Feliks Jerzy Kwiatkowski told disciplinary tribunal that women being more emotional is ‘biological fact’
A veteran barrister has been fined for professional misconduct after calling his opponent’s work that of a “hysterical woman”.
Feliks Jerzy Kwiatkowski did not deny using those words in a public exchange with a female barrister, nor that he had complained about changes in the legal profession since more women joined.
But he maintained it was “biological fact” that women are more emotional than men.
Kwiatkowski, who was called to the bar in 1977, was reprimanded by the Bar Tribunals and Adjudication Service and fined £500.
The incident took place at Worthing County Court in November 2019. Kwiatkowski was making an application on behalf of his client, while his opposite number, a barrister anonymised as ‘Person X’, was serving a witness statement opposing that application.
According to a note Person X took on the day, the two barristers were chatting about the case when Kwiatkowski described the witness statement — drafted by a female legal executive — as that of a “hysterical woman”.
When challenged, Person X reported, Kwiatkowski said:
“I have been practising since before this century. When more women joined the profession, the ground shifted. You do get stupid and unreasonable men in the profession, but the ground shifted — the number of incidents of overegging the pudding and just going overboard in a routine situation multiplied.”
Told this was “sexist and inappropriate”, Kwiatkowski said that he was simply stating fact and tried to regale Person X with tales of women being unreasonable.
Person X told the tribunal that while she had heard barristers making inappropriate comments about women before, “she had never encountered someone who explained at such length and so calmly why they thought women were ill-suited to the legal profession”.
The tribunal also heard from a witness who overheard some of the conversation, including a reference to female lawyers being “intemperate”.
Kwiatkowski admitted making “several short, quiet and negative remarks about [the female legal executive’s] qualities as a professional, only one of which included the assertion that she was ‘hysterical'”. He also remembered saying “words to the effect that there had been changes since more women had come into the profession”.
In his formal witness statement to the disciplinary tribunal, Kwiatkowski wrote:
“Whilst it is a generalisation, of course, I do find that women tend to be more emotional than men. That is, I believe, a biological fact rather than an insult. I would like to know if the BSB refuses to accept this because, if so, I shall have to instruct a neuro-biological expert.”
He went on to offer his “sincere apologies”, saying the incident “has brought home to me the extent to which sensibilities have changed since I was called to the Bar and this is most certainly a point that I shall bear in mind in future”.
The disciplinary panel found that Kwiatkowski had used the phrase “hysterical woman”; added that this was “just fact” or words to that effect; and delivered the words quoted in Person X’s note about women “overegging the pudding”, or words to that effect.
The tribunal also found that he did describe women as “intemperate”.
The panel, chaired by Jonathan Glasson QC, found that this conduct was “undoubtedly” a breach of bar rules. “The public”, the tribunal said, “rightly expects the profession to promote equality and diversity and for its members to avoid language which is sexist and discriminatory”.
On whether the breach was serious enough to constitute professional misconduct, the tribunal noted that Kwiatkowski “has remained firmly of the view that what he said was entirely justified”. It decided that the test for misconduct — that the breach of rules was “seriously reprehensible” — was satisfied.
The tribunal brushed aside a free speech argument, which included a reference to the recent case of Jon Holbrook, as “miss[ing] the central point”.
The sanction was a reprimand and what the panel described as a “low-level fine” of £500. This was revised down from £750 after hearing submissions “as to the Respondent’s means”. For the same reason, the costs bill was heavily discounted, also to £500.
According to a direct access profile, Sussex-based Kwiatkowski has been at the bar for 45 years, practising exclusively civil law since about 1998.
In a statement issued through his barrister, Kwiatkowski said: “In this country, the law of the land is that the expression of an opinion, however unpopular, irritating, or perhaps even repugnant, is permissible subject to a risk of civil disorder arising from such expression. It seems to me that there are two unusual features of the decision of the tribunal. Firstly, to say that someone is a hysterical man or hysterical woman may offend certain sensibilities, but in context my client was criticising an attack on his female instructing solicitor. It was submitted and will be submitted on appeal that the phrase ‘hysterical woman’ is not in itself ‘professional misconduct’. That has to be something that reaches a threshold of seriousness.”
The statement continued:
“The second of the two charges directly struck at the expression of personal opinion. It criticised unreasonable men and unreasonable women. That opinion may be repugnant to some, but the remedy for this is not to shut it down, not to punish the speaker, as has happened, but to engage in a mature debate. The recognition of an alternative opinion is the very essence of a free society. Enforced agreement with an opinion is the very essence of an unfree society. We wonder if those who mean well have lost sight of this essential principle. The tribunal was told that Mr Kwiatkowski is not a misogynist or sexist. And he is not.”
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