You can only soil that which is unsullied – a response to an accusation of conduct unbecoming

This is a personal post from our CEO, Fionn Bowd.

In the midst of the painful and distressing news this week that Dyson Heydon systemically abused many young female associates in his care and sexually harassed many other female lawyers in his career, I received a complaint from a fellow lawyer in which he threatened to seek to have me struck off.

In the unlikely event any non-lawyers are reading this article, being struck off means to have one’s name removed from the Roll of Legal Practitioners. There is no greater fear for a lawyer than to have this occur. This is more than a loss of income, as it is also a loss of identity and community. It is equivalent to being exiled from one’s home and country.

This particular lawyer had taken issue with my social media posts regarding both Heydon’s conduct and the subsequent response of a number of male lawyers to the findings made by the current High Court Chief Justice and her investigator, a former Deputy Commonwealth Ombudsman.

My initial reaction to the complaint was one of terror. While I currently only practice on pro bono matters and otherwise run a business which advises law firms on management and people issues, like all lawyers, my self-identity as a lawyer is very strong. I set up my company because I believe in lawyers and in the practice of law, but I decided that I could do more good if I was standing outside the practice of law than I had managed to achieve when I was inside.

My next reaction was one of fury. The concept that a single angry woman, shouting into the void of social media about her disgust at male lawyers who are defending the former High Court judge and attacking our current Chief Justice, could bring the profession into disrepute requires that our profession have some meaningful reputation to uphold.

You can only soil that which is unsullied. And this week, no one can claim our profession is that.

Some have said that the actions of Chief Justice Kiefel should be seen as a sign of hope that our profession is capable of doing better. I wholeheartedly support our Chief Justice. However I hope you will forgive me if I withhold my optimism for the time being.

Here is the offending post.

The complainant, for reference, said my post was threatening, abusive and foul mouthed. He also said that he was “not sufficiently well informed to express a view on the substance of the debate”.

After spending time with my young children and seeking the counsel of other lawyers, I decided to refer the matter to the Legal Practice Board myself. I also wrote back to the complainant and I provide you with my response here.

Dear (sir)

I appreciate your professional tone and your choice to write to me directly on this matter.

I understand and accept that the post to which you refer was confronting and even shocking in its tone and expression. However I ask that you look within yourself to understand why you are so offended by a woman who is angry at her profession because it protected the known male perpetuator of sexual violence, and a woman who is angry at the male professionals who now publicly defend the actions of that serial sexual harasser or abuser. These male professionals also condemn the veracity of our current High Court Chief Justice and the victims themselves.

You do not seem to be offended by the High Court Judge who is accused of such conduct. You also do not seem to have any anger for those who defend him by calling the associates liars and the HC CJ motivated by unnamed and mysterious political gain.

You also do not seem to concern yourself with the impact on the reputation of our profession by the revelation of the ‘open secret’ of Heydon’s serial abuse, seemingly condoned by one of the former CJs of that bench. You also do not seem to concern yourself with the impact on the reputation of our profession of the loud voices within it who express a lack of faith in our current Chief Justice and the process she oversaw.

Indeed, despite the findings of an independent investigation and the decision and belief of our Chief Justice, on that matter you consider yourself “not sufficiently well informed to express a view on the substance of the debate”.

My understanding of your perspective is that only if you had personal knowledge of the matter would you consider yourself entitled to express a view on the routine and systematic abuse of young associates by a judicial officer, where those associates have been believed by our Chief Justice and the senior investigator, a former Deputy Commonwealth Ombudsman. You do not consider whether, by withholding your opinion you in fact impart that opinion. That there are still not sufficient facts or an appropriate investigation for you to have a view. By implication, sir, your view is no different to those who publicly undermine and criticise our current Chief Justice and the former Deputy Ombudsman. By withholding you support, you make your position clear.

However you do feel comfortable expressing a view on the public anger of a fellow professional at the conduct of Heydon itself and the subsequent conduct of other professionals. You are comfortable with your view that my anger at those who are undermining the process implemented by our CJ, is a matter for the fit and proper person test.

I expect you would say that it is not my anger itself, but my method of expressing it, that is the issue here. What is required is restraint, and my lack of restraint is unprofessional.

Is swearing (even representational or implied swearing) conduct unbecoming? I don’t think either of us will need to carry out research on this point. It is without doubt that we will find many examples of lawyers who have sworn publicly, for emphasis or for humour or in anger, and have not lost their right to practice. You may disagree with this conduct, but by itself it is certainly not cause for a loss of a practicing certificate.

Is anger unbecoming? I also have no doubt that we will have no trouble finding public expressions of rage and fury by members of our profession, none of which will have resulted in removal from the Roll.

So, perhaps the ‘threats’? The threat that men should ‘watch their step and mind their mouth’.

Certainly, if made to a specific person, that would appear to be conduct unbecoming. However a threat implies the ability to punish, the ability to carry out some kind of harm. So can a general statement made to a very large class of people be a ‘threat’? I don’t believe it can.

Was my post however ‘abusive’? In the context of the rest of my post which states that the matters being denied by many male practitioners have been proven through many surveys, with the intent to point out that male lawyers should be much less quick to jump to conclusions given those statistics and their own potential culpability, was I abusing male lawyers as a class?

Perhaps. However in the context of the subject matter, which you may wish to ignore but which I do not believe can be irrelevant, is my verbal ‘abuse’ of some male practitioners in the context of the physical abuse of young women by a former judicial officer, improper conduct?

I don’t believe so.

However, the accusation of improper conduct, of conduct unbecoming, is not a simple one. There is no formula to determine with certainty what actions will bring the profession into disrepute.

Consequently I have referred your complaint to the Victorian Legal Services Board, and I have provided them with the offending post as well as others of mine from this week. I have asked for their advice and assistance in helping me to determine whether my conduct is in fact unprofessional.

No doubt, this will not be the last either of us hears on this matter.

Fionn Bowd

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