychologist, Ms Bramhall,of particular assistance. Her evidence was measured and fair. She acknowledged thework that Mr Gardner-Hopkins still has ahead of him but confirmed that Mr Gardner-Hopkins now accepts responsibility for his past actions. In her opinion his motivationin continuing to seek her assistance is intrinsic. There has been a shift from theexternal driver (the pressure of these proceedings) so that his commitment to thesessions now involves internal motivation to engage and to address the treatmentgoals. She however considers that there is still some way to go and in her opinionsomething in the region of another nine to 12 months, or 16 to 20 sessions, could berequired.[82] Both parties also sought to rely on the observation by the Tribunal member,The Hon P Heath QC that past conduct is the best predictor of future conduct. MrLong referred to it, noting that since 2015 there had been no repeat of the misconductand a number of people had provided references in support of Mr Gardner-Hopkins.Mr La Hood also noted the principle but submitted that the relevant past conduct wasthat Mr Gardner-Hopkins had fostered a highly sexualised work environment, sexuallyassaulted four summer clerks, attempted to induce one to come home with him, andthen subsequently engaged in the activity with Ms K. He had initially lied about theincident with Ms K when questioned by the firm and had kissed her again in front ofcolleagues. He said he would be aggrieved if he had to leave Russell McVeagh as aresult of his conduct and then had initially engaged but then disengaged with DrFreeman-Brown. He initially had denied the allegations.[83] We consider the only past conduct of any particular relevance in Mr Gardner-Hopkin's case is the misconduct in issue itself. It must be acknowledged that themisconduct was repetitive, albeit over a very short period of time. But as we havenoted, there are no previous instances of such misconduct. Also, again, the mattersraised by Mr La Hood are in part answered by the steps that Mr Gardner-Hopkins hassince taken to address his issues.[84] This case is different to the majority of, in fact almost all, cases that comebefore the Tribunal and the Court in that it is not Mr Gardner-Hopkins' conduct in thecourse of his practice or dealing with clients which is in issue. There is no suggestionother than that Mr Gardner-Hopkins is a very competent practitioner in his field ofexpertise. It was his personal behaviour towards (young) women that is of particularconcern. As we have noted, it is relevant that the behaviour occurred on two closelyconnected, but separate social occasions. On both occasions Mr Gardner-Hopkins wasseriously affected by alcohol. He has taken significant steps to address his abuse ofalcohol.[85] While Mr Gardner-Hopkins did deny the incident with Ms K when initiallychallenged by his firm we accept that was in part at least, because Ms K and he hadagreed to do so.[86] However, Mr Gardner-Hopkins took some time to accept responsibility for theother incidents. He defended them before the Tribunal which would no doubt haveincreased the anxiety of the young women involved.[87] We do note though, as the Tribunal did, there is now some insight on MrGardner-Hopkins' part of the impact of his actions on the young women. That is alsoconfirmed by the, albeit belated, apology he offered during the penalty hearing.[88] Taken overall, the evidence before the Tribunal (and now Ms Bramhall'sevidence before this Court) supports Mr Long's submission that Mr Gardner-Hopkinshas taken and is continuing to take appropriate steps to address the risks identified bythe Tribunal.Mitigating features – financial position[89] Mr Long submitted that the Tribunal was wrong to find that Mr Gardner-Hopkins' financial situation was "not as dire as suggested" and the costs it imposedwere significant. Combined with a two year suspension the situation was "dire" fromMr Gardner-Hopkins' point of view. Mr Long also submitted that the Tribunal hadoverstated Mr Gardner-Hopkins' ability to find other work during any period ofsuspension.Analysis[90] We agree with the way the Tribunal dealt with Mr Gardner-Hopkins' financialposition. The statements of income and expenditure filed on his behalf allowed for"unavoidable" living costs of $144,000 a year after tax. A budget at that level doesnot suggest dire circumstances. In any event, we do not consider a practitioner'sfinancial position operates as a mitigating factor in disciplinary proceedings. Also, tosome extent this argument overlaps with Mr Long's first argument as to professionalconsequences already suffered, which we have found not to be a mitigating factor.Consistency[91] Disciplinary proceedings against a lawyer involving allegations of sexualmisconduct are not common and cases involving allegations of sexual misconductwith a person other than a client are even rarer.[92] The two decisions concerning sexual misconduct between lawyer and clientspecifically referred to by the Tribunal were Daniels (in the High Court) and Horsley(in the Tribunal).30 Although reference was also made to a relatively recent StandardsCommittee decision with facts not dissimilar to the present, the Tribunal's view wasthat that decision was plainly wrong, an assessment with which we agree.31Accordingly, we do not therefore consider that decision further.