Summary A drunken male barrister approached a seated female assistant clerk whom he did not know at a dinner at a barristers’ clerks conference, lightly pushed her head downwards towards the table and away from his person and said to her in her colleagues’ presence ‘suck my dick’, moments after greeting another barrister on the clerk’s floor, his friend, at the table by sticking his middle finger out, grabbing the other barrister’s head and pulling it to and from his crotch.
In the case, Council of the New South Wales Bar Association v EFA [2021] NSWCA 339, the Bar Council did not seek to interfere with the barrister’s entitlement to practise, but sought a finding of professional misconduct at common law, other statutory species of professional misconduct, a behaviour management course, and a fine of $15,000 – $25,000, none of which the Tribunal granted, instead reprimanding the barrister for unsatisfactory professional conduct and ordering him to pay the costs of the prosecution.
The Bar Council appealed, contending that the Tribunal erred in not finding professional misconduct, and in imposing a penalty which was too lenient. The Court of Appeal (Bathurst CJ; Leeming JA; Simpson AJA) unanimously dismissed the appeal and ordered the Bar Council to pay the barrister’s costs.
I think the case establishes and/or reaffirms the following:
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- When the Court is exercising its inherent jurisdiction, the enquiry is whether the practitioner is a fit and proper person to remain on the roll, and accordingly whether professional brethren of good repute and competency would regard the conduct in question as disgraceful or dishonourable (the Allinson test) is only indirectly relevant as a useful enquiry in aid of the determination of the true test of fitness.
- In the exercise of the Supreme Courts’ inherent jurisdictions, they may make a declaration that some specific conduct amounted to professional misconduct at common law (though such a declaration is unnecessary as a stepping stone to a finding of unfitness), if there is some good reason to do so, but the declaration is one of that conduct rendering the practitioner unfit to remain on the roll by virtue of that conduct, not a declaration that professional brethren of good repute and competency would regard the conduct in question as disgraceful or dishonourable.
- Such a declaration may be made only in respect of conduct which has a real and substantial connection with professional practice.
- Although the inclusive definition of ‘professional misconduct’ in the Legal Profession Uniform Law is intended to include the concept of professional misconduct at common law within the statutory concept of professional misconduct, the test for that concept is the fitness test, which is not necessarily satisfied by making out the Allinson test. Accordingly, a disciplinary tribunal like NCAT, whose jurisdiction is constrained by the definitions in its enabling legislation — here, the LPUL — cannot find professional misconduct by application of the Allinson test.
- The class of conduct within the Allinson test is indistinguishable from the class of conduct within one of the statutory definitions of professional misconduct (conduct which, if established, would justify a finding that the practitioner was not a fit and proper person to engage in legal practice): [160].
- Conduct which justifies such a finding does not necessarily require interference with the practitioner’s entitlement to engage in legal practice because even though conduct may justify such a finding, it does not necessarily require such a finding when all the surrounding circumstances are fully explored: [164].
- Conduct which is discreditable to a barrister and brings the legal profession into disrepute, such as the barrister’s ‘appalling’, ‘poorly judged, vulgar and inappropriate’ conduct ([172]-[173]), which was ‘crass’, and ‘demeaning, humiliating and inexcusable’ ([194]) does not necessarily mean that the practitioner is not a fit and proper person to engage in legal practice: [169]-[173].
- The Supreme Courts’ inherent jurisdictions to deal with their officers is entirely protective of the community: [178]. So are statutory disciplinary tribunals’ jurisdictions entirely protective: [179].
- In the absence of other detriments to the practitioner occasioned by conduct such as the barrister’s, such conduct warrants something more than a reprimand, namely a substantial fine.
- But other detriments including extra-curial punishment, loss of reputation, and the costs and anxiety of protracted legal processes may mean that nothing more than a reprimand is necessary.
The barrister’s conduct was appalling, and the outcome seems at first glance to be lenient. But the whole episode occasioned a mental illness in the barrister, who lost his marriage, lost some of his reputation despite pseudonym orders, and had suffered:
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- castigation in the media;
- significant financial detriment (a professional indemnity insurance premium increase of more than $60,000 per annum, and liability for his own costs and the costs of the Commissioner in the first instance proceedings); and
- the anxiety of four years of the glacial, grinding disciplinary process.
