Update, 10 June 2008: The Bar’s Ethics Committee dropped the investigation without giving reasons.
Update, 23 November: The press just can’t seem to believe that anyone would be called Issac Brott, inevitably reverting to the more plausible Isaac Brott. And nor do they seem to be reading this blog. Here’s The Australian again claiming the Bar is ‘threatening to end the legal career’ of Peter Faris. I am not aware of any such threat.
Update, 13 November: I suggested below that if there is to be a debate it should be about the merits of the conduct rule they’re wondering if Mr Faris might have broken. It is a close relation of contempt by scandalising the judiciary. Oyiela Litaba’s recent article in the Deakin Law Review may be of interest in that regard: ‘Does the “Offence” of Contempt by Scandalising the Court have a Valid Place in the Law of Modern Day Australia?’ [2003] Deakin LRev 6. I should reiterate that I express no opinion on the question, and I am not sure what my opinion would be if I thought about it properly.
Original post: The Ethics Committee of the Victorian Bar has written to fellow Melbourne law blogger Peter Faris QC who has resigned as a consequence and joined the ranks of solicitors. When colourful Melbourne silk Peter Hayes died this year in circumstances said to have been associated with drugs, Mr Faris made comments on his blog about the prevalence of drugs at the Bar, but he did not name any names. That original post, and this one are still up on his blog. I am not sure whether it is the blog post, or other comments Mr Faris made, which got up the nose of the Ethics Committee. The Bar insisted on knowing the names, and when none were forthcoming, it wrote to advise him it was considering writing to the Legal Services Commissioner.
Two things interest me about the whole affair, the substance of which I do not propose to comment on. First, I think the free speech discussion could get a bit more sophisticated. That would involve a focus on the rule which prohibits conduct which would bring the profession into disrepute. Seems to me a debate about whether that is a good rule would be a much more fruitful one than anything presently being tossed around by commentators. Secondly, there is a misunderstanding about what role the Ethics Committee is playing. Being the pedant that I am, I point it out for the benefit of the newspapers.Commentators like Mr Faris’s friend Mirko Bagaric, a law academic, have written rants about free speech. Mr Faris signed up to membership of the Bar, which is not established by statute and membership of which is voluntary. Rule 4(c) of our practice rules is a restraint on freedom of speech. It says:
‘A barrister must not engage in conduct which is –
…
(c) likely to diminish public confidence in the legal profession or in the administration
of justice or otherwise bring the legal profession into disrepute.’
Few statements could more clearly be likely to bring barristers into disrepute than that many of them are off their heads. Lawyers are in a special category when it comes to drugs. Lawyers have a unique professional obligation to uphold and respect the law. They deal with the dishonest, the criminal, the manipulative and the mad, yet they have obligations to the administration of justice which requires them to maintain a difficult independence. The public are entitled to believe that a beak whose criminal client knows he is a drug user will be impaired in his observation of his duty to the administration of justice where that conflicts with the duty to the client. Blackmail and self-censorship would hang heavy in the air.
Criticism might be directed at the existence of the rule, or its breadth, or the difficulty of knowing what it means, but if the rule extends to the kind of conduct Mr Faris has engaged in, then it should be investigated. Generally speaking, the Victorian Bar is very good at writing rules which are specific and detailed, and then good at producing commentaries on them which assist in their everyday interpretation. Given the existence of those rules, they should be enforced. As I have said before, rules which are not enforced are platitudes. In summary, it seems to me the discussion should be about whether the rule is a good one, not whether by enforcing the rule in a case of apparently obvious application the Ethics Committee is acting as an anti-free speech bully with its head in the sand.
I turn to the interesting question of what power the Bar’s Ethics Committee is exercising. Until December 2005, the Ethics Committee was a co-regulator with the Law Institute of Victoria and the Legal Ombudsman. Complaints could be made to it, and it was required to investigate them, and it could investigate a barrister of its own motion. At the conclusion of the investigation, it decided whether to lay a charge, and if it did, it acted as prosecutor. It is no longer a decision maker in relation to complaints against barristers, which must now be made initially to the Legal Services Commissioner. It continues to investigate disciplinary complaints, but only when the Legal Services Commissioner refers such a complaint to it for investigation. In the last financial year, the Commissioner received 82 disciplinary complaints against barristers and referred only 15 of them to the Ethics Committee, though it may well be the case that all but these 15 that had any substance were duds. When such referrals take place, there is no delegation, and the Committee only investigates and makes a recommendation to the Commissioner as to the decision the Commissioner should come to: s. 4.4.9, Legal Profession Act, 2004.
The media reports suggest that the Legal Services Commissioner has not referred any investigation, and that the Bar is in fact considering referring the issue to the Commissioner. Anyone can make a complaint about a lawyer, and it may be that the Bar was contemplating lodging a disciplinary complaint against one of its members. Unlikely, I would have thought. It may also be that it was contemplating writing to the Commissioner and suggesting that she commence an investigation on her own initiative under s. 4.4.8 of the Legal Profession Act, 2004. But this report suggests that the Bar considers that it has a power to compel information from its members. Perhaps the power comes from cl. 15.1.2 of the Bar’s Constitution which provides that:
‘The ethics committee appointed by the Bar Council shall have full authority to act on behalf of the Victorian Bar for the purposes of Chapter 4 [headed ‘Complaints and Discipline’] of the [Legal Profession Act, 2004] and for such purposes as the Bar Council may from time determine.’
Anyway, I doubt that Chris Merritt is right when he says that the Bar is using ‘power that derives from State legislation’ to bully a barrister, highlighting a need for even greater self-regulation. The AAP article published in The Age which suggests that the Bar is trying to end Mr Faris’s legal career is just ignorant hyperbole. As I noted in the last post, there are many investigations by the Legal Services Commissioner but few prosecutions. A comparison of all the things Victorian lawyers have been struck off for with Mr Faris’s comments suggest that it is inconceivable that VCAT’s Legal Practice List would strike Mr Faris off the roll of practitioners for the comments he made.
Andrew Fraser, the solicitor who was busted with a $1,000 a day cocaine habit and jailed got out of jail recently and has published a memoir, Court in the Middle. Mr Faris suggests the police may have tapes from when they tapped Fraser’s phone in which lawyers who used coke were named. I will keep you posted.
i thought i was bigger than life regards issac brott