[93] In Daniels, the most serious charge was of having sexual intercourse with aclient at a time when she was still a client and in circumstances which wereinconsistent with, or an abuse of, the relationship of trust between the practitioner andclient. The client was a vulnerable and impoverished woman with a troubledbackground. Mr Daniels had acted for her in both the Family Court and in the DistrictCourt. Although he had undertaken not to practise again, the Tribunal suspended himfor three years citing the need to maintain public confidence in the profession.30 Daniels v Complaints Committee 2 of the Wellington District Law Society above, n 9; andCanterbury Westlands Standard Committee v Horsley, above n 9.31 ZTUVK Notice of Determination by Standards Committee, 25 October 2018, discussed at [71] ofthe Penalty decision.[94] In Horsley, the practitioner entered a sexual relationship with a former client,but then acted for her on criminal charges while continuing the intimate relationship.When the relationship was discovered he initially denied it, before acceptingresponsibility for his conduct. The Tribunal took account of the practitioner's prior 30years of good conduct and considered that was just sufficient to pull the penalty backfrom strike-off to the maximum period of suspension.[95] Mr La Hood submitted the Tribunal was wrong to classify Mr Gardner-Hopkins' behaviour as less serious than the conduct at issue in those two cases. Hesaid that, while both Daniels and Horsley involved exploitative sexual relationshipsneither involved sexual assault.[96] Mr La Hood submitted that, in any event, neither Daniels nor Horsley shouldbe uncritically accepted as relevant precedents. Daniels was an appeal by thepractitioner, rather than the Standards Committee, and the Court was not called uponto determine whether strike-off would have been an appropriate outcome. Also, bothDaniels and Horsley predated the quite profound change in attitude towards sexualharassment over the last decade. Overall, he said Mr Gardner-Hopkins' conduct wasamong the most serious kind of sexual misconduct and there was no reason to avoidthe most serious penalty.[97] In response, Mr Long submitted the Tribunal was correct to find Mr Gardner-Hopkins' conduct was less egregious than that at issue in Daniels and Horsley. In bothof those cases, the clients had placed their trust, confidence, reliance and faith in thepractitioners. The practitioners were representing the clients on serious and emotionalissues. There was a clear fiduciary relationship. Mr Long also emphasised the lengthof the relationships in those cases.Analysis[98] As both counsel really accepted, the facts of Daniels and Horsley are materiallydifferent from the present. They involved consensual sexual relationships of someduration with a vulnerable client. Here, the only consensual conduct involved Ms Kand it was a brief, one-off encounter. As we have already said, however, Ms K wasundoubtedly also, but in a different way, vulnerable. The misconduct involving theother four young women was not consensual.[99] As well, we agree with Mr La Hood that there has been a profound societalchange in attitude towards sexual harassment over the last decade and that shift inperception is important when considering penalty in light of the need to maintain theconfidence of the public in the legal profession. For that reason—and because of thedifferences already noted—we do not ultimately consider the decisions in Daniels andHorsley useful comparators.[100] Taken overall, we regard Mr Gardner-Hopkins' misconduct as serious. Weagree with the Tribunal's characterisation of it as exploitative sexual contact withvulnerable young women. It is conduct that is wholly unacceptable in the legalprofession.[101] We also agree with the Tribunal's assessment that the starting point should bestrike-off for misconduct such as Mr Gardner-Hopkins' in 2015 and with Mr LaHood's submission that strike-off—as the most serious sanction—is not just to bereserved for the worst possible case. There may be variations or different examplesof serious misconduct, all of which could require a very serious sanction, be it strike-off or the maximum period of suspension. As noted, disciplinary sanctions are notconcerned with punishment but with protection of the public, and of the profession'sreputation. If the behaviour warrants strike-off or suspension for three years then thatis the penalty that should be imposed.Summary[102] Drawing the threads from the above together, the relevant considerationsparticularly applicable to Mr Gardner-Hopkins' case are:• Although the sanction is not imposed as a penalty as such, and the focusis forward looking, the penalty must still reflect the seriousness of thepast behaviour and conduct.• Is strike-off required to maintain the reputation of the profession andpublic confidence or will suspension achieve that?• Will a period of suspension ensure Mr Gardner-Hopkins will complywith the required standards of the profession in the future — essentiallya risk assessment exercise?• In assessing the above, the nature and quality of the misconductestablished and Mr Gardner-Hopkins' character, are particularlyrelevant considerations.[103] Mr Gardner-Hopkins' actions towards the five complainants is properlyregarded as serious, exploitative, sexual misconduct.