Quite what ‘entirely protective’ of the community means as a description of the disciplinary jurisdiction over professionals is, I find, perpetually elusive, especially since within the concept of protection of the community is said to be a need to protect the reputation of the legal system. But I think it does mean this, inter alia: that, especially where there is no real risk of repetition of the conduct by the professional, a decision maker must look at all that has befallen the practitioner as a result of their misconduct, including the costs of the disciplinary process, and ask whether anything more than a declaration of wrongdoing and perhaps a caution, or in more serious cases a reprimand, is needed in order that an informed patron at the front bar of a pub would be satisfied that the practitioner has suffered enough. Costs are the real driver in nearly every disciplinary prosecution I have been involved in, not the fine or other penalty which often pales in comparison with the costs (though unlike Victorian barristers’ insurance cover from the LPLC, this NSW barrister’s defence costs were covered by his professional indemnity insurance policy). This case appropriately recognises all this, I think.
There is a whole other aspect of the decision about when anonymisation of practitioners’ identities is warranted, which I will not deal with in this post, except to note the following. The NSW legislation, the relevant provisions of which are outside of the Uniform Law, and so may be different from the Victorian law, required that notwithstanding the making of an anonymisation order in respect of the barrister and the other protagonists in the dinner’s drunken events, the details of the conduct must be recorded against the practitioner’s name in the disciplinary register. But it is not easy to search the NSW register so as to ascertain the identity of this barrister.
The detail Four and a half years ago now, on 21 July 2017, a few months before the New York Times article about Harvey Weinstein which launched the Me Too movement, a married male barrister attended a dinner which was part of a conference of barristers’ clerks. Drunk, he approached a friend’s table and ‘greeted [him] in a fashion that the Tribunal interpreted as “a ritualised greeting which, in part, parodied oral sex”,’ as follows: he ‘stuck his middle finger of his right hand up and towards [his friend], [and] pulled his friend’s head backwards and forwards towards his … crotch’. (If you ask me, this is the weirdest aspect of the case. Must be a Sydney thing …)
The assistant clerk to his friend’s floor, whom the barrister did not know, was also at the table. The barrister went and ‘stood behind her, and placed his left hand on the back of her head.’
The assistant clerk’s evidence was that the barrister had taken hold of her head, pulled her head to and from from his crotch, and said to her ‘suck my dick’, until she pulled away after a few seconds, whereupon she said ‘what the fuck?’ and the barrister said something like ‘Oh, don’t report me to the Bar Association’.
The events were captured on CCTV from several angles, but there was no audio. The video did not bear out the assistant clerk’s version of events, or various particulars of the conduct alleged by the Bar Council which were not included in her version of events. She was regarded as truthful, but unreliable. The Tribunal found, and the Court of Appeal said that the video showed, that the barrister lightly pushed her head towards the table she was sitting at, away from him, without putting his other hand near his crotch, said ‘suck my dick’, and she moved back to her original position and did not say anything to the barrister. How the Bar Council managed to misconstrue the video so badly is left unexplained.
The assistant clerk immediately told the clerk for the floor what had happened. She said that the assistant clerk was visibly distressed, her hands trembling.
Ultimatlely, following or perhaps during a glacial, convoluted, apparently incompetent and rather chaotic sounding disciplinary process, the barrister developed major depressive disorder, experienced suicidal ideation, went to a detoxification and health retreat, was divorced by his wife as a result of the shame he had brought on the family, and was left with limited contact with his children. Professional referees said that the barrister’s conduct was out of character.
The clerks and others both made written statements within days. A director of the assistant clerk’s floor of chambers gave the statements to the Executive Director of the NSW Bar on 25 July 2017. Why they didn’t make a complaint to the Legal Services Commissioner is unexplained. The Bar’s man forwarded them to the police ‘in what he considered to be compliance with s 465 of the Uniform Law.’ There was no evidence that anything eventuated from that referral.
On 3 August 2017, the day after he had been advised that the Bar Council was considering his conduct, the barrister apologised in writing to the assistant clerk, without actually admitting her version of events, on the basis that he had no recollection of them. The apology has the hallmarks of being settled by lawyers. I cannot help wondering whether a proper apology — I’m told this is what I did; I cannot believe my own stupidity in behaving so appallingly; please let me know what I can possibly do to make amends; I understand the effect my disgraceful conduct must have had on you; I am truly sorry and will feel this guilt until the day I die; I have given up the claret; I stand ready to take whatever consequences life and the legal process deal me — might have resulted in a different and better set of sequelae.
