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Lawyer’s 4.5-month licence suspension for sexual, racial harassment called ‘slap on the wrist’

Thursday, August 04, 2022 @ 9:38 AM | By Cristin Schmitz

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A recent decision by the Law Society of British Columbia suspending the licence of a managing partner for four-and-a-half months for repeatedly sexually and racially harassing his employees has renewed concern that Canadian legal regulators are still not doing enough to combat sexual and racial harassment by legal professionals, including failing to protect vulnerable lawyers, staff and clients from such invidious abuses of power by more senior members of the bar.

The Law Society of B.C. Tribunal Hearing Division issued written reasons July 12, 2022, for what the panel described as its “strong sanction” of Rowan Mackenzie Davison: Law Society of British Columbia v. Davison, 2022 LSBC 23.

The tribunal accepted the joint submissions on facts and penalty put forward by the B.C. legal regulator and Davison, which also require the 66-year-old lawyer, with 30 years at the bar, to pay $3,500 in law society costs, and implement “anti-sexual harassment and anti-discriminatory policies and procedures” at Dreyer Davison Lawyers LLP of Langley, B.C., where Davison practises family law, child protection and wills and estates.

According to the firm’s website, its “team” currently comprises 11 members, including Davison and his law partner, Joan Dreyer, who is also his spouse, as well as two associates, an articling student, two paralegals, three legal assistants and administrative staff.

Davison admitted to incidents of unwelcome remarks and unwanted conduct of a sexual nature in the workplace and in work-related contexts between 2018 and 2021.  His actions — which people said caused them considerable and continuing distress, including a complainant stating she felt unsafe in coming to work — included unwanted propositions for sex and sexual advances, as well as unwelcome and non-consensual physical contact such as “massaging” an employee’s shoulder without her consent, unwelcome frequent hugs and kissing (and attempts to kiss) employees, and unwelcome and frequent sexualized comments such as telling one employee her ponytail was akin to “bondage hair,” informing a co-worker that her voice was seductive and that she was “looking hot”, asking an employee whether she was wearing a bra, and twice suggesting to an employee at legal conferences that she room with him and his wife.

The panel’s reasons state that Davison also admitted to creating a hostile work environment, via intimidating and humiliating racist comments to staff about Asian, South Asian and Indigenous persons, as well as by wrongfully directing two staff members in 2020 that they were not to hire any “brown” people at the firm. One employee, who had never worked in a law office before, said she wasn’t sure if the sexual and racial comments were customary in law firms, and felt she had to change the clothes she wore and the things she said to avoid being judged by Davison for being of South Asian descent. Another employee, who said she was propositioned for sex, said she was very uncomfortable and became anxious from his racial and sexual comments. She experienced hair loss, and had to go on medical leave due to panic attacks she experienced at night. Having left the firm, she said she is still seeing a counsellor to help her deal with continuing anxiety and anger for having to endure the behaviour and watch others go through it as well.

Rule 6.3 of the Code of Professional Conduct for British Columbia explicitly states that a lawyer must not discriminate against any person, or sexually or otherwise harass any person.

“We find that the respondent’s conduct in sexual harassment and the creation of a toxic workplace amounts to professional misconduct,” the B.C. law society tribunal wrote. “The respondent made remarks and engaged in conduct of a sexual nature at the firm and also made remarks of a racist or discriminatory nature to several employees, which constitutes a marked departure from that conduct the law society expects of lawyers.”

In accepting Davison’s and the law society’s joint proposal for a 4.5-month suspension along with two practice conditions, plus $3,500 in costs, the tribunal said the punishment it was agreeing to fell within the range of sanctions previously imposed by other law societies for similar misconduct and meets “the public interest in the administration of justice.”

The law society tribunal noted that Davison was in a position of power in relation to the complainants, his misconduct occurred in front of witnesses, his misconduct continued after regulatory proceedings had commenced, and his disciplinary record includes a conduct review for similar behaviour in the past.

