(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