More than a month later, the Bar Council made a complaint about the barrister to the NSW Legal Services Commissioner, who referred the complaint back to the Council for investigation. The Court observed at [29] that this was presumably pursuant to the Commissioner’s delegation power (s. 406, LPUL), but perhaps the Bar Council was appointed to investigate under s. 282(2), and the power to determine the complaint was delegated. It is odd that the Bar Council was at once the complainant, the investigator, the decision maker, and the prosecutor.
The complaint was that the barrister had made ‘a sexually inappropriate advance involving physical contact’. Presumably what they meant was an inappropriate sexual advance, as NCAT, VCAT’s NSW sister tribunal, observed.
The Court also recorded at [29] that the next day NCAT notified the Commissioner of the complaint, but this is probably an error; what likely happened is that the Bar Council made the complaint to the Commissioner on that day, 8 September 2017.
The Bar Council did not resolve to investigate the complaint until 21 November 2021, even though it was the complainant. A response to the complaint was not made by the barrister until nearly three and a half months later. About six weeks later, the Bar Council tentatively decided to bring a disciplinary prosecution. Nearly two months later, the barrister provided a response to this tentative decision. Nearly two more months later again, the Bar Council decided to investigate further before finalising its decision.
Two weeks later, it withdrew its complaint and made a new one, namely that the barrister ‘made sexually inappropriate advances, including physical contact and words spoken, to an assistant clerk [H] and to another in her presence,’ particulars of which were given. Again the Commissioner referred it back to the Bar Council, but it did not decide to investigate its own complaint for nearly a further fortnight, nearly two years after the dinner, on 12 September 2018.
In December 2018, the Bar Council again tentatively decided to prosecute, but provided a further opportunity for the barrister to make submissions. The submissions did not move the Bar Council, which decided to prosecute four months later, on 6 June 2019. But for reasons unexplained, it did not get around to prosecuting for another six months.
The Bar Council alleged (and the barrister admitted) that his conduct towards the assistant clerk was ‘sexually inappropriate conduct’ ‘in that’ he made ‘sexually inappropriate advances’. The prosecution alleged that the barrister’s conduct was conduct in connection with the practice of law, and that it was properly characterised as one or more of three species of professional misconduct, or was unsatisfactory professional conduct (which can only be established in respect of conduct in connection with legal practice). The three species were:
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- breach of the conduct rules which say that barristers must not engage in conduct which is discreditable to a barrister or that barristers must not bring the legal profession into disrepute (s. 298(b));
- conduct in connection with the practice of law or otherwise that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice (s. 297(1)(b)) (even though they did not seek any orders which would interfere with his right to practise, and the authorities had not cancelled his practising certificate in the years between the dinner and the disciplinary prosecution’s determination);
- misconduct at common law, which the Tribunal was said to be free to hand out statutory punishment in respect of, by implication, given the inclusive definition of ‘professional misconduct’ in s. 297.
The Tribunal found that the barrister’s conduct was not a sexual advance. Given that is what the barrister was charged with, it is unclear why that was not the end of the case. It characterised the conduct as unsatisfactory professional conduct, not professional misconduct. It found that the conduct did not have the connection with legal practice required by A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253 to establish professional misconduct at common law, and so declined to decide the barrister’s contention that the Tribunal did not have jurisdiction to hear a charge of professional misconduct at common law.
Since the conduct did not justify a finding that the barrister was not fit and proper to engage in legal practice, all that was left was the breach of the rules which it found established, but better characterised as unsatisfactory professional conduct than professional misconduct. In so finding, the Tribunal rejected an argument that the rules in question, which appear under the heading ‘Advocacy’ only applied to conduct in the course of legal practice, a finding which was not in issue on the appeal.
The Tribunal found that the barrister was truly repentant and contrite, insightful, and that there was no risk of repetition of the conduct, indeed that it was confident that there would be no recurrence of it. NCAT reprimanded the barrister and ordered him to pay the costs of the disciplinary prosecution, declining the Bar Council’s invitation to order a fine and to require the barrister to engage in a course of sexual behaviour counselling.
The Bar Council appealed against the refusal to find professional misconduct, and against the penalty. It said the Tribunal applied the wrong test for professional misconduct at common law, erred in concluding that the conduct was not in connection with the practice of law, and erred in concluding that the conduct was not conduct which justified a finding that the barrister was not fit and proper to engage in legal practice.