(Before Davison was penalized in July for professional misconduct, he underwent a law society conduct review in 1996 for his conduct in engaging in a sexual relationship with a client for a second time. The subcommittee’s view was that his behaviour “was serious in the extreme,” the B.C. law society tribunal said. After Davison offered his assurance that his conduct would not reoccur, “no further action was taken,” the tribunal said.)

“Misconduct relating to sexual harassment and racial discrimination by lawyers are serious matters that require the panel to give the greatest weight to public interest and the maintenance of public confidence in the legal profession and the disciplinary process,” the tribunal said.

According to the tribunal’s written reasons, Davison is the only reported decision to date by a Canadian legal regulator involving allegations of racial discrimination made by an employee against an employer.

The tribunal said its decision is only the second reported B.C. law society decision addressing the issue of sexual harassment.

Moreover, the panel cited fewer than 10 decisions by Canadian legal regulators addressing sexual harassment by lawyers since 1999, notwithstanding that surveys have shown that sexual abuses of power in the work context are endemic in the legal field, both domestically and globally.

Some of those Davison subjected to sexual and racial harassment, most of whom were female, told the B.C. law society via victim impact statements that they are still grappling with the trauma they experienced. 

Although the harms victims experience from sexual and racial harassment can be severe and last for years, if not forever, the handful of cases cited by the B.C. regulator in Davison indicate that Canadian law society penalties imposed on lawyer-perpetrators for sexually harassing clients and staff have been comparatively mild and transitory, mostly ranging from fines and practice conditions, to licence suspensions between 30 days and six months (albeit in one 1999 Ontario case, there was an 18-month suspension) — and one disbarment.

(By way of comparison, the 2022 guidance on sanctioning such professional misconduct, from the U.K.’s Bar Tribunals and Adjudication Service, recommends a 12-month suspension from practice as the minimum end of the range of penalties for “misconduct of a sexual nature” and “discrimination and non-sexual harassment.”)

By contrast, Canadian law societies bring the regulatory hammer down harder on lawyers who steal or misuse clients’ money — including frequent disbarments. Last June, for example, the B.C. law society accepted a Surrey, B.C., lawyer’s admission of professional misconduct for misappropriating $450,000 of client funds, barring him from having his licence reinstated for at least 12 years.

Simona Jellinek, Jellinek, Ellis Gluckstein Lawyers

Simona Jellinek, Jellinek, Ellis Gluckstein Lawyers

Commenting on the B.C. law society tribunal’s approval of the penalty jointly proposed by Davison and the legal regulator, Simona Jellinek of Toronto’s Jellinek, Ellis Gluckstein Lawyers asked “four and a half months — what is that? It’s nothing in a lawyer’s career.”

Jellinek told The Lawyer’s Daily that, in her view, the B.C. tribunal’s penalty for sexual and racial harassment sends “the wrong message.”

“It sends a message that somehow what a lawyer does, in that sense, is less important than — or is less worse than — appropriating money or things of that nature,” she suggested.

The experienced civil litigator, who often sues on behalf of clients who were sexually abused or sexual assaulted, said the law society tribunal’s decision on penalty “also sends a message, frankly, to the people who are being harassed that the law society doesn't put a lot of weight on it.”

“At the end of the day I think that this is a professional responsibility that goes above and beyond a slap on the wrist,” Jellinek remarked. “You’ve got a serial harasser here, that has physically touched someone as well, and he gets four and a half months, but somebody who misappropriates some money loses their licence.”

“Why are we placing more value on money, then we are on people's personal integrity and employment security?” Jellinek queried. “That's a problem for me.”

B.C. law society spokesperson Jason Kuzminski told The Lawyer’s Daily the regulator “has demonstrated commitment to continuous improvement of its regulatory approach to sexual misconduct, discrimination and harassment.”

Kuzminski said by e-mail the law society “has developed, and begun implementing, measures to facilitate reporting, investigating and addressing complaints” — including establishing a dedicated e-mail address and telephone line to receive inquiries and complaints; training staff who investigate complaints in trauma-informed practices; and using consent agreements to resolve complaints where people express concerns about being retraumatized in the hearing process.

