Neil Sands
A pornography-addicted lawyer who was censured and suspended for three months late last year has been publicly named by a disciplinary tribunal, which found identifying him was in the public interest even though “he appears to have conquered these demons”.
The Lawyers & Conveyancers Disciplinary Tribunal acknowledged that Waikato-based Damian Paul Botherway was anxious about the prospect of his name being published and said “his personal embarrassment is not a strongly persuasive factor [for name suppression]but it deserves note”.
The tribunal also noted the impact of Botherway’s behaviour on women at his law firm who were exposed to pornography through his actions, saying: “They felt horror, shock, disgust, discomfort, embarrassment, and shame. Their work environment was thus rendered toxic and emotionally unsafe.”
The tribunal was told at a hearing last year that Botherway traumatised female staff for years at his law firm by openly watching pornography at work, sometimes several times a day.
He was ordered in December to pay more than $25,000, including $5,000 each to two of his victims, $15,000 in costs to the National Lawyers Standards Committee and reimbursement of costs to the Lawyers and Conveyancers Disciplinary Tribunal.
However, his identity at the time was subject to non-publication orders pending an appeal. The tribunal’s deputy chairman John Adams published his findings on Monday, naming Botherway after the appeal was dropped. The names of the complainants remain permanently suppressed.
Adams said it would be “odd” to contemplate name suppression for a lawyer who was being suspended, as the suspension must be publicly recorded.
“Any person who correlated dates and decisions could work out the identity of the practitioner,” he said.
‘No similar case’
Adams said Botherway was aware the tribunal process was public and pointed to precedents setting out that “open justice is a prima facie presumption at the tribunal as the legal profession needs to know about disciplinary proceedings.
“We accept that the circumstances of this case are likely to attract publicity, partly because there has been no similar case,” he said.
“The charge does not involve clients; it concerns employer duties. Safety to clients is not a factor. The profession and the community may nevertheless be interested in noting how the parameters of professional discipline extend in facts like these.”
Adams said Botherway’s therapist has spoken about his client’s shame and guilt. He also noted the context of the disgraced lawyer’s actions.
“This judgment conveys balancing context such as: the mental health driver of the compulsive behaviour; that the misconduct, although amounting to harassment, was neither criminal nor assaultive; that he has since undertaken drastic changes at great financial and career costs; that he has behaved courteously and sensitively in his response, including apologies and contrition; and that he appears to have conquered these demons.”
The judgement said public interest in open disclosure outweighed Botherway’s personal circumstances, adding: “We understand his anxiety about publication and suggest he might re-engage with his therapist for support over the next month.”
The judgement concluded by outlining why Botherway was being censured.
“Mr Botherway, you have admitted misconduct, namely harassment of your female employees, by being reckless and thereby exposing them to unwanted viewing of pornography you were watching in your office.
“The misconduct is aggravated by continuing for a long period of time, and by the fact you had no processes available for your staff to raise their complaints. Accordingly, you are censured.”