The Court identified Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 as the source of the test familiar to those who practise in professional discipline:
“‘If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency’, then it is open to the General Medical Council to say that he has been guilty of ‘infamous conduct in a professional respect’.”
(The words ‘then it is open to’ are almost always forgotten when versions of this test are propounded, but it seems to me that the test recognised that not all conduct which was disgraceful and dishonourable in the relevant sense would necessarily be characterised as infamous conduct in a professional respect. So, not only does only some professional misconduct at common law justify striking off, but only some relevantly disgraceful or dishonourable conduct will constitute professional conduct at common law.)
The Court observed that the inherent jurisdiction of the Supreme Courts to strike off practitioners is the flipside of its inherent jurisdiction to admit lawyers as their officers. It looked, appropriately, principally to the High Court cases. And it found that the High Court cases about the exercise of the inherent jurisdiction, focused on the question of fitness to remain on the roll, an enquiry which was separate from any application of the Allinson ‘disgraceful and dishonourable’ test. Consideration of that test might be a useful way of approaching the question of fitness, but it is not determinative. The Court concluded that:
‘156 There is, in NSW, no category of professional misconduct constituted by conduct that would reasonably be regarded (by professional peers) as “disgraceful or dishonourable”.
157 That is not to say that the Allinson formulation is irrelevant; as can be seen from the cases discussed above, it has been treated as a useful test in the determination of the fitness of a legal practitioner to remain on the roll. It does not, however, as the Council would have it, create or constitute a category of professional misconduct independent of, and different from, that class of conduct contemplated as rendering the legal practitioner “not a fit and proper person” to remain on the roll of legal practitioners.
158 There is also this to be considered: the Allinson formulation is directed solely to the conduct under consideration. As the judgment of Kitto J in Ziems demonstrates, the issue of fitness encompasses more than mere conduct. The “fit and proper person” test is directed to character, which may be determined by conduct alone, but which may also take into account other circumstances.
159 One of the statutory definitions (s 297(1)(b) of the Uniform Law) of “professional misconduct” is “conduct … that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice”.
160 “Professional misconduct” determined against the “critical criterion” of “a fit and proper person” is indistinguishable from “professional misconduct” as defined in s 297(1)(b) of the Uniform Law. There was therefore nothing to be achieved by the Tribunal approaching its determination on the basis that professional misconduct at common law is something different from professional misconduct as defined in s 297(1)(b).’
In doing so, it departed from its previous decision in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284, which asserted that the test for professional misconduct at common law was that in Allinson, and that it could be established by reference to conduct unrelated to legal practice, and by conduct in connection with legal practice but lacking a real and substantial such connection. I criticised Cummins in this blog post in 2010, and thereafter watched with dismay as its heresy gained more and more adherents. And now the NSW Court of Appeal has corrected itself, for precisely the reasons I posited, namely that it was inconsistent with the High Court’s decision in Re A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253; [2005] HCA 1.
The Court provided useful explanation of s. 297(1)(b) of the Uniform Law, which provides:
‘For the purposes of this Law, professional misconduct includes conduct of a lawyer 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 lawyer is not a fit and proper person to engage in legal practice.’
The Court explained why the Tribunal did not err in finding that the barrister’s conduct did not constitute this species of professional misconduct. First, the Court said:
“160 Professional misconduct” determined against the “critical criterion” of “a fit and proper person” is indistinguishable from “professional misconduct” as defined in s 297(1)(b) of the Uniform Law. There was therefore nothing to be achieved by the Tribunal approaching its determination on the basis that professional misconduct at common law is something different from professional misconduct as defined in s 297(1)(b).’
Since the Court seemed clearly to endorse the proposition that professional misconduct at common law must comprise conduct with a real and substantial connection to professional practice, and since s. 297 clearly applies to conduct otherwise than in connection with the practice of law, and since the Court found that the Tribunal should have accepted the barrister’s admission that his attendance at the dinner was in connection with the practice of law, this statement must be understood as being made in the context of the facts of this case. Plainly, the true test of professional misconduct at common law is not indistinguishable from s. 297’s test, because conduct unconnected with legal practice is within s. 297 but without the common law concept.
Then the Court said:
‘163 … The Council pointed out, correctly, that what it needed to prove to establish professional misconduct under s 297(1)(b) was that the respondent’s conduct (as found) would justify a finding that he was not a fit and proper person to engage in legal practice. It is not necessary that the Council establish that the respondent was, in fact, not a fit and proper person.
