A male partner who sang a song about a trainee solicitor’s vagina, accompanied by lewd gestures, at a Christmas party gathering in a pub has been fined £23,000.
But the Solicitors Disciplinary Tribunal (SDT), which also ordered him to pay costs of £22,800, found that the contact between them in the following months showed the impact was not as bad as the trainee had made out.
Unusually, the identity of the partner, known only as ‘AC’, was kept private, which the tribunal said was for health reasons.
‘Person A’ had been a trainee at the unnamed London firm for three months at the time of the 2017 Christmas party. People moved onto a pub afterwards, at which Person A recorded AC singing “[Person A’s] vagina is lovely. I like it. It likes it up the arse but also in the vag”.
The SDT said accompanying gestures included “cupping his right hand and moving it twice in front of his genitals”.
Person A submitted a formal complaint to the firm in June 2019, shortly after learning that she would not have a job on qualification. It contained a number of grievances, including this incident.
Although they had only met in person once before the party, the SDT said email exchanges between the pair had been “informal and jokey”; it was likely “they communicated in the same friendly and jokey manner in person”.
AC said he sang the song in response to Person A’s challenge to say something “outrageous” or similar. Person A denied this.
Person A said that, in the course of filming others in the pub with her mobile, she turned and started recording AC shortly before he started to sing the offending song.
The SDT found that “difficult to reconcile” with the fact that the video started as soon as AC started singing Person’s A’s name and ended as soon as he stopped singing. Unchallenged expert evidence was that the video had been “trimmed”, which Person A had denied.
The tribunal said it was not satisfied on the balance of probabilities that AC launched into the offending song “unprovoked and absent any interaction with Person A immediately prior to so doing”.
Person A told the SDT that she had been “shocked and humiliated to be spoken to in such a degrading fashion” but felt she “had no choice but to accept it”. She did not complain due to her “vulnerability as a trainee”.
Two email exchanges between the pair that took place a few months later were examined by the SDT. Person A said that, as she wanted to qualify into the team where AC was a partner, she felt she needed to maintain “some kind of relationship with him”.
The first referenced AC submitting a poem for publication and whether he should use a pen name. When he asked if she had any suggestions, Person A wrote: “I assume one uses the same equation you use to discover your porn name.”
The SDT said the fact she had taken the conversation in this direction was difficult to reconcile with her evidence that it made her feel uncomfortable and objectified.
The next exchange saw her ask AC whether there were Friday night drinks at his office (they worked in different offices) that she and some colleagues could join.
“The tribunal determined that she was demonstrably comfortable in so doing particularly given that (i) AC did not respond until the early hours of the morning to say that he was not at any drinks, (ii) Person A chose to continue the conversation by informing him in response that she was ‘drunk emailing’ him, (iii) inviting him to join her group for drinks and (iv) providing her mobile telephone number.”
While Person A “plainly suffered direct harm” from the song, the SDT said, it was “not to the extent that she advanced in evidence”.
It went on: “Had that been the case, the tribunal determined that she would not have instigated friendly communications in the terms that she did nor would she have reached out to AC for assistance in progressing at the firm.”
AC told the tribunal that, notwithstanding differences in recollection of the circumstances around the video, he did not want that to detract from his “unreserved apology [for] arrogant and vulgar behaviour”, from which he did not recognise himself.
He accepted that the offending video “betrayed the trust [in him] as a colleague” and that it had a “pernicious effect on Person A”.
He added that, since the incident, he had had a lot of time to reflect and accepted that his “misguided attempts to be collegiate had the opposite effect”.
The firm did not discipline AC following an investigation, while character statements before the SDT said the video did not reflect “his true character”.
In deciding that a fine for the “very serious” misconduct was appropriate, the SDT said AC acted as he did “following an express ‘invitation’ from Person A”.
“However, the words used, the gestures that elected to deploy, the fact that he was a partner, at a work event, with colleagues present and in a public setting represented a grave breach of his position of trust.
“The fact that it was highly likely that AC was intoxicated did not vitiate the direct control that AC had in response to the ‘invitation’ to say something ‘naughty/outrageous’…
“The public would be rightly appalled by the disgraceful incident irrespective of whether it was precipitated by [the invitation].”
The misconduct was mitigated by the fact that it was a single episode that lasted six seconds, while AC had shown “demonstrable insight” and made “open and frank admissions”.