[104] Mr Gardner-Hopkins' conduct in 2015 was not that of a fit and proper person.Had the Tribunal or this Court been considering his case much closer to that time themisconduct would have justified striking off: that is what the twin protectivedisciplinary aims of protection of the public and of the profession's reputation wouldhave required.[105] It was Mr Gardner-Hopkins' conduct at the time which meant he was not a fitand proper person. Apart from the misconduct towards the young women there is nosuggestion that Mr Gardner-Hopkins is anything other than a competent practitioner.At this time the risk Mr Gardner-Hopkins might engage in similar conduct in futurehas considerably diminished. We say that in particular because of the therapeuticinterventions in which he has engaged (and in which he will continue to engage) andhis changed life circumstances (both personal and professional). The absence of anyfurther complaints and his past clear disciplinary record provide support for thatconclusion. The Tribunal's recommendations to the PAC will arguably act as a furtherbackstop.[106] However, the need to protect the profession's reputation remains and has notdiminished. It is vital that the public can and does have confidence that practisinglawyers will act honourably and with integrity. As the Court observed in Daniels:32The public are entitled to scrutinise the manner in which a professiondisciplines its members, because it is the profession with which the publicmust have confidence if it is to properly provide the necessary service. Tomaintain public confidence in the profession members of the public need tohave a general understanding that the legal profession, and the Tribunalmembers that are set up to govern conduct, will not treat lightly seriousbreaches of standards.[107] Mr Gardner-Hopkins' actions can rightly be seen as having dented thatconfidence and it is important that the profession responds appropriately. Even thoughthe behaviour in the present case did not occur in the course of provision of servicesto a client, members of the public and of the profession should be able to haveconfidence that practitioners entering the profession at a junior level will be safe andtreated with respect by other members of the profession. The profession's penaltyresponse to egregious behaviour of the kind Mr Gardner-Hopkins exhibited in 2015 isrightly in the spotlight.[108] Equally, however, Mr Gardner-Hopkins has become the public face of seniorlegal practitioners behaving inappropriately towards young employees within theprofession. It is important that the sanction imposed on him reflect his behaviour, andnot be elevated just to make an example of, or to scapegoat, him. Mr Gardner-Hopkinsis to be sanctioned for the specific behaviour that gave rise to the charges against him,not the past wrongs of the profession as a whole, or of certain segments of it.[109] In the end, the principal factor that favours suspension rather than striking offis the steps that Mr Gardner-Hopkins has taken in the six years since late 2015 andcontinues to take, to address the underlying issues which led to his misconduct. Theevidence satisfies us that (with professional assistance) Mr Gardner-Hopkins does nowrealise the extent of his misconduct and he has developed and is continuing to developstrategies to ensure that it does not happen again.32 Daniels v Complaints Committee 2 of the Wellington District Law Society, above n 9, at [34].[110] Mr Gardner-Hopkins' personal and relationship shortcomings are not ofthemselves aggravating circumstances.[111] We are satisfied that a penalty of suspension will ensure Mr Gardner-Hopkins'future compliance with his professional obligations. However, we also consider thatthe maximum period of three years together with the censure is required to reflect theseriousness of the misconduct in this case. Suspension for the maximum of three yearsis the "least restrictive outcome" appropriate.33 We do not consider the "minimumcredible suspension" approach in Jefferies v National Standards Committee to beparticularly helpful or applicable in this case.34Result[112] For the above reasons we consider that the Tribunal was correct to find thatstrike-off was not required. However, we consider the Tribunal did fall into error inaccepting as mitigating factors the financial and professional consequences to MrGardner-Hopkins, and further in placing this case as less serious than Daniels orHorsley. Taken in context and overall, Mr Gardner-Hopkins' misconduct and sexualexploitation of the young women warranted the most serious response available shortof strike-off, so that a suspension of three years was required.[113] To that extent the appeal by the Standards Committee is allowed. The ordersuspending Mr Gardner-Hopkins for a period of two years from 7 February 2022 isquashed. The suspension is to run for a period of three years from 7 February 2022.[114] The cross-appeal is dismissed.Costs[115] Costs should follow the event. We allow for second counsel. In the event theparties cannot agree memoranda should be exchanged.33 Daniels v Complaints Committee 2 of the Wellington District Law Society, above n 9, at [22].34 Jefferies v National Standards Committee [2017] NZHC 1824, [2017] NZAR 1323 (HC).Suppression[116] The permanent suppression orders made by the Tribunal pursuant to s 240 ofthe Act in its penalty decision of 13 January 2022 are confirmed.Venning, Ellis and Hinton JJ