Issues:
• Non-disclosure of misconduct prior to admission.
• Truthfulness and candour of a legal practitioner.
• Interference with the administration of justice.
• Conduct outside practice.
Desired Outcomes:
• To develop a set of guidelines as to the qualities expected of a legal practitioner regarding their conduct before and during their practising as a solicitor or barrister.
1. Good fame and character
Good fame and character is both a preadmission requirement and an ongoing requirement. There are three main areas under which suitability issues can be categorised, dishonesty, political activity, personal moral standards. Some examples include:
Section 60 of the LPA 2004 in Part 2.4, Division 6, sets out grounds on which a local practising certificate may be suspended or cancelled, which include that the holder is no longer a fit and proper person to hold the certificate. Under s 61 of the LPA 2004, where a Council is contemplating amending, suspending or cancelling a local practising certificate (amending includes imposing conditions under s 50), Council must give notice to the practitioner and consider written representations made before taking the proposed action. Division 6 which deals with ‘standard’ amendment suspension or cancellation of local practising certificates expressly does not apply to matters referred to in Division 7: s 59 show cause events.
(a) Pre-admission non-disclosures – prior misconduct
Re Davis (1947) 75 CLR 409
Struck off for not disclosing a conviction only to have the omission discovered post-admission may result in that person being struck from the rolls
New South Wales Bar Association v Jetnikoff (Court of Appeal, 18.12.1993, unreported)
Was struck off for providing on two separate occasions character references he had forged (notwithstanding the referees would have signed such references).
More importantly he has deliberately and knowingly placed before the Court false evidence intending the Court to act upon it.
New South Wales Bar Association v Moore (Court of Appeal, 2.11.1993, unreported)
Moore a barrister was struck from the role for paying a bribe to a police prosecutor in 1983 while practising as a solicitor. He failed to report this conduct to any authority until 1992 and did not disclose it when applying for admission as a barrister in 1989. Claim of duress failed.
New South Wales Bar Association v Thomas (No 2) [1989] 18 NSWLR 193
While on the Roll of Barristers although not actively practising T was found to have shown a lack of candour to the Court and a conscious deception of Crown Counsel as to how certain evidence in a criminal matter had been obtained. Not Struck off - Honesty during investigation regardless of consequences.
It is more likely, in cases of professional misconduct, that the Court will withhold disbarment or suspension where the practitioner has admitted guilt” and this is because “a barrister is more likely to be accepted by Judges and fellow practitioners if, despite lapses, he or she acknowledges frankly a recognition of the errors that led to them.”
Prothonotary v Del Castillo (Court of Appeal, Unreported)
The question is present unfitness, not fitness as at the time of the crime.
Even if the prosecution of an applicant for a criminal offence did not result in a conviction, the circumstances that resulted in the charge or even the circumstances surrounding the prosecution may reflect on the character of an applicant. The New South Wales Court of Appeal did not set out principles for when an applicant for admission should disclose any charge of which the applicant had been acquitted, but did observe that it was the prudent and desirable course for an applicant for admission to disclose at least the fact of the charge and the acquittal and to offer to supply any further details required by the admitting body
(b) Honesty/truthfulness
Re B[acon] (1981) 2 NSWLR 372
Political activity will rarely present an issue by itself when it comes to admission (unlike in the US and Canada). However, it can be an element. For instance, attempting to use the courts for political ends, to the point of notoriety. In this case continual lies about source of bail monies constituted grounds for non admission.