164 We accept that, in rejecting the Council’s contention that the respondent’s conduct constituted professional misconduct within the meaning of s 297(1)(b), on the basis that it was not established that he was not a fit and proper person, the Tribunal applied a more rigorous test than is called for by the provision. Conduct that would justify a finding of unfitness is not necessarily conduct that must result in such a finding: there is a range of conduct that would justify, but not necessarily result in, such a finding; there is a range of conduct with respect to which reasonable minds might differ on whether it did, in fact, demonstrate unfitness. Section 297(1)(b) is concerned with the capacity of the conduct to constitute unfitness. We accept that the reasoning of the Tribunal was, in this respect, flawed. That does not mean that the ground must be upheld. Flawed reasoning does not necessarily mean that the conclusion reached is incorrect; a correct conclusion may be drawn notwithstanding flaws in the reasoning process.
165 By ground 5 the Council similarly complains of error in the failure of the Tribunal to find that the respondent’s conduct did in fact constitute professional misconduct within the meaning of s 297(1)(b). This ground also relied on what the Council contends to have been a flawed reasoning process.
166 The Council’s argument was, in essence, that the Tribunal’s failure to find that the respondent’s conduct constituted professional misconduct within the meaning of s 297(1)(b)was inconsistent with three of its factual findings, namely:
- that the respondent had engaged in inappropriate sexual conduct with A;
- that the dinner at which the conduct took place was a function connected with the practice of law; and
- that the respondent’s conduct was conduct that was discreditable to a barrister and was likely to bring the legal profession into disrepute.
167 Put another way, the Council’s argument was that the only correct conclusion for the Tribunal to reach, on the basis of these three findings of fact, was that the respondent’s conduct justified a finding that he was not a fit and proper person to engage in legal practice.
168 We do not agree.
169 There is something of a paradox in s 297(1)(b). On a literal interpretation the paragraph focuses on the objective circumstances of the conduct found (“conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law”). Yet, as the majority judgments in Ziems, (particularly that of Kitto J), show, a finding of unfitness involves more than an objective analysis of the impugned conduct, absent other relevant (often extenuating) circumstances. The question of fitness to engage in legal practice focuses not only on the objective circumstances of the conduct in question but also on the personal qualities of the lawyer in question, and other circumstances that bear upon the conduct. Unfitness is ultimately a finding about character, although conduct plays an important role in the evaluation of character.
170 As noted earlier in these reasons, the issue in Ziems was whether a conviction for manslaughter (by driving whilst intoxicated) was of itself sufficient to establish unfitness. By majority, the High Court held that it was not. In the passage already quoted, Kitto J drew a distinction between conduct which, of itself, demonstrated unfitness and conduct that shows “a defect of character” demonstrating unfitness.
171 To justify a finding of unfitness the conduct in question must be seen in context. But, in the two-stage process by which disciplinary proceedings are ordinarily conducted in the Tribunal, much of that which properly informs a holistic assessment of the character of the lawyer concerned, and therefore his or her fitness to engage in legal practice, will not be known until Stage 2 – by which time the conduct has been characterised as unsatisfactory professional conduct or professional misconduct. It does not seem right to characterise conduct as professional misconduct merely because, objectively speaking, it would justify a finding of unfitness if, after consideration of other relevant factors, such a finding would not be justified or warranted. It is only necessary to look at the facts in Ziems and A Solicitor to see that unfitness is not measured by the objective circumstances of the conduct alone.
172 A finding that the impugned conduct would justify a finding of unfitness needs to be made in the context of all available evidence at the time of Stage 1 of the proceeding. It may be, in some cases, that the Commissioner or the relevant professional association has available to it evidence of other instances of conduct similar to, or equally discreditable as, that under consideration; clearly that would be a relevant factor in the determination of whether the conduct in question (not being isolated) was such as to justify a finding of unfitness. That is not this case: so far as the evidence (at the Stage 1 hearing) goes, this was indeed an isolated instance of appalling conduct on the part of the respondent. (At this point, the evidence given at the Stage 2 hearing that adds weight to that inference must be ignored).
173 “Poorly judged, vulgar, and inappropriate” as the Tribunal correctly found the conduct to be, we are not persuaded that the Tribunal was wrong to decline to characterise it as conduct that would (of itself) justify a finding of unfitness. There was nothing to add to that conduct to warrant a finding of unfitness.’
