The Bar Association is committed to promoting and encouraging a high standard of ethical conduct among barristers.[1]
In general, bullying is repeated and unreasonable behaviour directed towards a person that can cause physical or mental harm. Bullying may include physical, verbal, psychological or social dimensions. Examples include actions that victimise, humiliate, intimidate or threaten a person.[2]
This page discusses bullying in the profession and judicial bullying.
Professional obligations
The New Zealand Law Society, and not the Bar Association, has the responsibility to discipline lawyers practicing in New Zealand. However, the Bar Association requires its members adhere to the ethical duties set out in the Lawyers and Conveyancers Act (Lawyers Conduct and Client Care) Rules 2008 (CCC Rules).
Barristers are expected to act in the best interests of their clients and to be fearless and robust in the presentation of their clients’ case. They are also required to give their clients the benefit of their independent judgment and advice. These duties can require barristers to be direct and firm when dealing with clients, courts and tribunals, and other lawyers.
However, Rule 10.1 of the CCC Rules states that "A lawyer must, when acting in a professional capacity, treat all persons with respect and courtesy."
It is important that barristers exercise care when dealing with others in a robust manner, not to go too far and breach the obligations of respect and courtesy. In addition, barristers need to be conscious of the impact of their behaviour on others around them. In the Association’s view, there is no place in the modern bar for disrespectful behaviour that impacts the wellbeing of others.
Bullying in the profession
Bullying and harassment may breach of the CCC Rules, resulting in a finding of misconduct or unsatisfactory conduct under the Lawyers and Conveyancers Act 2006.
The following definitions apply under Rule 1.2 of the CCC Rules.
bullying means repeated and unreasonable behaviour directed towards a person or people that is likely to lead to physical or psychological harm.
discrimination means discrimination that is unlawful under the Human Rights Act 1993 or any other enactment.
harassment —
a. means intimidating, threatening or degrading behaviour directed towards a person or group that is likely to have a harmful effect on the recipient; and
b. includes repeated behaviour but may be a serious single incident.
racial harassment means behaviour that—
a. expresses hostility against, or contempt or ridicule towards, another person on the ground of race, ethnicity, or national origin; and
b. is likely to be unwelcome or offensive to that person (whether or not it was conveyed directly to that person).
sexual harassment means —
a. subjecting another person to unreasonable behaviour of a sexual nature that is likely to be unwelcome or offensive to that person (whether or not it was conveyed directly to that person); or
b. a request made by a person of any other person for sexual intercourse, sexual contact, or any other form of sexual activity, that contains an implied or overt promise of preferential treatment or an implied or overt threat of detrimental treatment.
Rule 10.3 provides that:
A lawyer must not engage in conduct that amounts to 1 or more of the following:
a. bullying;
b. discrimination;
c. harassment;
d. racial harassment;
e. sexual harassment;
f. violence.
Rule changes brought into force on 1 July 2021 require lawyers to report to the Law Society if they have reasonable grounds to suspect that another lawyer may have engaged in misconduct. More information is available on the Law Society website.
Are you being bullied or harassed?
If you are being subjected to bullying or harassed by a lawyer, please contact the Law Society. Depending on the nature of the harassment, you may want to consider making a complaint to the police or to the Human Rights Commission.
Conduct in court by a Judge
While we would all like to think that our courtrooms are free from bullying behaviour, the reality is that there may be occasions when counsel either witness or are subject to “judicial bullying”.
The Heads of Bench[3] have agreed on an informal process for dealing with concerns raised by counsel about judicial conduct which might depart from the standards under published guidelines. A practitioner might use this process where they do not want to make a formal complaint under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.
Members of the profession can raise concerns about conduct in court by judges with the Law Society through an informal process that has been agreed with the Heads of Bench. For more information see the judicial protocol.
The process is not suitable for allegations of serious misconduct. It is for occasions when a practitioner does not want to invoke the formal complaints process available under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, but is concerned about a pattern of behaviour thought to be inappropriate.
If you would like to use this process, or get more information about it, please email us for the contact details of the President of the Bar Association.
[1]Rules of the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture Incorporated, rule 2.1.5
[2] This definition is taken from Employment New Zealand “Bullying“ (https://www.employment.govt.nz/resolving-problems/types-of-problems/bullying-harassment-and-discrimination/bullying/ accessed 8 December 2023)
[3] Chief Justice, President of the Court of Appeal, Chief High Court Judge, Chief District Court Judge, Chief Māori Land Court Judge, Chief Employment Court Judge, Principal Environment Court Judge; Principal Family Court Judge, Principal Youth Court Judge, Chief Judge of the Court Martial, Chief Coroner.