Wentworth v New South Wales Bar Association (Court of Appeal, 14.02.1994, unreported)
Having a habit of taking fruitless legal action may also prevent admission – could not be relied on to be truthful in court
Coe v NSW Bar Association [2000] NSWCA 13
The general penalty for swearing a false affidavit would be striking off the roll
2. Interference with administration of justice
(a) Bribery
New South Wales Bar Association v Moore (Court of Appeal, 2.01.1993, unreported)
Moore a barrister was struck from the role for paying a bribe to a police prosecutor in 1983 while practising as a solicitor. He failed to report this conduct to any authority until 1992 and did not disclose it when applying for admission as a barrister in 1989. Claim of duress failed
Prothonotary of the Supreme Court of New South Wales v Pangallo (1993) 67 A Crim R
You may have acted just as improperly as committing an illegal act yourself if you assist a client or another party to do so. Pangallo didn’t actually bribe he assisted
(b) Suborning witness
Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563
The solicitor going to the home of a witness for the opposing party and attempting to intimidate them into changing their testimony
(c) Conduct in court
Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201
Insulting and insolent behaviour towards the bench may constitute contempt of court and lead to disciplinary action. An advocate must not conduct himself or herself in court in a manner calculated to interfere with the proper administration of justice
In this case 12 complaints of insolence to bench and other practitioners. Conduct was designed to intimidate rather that persuade the court. Not struch off importance of nil dishonesty.
3. Conduct outside practice
Lawyers can in addition to behaviour which forms part of their professional work, face difficulties from their conduct outside of their professional practice. In most situations, a lack of candour and honesty on the part of the practitioner can cause as many problems, if not more, than the actual behaviour itself. This is similar to the situation in admission, where it’s normally the lack of candour and disclosure that prevents the admission of a practitioner.
Legal Profession Act 2004, s 497 (1)(b) Professional Misconduct includes:
(a)…
(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
Coe v NSW Bar Association [2000]
Personal dishonesty (such as lying in an affidavit in a case to which the practitioner is party – struck off). But this may not include dishonesty relating to errors, such as when a clerical errors. However, it could still result in a minor punishment if it involved dishonesty to fellow legal practitioners. Re Law Society of the ACT and Chamberlain (1993)
Barristers’ Board v Pratt [2002],
Child sex offences can result in disbarring.
The Council of the Law Society of NSW v A Solicitor [2002]
If the nature of the trust, and the circumstances of the breach (i.e. Counts of aggravated indecent assault on a person under 16) were so remote from anything to do with professional practice that the characterisation of the appellant’s personal misconduct as professional misconduct was erroneous
Re H [1981] 3 All ER 205*
Immoral conduct in toilet not sufficiently connected with conduct of practice.
Not one of the matters listed under s498.
Misconduct in a person’s private affairs may be relevant to his or her fitness to practise a profession. if the conduct complained of was equally reprehensible in anyone, as for example conduct constituting some traffic offence, it would not amount to disgraceful conduct in a professional respect. But if that conduct was, in the case of a professional person, ‘so much more reprehensible as to be defined as disgraceful’, it could amount to disgraceful conduct in a professional respect in the sense that it brought disgrace on the profession which the person practised. For example a Veterinarian farm being so disgraceful as to cause harm to his animals Marten v Royal College of Veterinary Surgeons’ Disciplinary Committee [1966] 1 QB 1
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279
Typically, the commission of a serious felony will result in an automatic striking off, but there may be circumstances where this is not the case (such as involuntary manslaughter). In this case his practicing certificate was suspended for the time he spent in gaol.
New South Wales Bar Association v Harrison LPDR 6 of 1997
Health problems with wife failed to do tax returns for 4 years. No dishonest intent. Not struck off.
Today one of the listed matters under s498
NSW Bar Association v Hamman [1999] NSWCA 404
In situations where there is a continued effort to defraud government revenue (such as through falsifying tax returns), the practitioner will be struck off
Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 (Lopes J)
Kennedy v the Council of the Incorporated Law Institute of NSW (1939)
A charge of misconduct as relating to a solicitor need not fall within any legal definition of wrong doing.
Barristers’ Board v Darveniza (2000) - Drug convictions can result in disbarring.
Mitigation Factors
As with most breaches of the law, there often mitigating circumstances. The two most common are mental illness and chemical dependency.
However, other legal defences may also be appropriate such as:
- Duress
- Self defence
- Age