The Davison discipline case also marks the first time victim impact statements were used at the law society, Kuzminski said. “The statements, which were read to the tribunal hearing panel by law society counsel, ensured that the voices of the employees who experienced or witnessed the misconduct were heard.”

Kuzminski also said the Davison discipline case marks the first time that the B.C. legal regulator has imposed a condition requiring a disciplined lawyer to retain an external lawyer to receive and investigate any complaints related to sexual harassment and discrimination.

Jennifer Chow, Law Society of British Columbia

Jennifer Chow, Law Society of British Columbia

The B.C. law society’s tribunal was chaired by bencher Jennifer Chow, a senior counsel with the federal Department of Justice, who wrote the reasons for decision, and comprised also lawyer Nicole Byres and lay bencher Paul Barnett.

Harassment is demonstrably a serious problem within the legal profession in Canada and abroad.

The latest semi-annual report from the Law Society of Ontario’s Discrimination and Harassment counsel indicates that “there continues to be a notable increase in complaints about lawyers engaging in explicit racial and sexual harassment in public contexts and public online platforms (including in connection with litigation) as well as in communications directly targeting the complainant”.

Notably the International Bar Association (IBA) recently found that bullying and harassment is “rife” in legal workplaces globally.

The IBA’s 2018 survey of 6,980 lawyers and other legal workers in 135 countries (including 571 in Canada) found one in three female respondents, and one in 14 male respondents, had been sexually harassed at work or in work-related contexts. Most respondents were under age 40.

The survey identified chronic underreporting of incidents, three-quarters of sexual harassment cases not reported for reasons including the perpetrator’s profile and the target’s fear of repercussions

The IBA’s 2019 report, titled: “Us Too? Bullying and Sexual Harassment in the Legal Profession” indicated that common forms of sexual harassment included sexist comments, sexual and sexually suggestive comments, inappropriate physical contact, and sexual propositions. The report said 22 per cent of sexually harassed respondents had been fondled, kissed or groped, while three per cent reported they had been sexually assaulted. Sexist comments were far less common among sexually harassed male respondents (31 per cent), while sexually suggestive comments directed at males were higher in relative terms (at 55 per cent — i.e. this was the most common form of sexual harassment experienced by male respondents, albeit still less prevalent than among female respondents.

On average, female legal workers were harassed in a greater variety of ways.

A follow-up IBA report June 27, 2022, titled “Beyond Us Too? Regulatory Responses to Bullying and Sexual Harassment in the Legal Profession” said the trend in sanctions by legal regulators, and decisions about the scope of regulators to regulate — citing examples from the U.K. and Australian contexts — exemplified “a dissonance between stated regulatory efforts, and the findings and penalties delivered by disciplinary tribunals.”

The report said this “dissonance” becomes even more pronounced when compared to the typical sanctions passed down for other forms of misconduct — particularly financial misconduct — where disbarment is not uncommon. “A dissonance in the treatment of sexual and financial wrongdoing has also been observed in other contexts. Continued low-level sanctions (or no sanctions at all) may discourage targets of harassment from reporting to their regulator, and act as a disincentive to regulators proceeding with such disciplinary matters.”

Guidance on sanctions from the U.K. Bar Tribunals and Adjudication Service on Jan. 1, 2022, emphasized that it is “important that misconduct of these types is marked by serious sanctions to maintain public confidence, act as a deterrent and encourage the reporting of such misconduct.”

Moreover, the U.K. tribunals service admonished that “mitigation based on the respondent’s personal circumstances, health, good character/references needs to be treated with caution in the context of sexual misconduct, discrimination and harassment. The nature of such misconduct means that serious sanctions are required to protect others and promote standards regardless, in most instances, of the respondent’s own circumstances. Many practitioners will face personal challenges, such as ill-health, bereavement and divorce, but do not resort to committing misconduct.”

Law society rules in Canada prohibit harassment although none expressly prohibit “bullying”. In 2020, the Federation of Law Societies’ of Canada Standing Committee on the Model Code of Professional Conduct proposed changes to model Rule 6.3 on discrimination and harassment that provide more guidance on lawyers’ professional duties of non-discrimination and non-harassment, including specific guidance with respect to bullying.

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