The tribunal heard that Mr Raphael approached the woman in the room about issues she was having with her client. When he entered, he asked if her husband would get jealous because they were “spending so much time together” – despite this being the first time they met – and alluded that “he will think something is going on”. Mr Raphael’s lawyers said a power position was not present in this exchange and that while his words and actions were inappropriate comfort, it was not an overt sexual approach.

When the junior solicitor became “visibly upset” and started crying, Mr Raphael placed his arm on her shoulder for between 10 to 20 seconds and kissed the top of her head. The agreed facts state that while he was doing this, he then said, “don’t worry you poor thing”. He admits this constituted unsatisfactory professional conduct. 

“It was an unwelcome act of physical intimacy. Having regard to the circumstances, a reasonable person would have anticipated that [the solicitor] would be offended, humiliated and intimidated by the conduct,” the tribunal wrote in the judgement. 

In his affidavit, Mr Raphael explained his conduct was “attempted chivalry” and states he did “not consider at the time that there was the slightest sexual aspect”. On reflection, he characterised the events as a “misguided attempt… to console a younger female solicitor, and to try and help her”. He accepts the physical touching was “wholly inappropriate” and that he will ensure it does not happen again. 

The tribunal heard that he only recently admitted the misconduct and that he would take steps to prevent it from happening in future. Three months after the conduct, he “responded very differently”, informing the NSW Bar Association that there was a “world” of difference between a comforting gesture and a sexual overture.

“This could not have been perceived as anything other than the former. It is probably true to observe that, at least in more recent times, any tactile act however innocently intended, can be misinterpreted,” he wrote. “In my submission it falls well short of any conduct which could be considered of a sexual nature or bullying.” 

Responding to the complaint of the comment about her husband, he submitted that he was trying to “allay” her distress by “lightening the mood, by changing the subject and by a flippant comment”. He suggested that because he was a grandfather, the comment “could not have been taken seriously” and went on to say that “it may be thought a silly comment, but that was, indeed, the point of it”. 

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Mr Raphael agreed to being counselled – but for just one hour – and requested that instead of a reprimand, he should receive a caution. He said that the caution would be enough for the tribunal to be confident that his conduct would not happen again. 

On deciding between the reprimand and the caution, the tribunal considered the recent attention in the judiciary, the media and the wider profession on the prevalence of sexual harassment. In particular, they referenced the Honourable Chief Justice Tom Bathurst’s opening address of the 2021 law term, in which he said that it is an “unfortunate reality” that women leave the profession because of this. 

The tribunal also relied on character references, which defended Mr Raphael’s style of humour and his approach at comfort, but they also made reference to how his remarks “could be regarded as sexist” and that he had been “openly chided by his male friends for making statement[s] that are inappropriate”. 

The tribunal accepted that he did not intend to distress, upset, humiliate or embarrass the solicitor and that he was “apparently totally ignorant” of the likely effect it could have on her. This lack of understanding is of a “considerable concern”, especially considering extensive media coverage and comments by his friends. 

“Mr Raphael needs to understand that this kind of conduct is not perceived by the vast majority of women as being comforting, chivalrous or even vaguely humorous. Sexual harassment of this kind has the potential to adversely affect a victim’s mental health and to dissuade her from continuing a career in the law,” the tribunal wrote, adding that due to this, his conduct justified a reprimand over a caution. 

In terms of his request for just one hour of counselling, the tribunal said that the evidence has demonstrated that, until recently, Mr Raphael had “virtually no appreciation” of the seriousness of his behaviour or its potential impact. 

“We accept that Mr Raphael intends to change his behaviour. Such a change is highly unlikely to occur following an hour or two of counselling. We consider a minimum of eight hours to be necessary for there to be a reasonable likelihood that Mr Raphael will change what appears to be the habits of a lifetimelaw,” the tribunal wrote.

The entire judgement can be accessed on AustLII: Council of the NSW Bar Association v Raphael [2021] NSWCATOD 44 (16 April 2021).