NSW Ethics Cases

Ziems v Prothonotary of the Supreme Court of NSW

Facts:

Barrister attacked. Subsequently crashed into and killed a motorcyclist. Alleged that he was drunk, however, his condition may have been due to shock and concussion. Convicted of manslaughter and his name was removed from the roll.

A police sergeant who witnessed the attack was not called by the prosecution - meaning that the defence had to call him. During the coronial, the police officer acknowledge that the Barrister's behaviour could have been a result of the attack (he thought that there would have been a cerebral injury caused by the violent attack). The police sergeant's evidence at trial was not as favourable.

Held: appeal allowed. Suspended from practice during term of imprisonment.

Principles

Jurisdiction / power to disbar and suspend - The power to disbar or suspend someone is incidental to the power to admit to practice.

Ultimate question - The question is whether the person is not a fit and proper person to be permitted to practise at the Bar. It is open to look at every fact which can throw any light on that question. The question is also answered by defining the minimum standards demanded by reference to the peculiar position and functions of a barrister.

Standard - A barrister must possess more than honesty, learning and forensic ability. A barrister is in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community - requiring exceptional privileges and exceptional obligations.

Personal misconduct - The personal misconduct may be a ground for disbarring because it may show that the person guilty of it is not a fit and proper to practise as a barrister, however, the approach is different to professional misconduct (the latter has much more direct bearing on the question of a person's fitness to practise).

Crimes - Poof of an offence, whatever its nature or consequence is not sufficient to disqualify a barrister. While a conviction is not conclusive, the conviction is not irrelevant - it is prima facie evidence bearing on the ultimate issue and carries with it a degree of disgrace itself. The conviction may show a defect in character that is incompatible with privileges and obligations of a barrister. Further, the conviction may of itself carry such a stigma that it is sufficient. The classification of the offence as a felony does not assist.

Must look to the circumstances - The weight of the conviction may be seriously affected by the circumstances attending it, and it is permissible to look at the conduct of the trial. It is on the conduct of the barrister that the case must ultimately be decided. The vital question is whether the conduct has been such as to show that the barrister is unfit to remain a member of the Bar. The Court is more concerned with the facts of the particular case - the conviction is of secondary importance. The Court cannot, however, look behind the conviction.

A person may not be fit and proper person if, while otherwise of good fame and character, drives drunk and, in a grossly negligent manner, causes the death of another road user.

Here:

- There is a reasonably probable version of the episode which leaves one in serious doubt as to whether the ultimate issue can properly be found against the appellant

- There were at least two unsatisfactory features of the trial which resulted in the appellant's conviction (the narrative of relevant matters we incomplete without the evidence of the Sergeant; the trial judge misdirected the jury - suggesting that the onus was on the accused to prove insanity rather than for the prosecution to prove that the accused was drunk).

While a serious offence, it does not go to the propriety of the barrister remaining a member of the profession. It was not premeditated, it does not indicate a tendency to vice, violence or lack of probity.

Clyne v NSW Bar Association

Facts

Criminal prosecutions commenced against a solicitor to intimidate the solicitor into ceasing to act on the belief that this would facilitate the settlement of fam law property proceedings. The criminal proceedings concerned the solicitor 'unlawfully maintaining' proceedings.

There was no evidence that could sustain the charges.

The Barrister made damaging statements concerning the solicitor in his opening that were not supported by the evidence. The opening expressly outlined the purpose of the criminal prosecutions.

The Full Court of the NSW Supreme Court struck the barrister of the roll of barristers.

Decision: appeal dismissed.

Principles:

Ultimate question - whether a person is shown not to be a fit and proper person to be a member of the Bar. This is not capable of a more precise statement.

Standard - An appeal court should not interfere unless it is clear that the discretion of the Supreme Court has been wrongly exercised (i.e. there is compelling grounds)

Nature of professional rules - they can roughly be divided into two categories:

1. written rules that are conventional in character - designed primarily to regulate conduct of the members of the profession in relation to one another (i.e. forbidding advertising, rules in relation to retainers, when SC must appear with a junior. Breaches are treated seriously but would not warrant disbarment unless it was shown to be part of a deliberate and persistent system of conduct.

2. Unwritten fundamental rules - a generally accepted standard of common decency and common fairness (i.e. not to lie to a judge, deliberately misrepresent the law, make serious allegations without a reliable foundation to warrant the suggestion)

Abuse of privilege - a Barrister enjoys absolute privilege from defamation. Counsel has a duty to speak out fearlessly. It is essential that this privilege is not abused.

The privilege may be abused if damaging, irrelevant matters are introduced into a proceeding.

It is grossly abused if statements are made with ruinous consequences which cannot be substantiated or justified by the evidence.

The Barrister must know that he has and intends to adduce the evidence to support such allegation.

It is not sufficient to think that they may be able to establish the statements from cross-examination.

Purpose - disbarment is not punitive in character, it is:

- protective of the public, and

- deters like conduct.

New South Wales Bar Association v Evatt

FACTS: The barrister was knowingly a party to & actively assisted in a systematic course of action whereby 2 solicitors charged extortionate and grossly excessive sums as cost to lay clients and as counsel the barrister, knowing the fees were excessive, knew would be paid in part from the amounts so charged by the solicitors.

· Barrister advised clients to accept settlement offers that would enable the payment of the extortionate fees.

· The fees charged by the barrister were also excessive. The court would not have awarded such costs if the client had been successful in their action.

· Barrister should not actively involve themselves with the arrangement of costs between solicitor and the client.

This was an appeal by the New South Wales Bar Association from the Supreme Court, which suspended the barrister for a period of two years. The New South Wales Bar Association sought for the barrister to be disbarred. The appeal in the High Court was ultimately allowed. Knowingly sharing in the process of extortionate charges made by solicitors by then charging and being paid excessive fees out of what the solicitors took from their clients amounted to professional misconduct. The barrister preferred the solicitors greed over the clients' interests.

It was the respondents failure to understand the error of his ways that demonstrated unfitness to belong in a profession where , in practice , the client must depend upon the standard as well as the skill of the professional advisor.

Case cited Clyne re not seeing error of ways that warrants disbarment and that disbarment was a protective rather than a punitive measure.

Barrister struck off.

Kelly v London Transport Executive

Client was legally aided and suing employer for worker's comp. Solicitor used extensive LA resources to obtain multiple medical reports but only sent one medical report to D's solicitor but that report had been doctored in order to omit information that held unfavourable information that was harmful to P's case. The employer managed to disprove by leading their own medical evidence.

Eventually showed that the injury was caused by the client's own alcoholism. Court found that it was a bogus claim.

The D went to extensive financial expense of fighting this claim.

But for the LA funding, the claim wouldn't have proceeded. The LA person's solicitor is under a duty to the client and to the unassisted client to conduct the case appropriately. Otherwise the LA funded solicitor can be brought before the court and be personally liable for the costs of the other side's litigation costs.

Solicitor needs to assume the risk of losing the case. LA can't be held responsible.

In relation to doctored report - expert reports should be a product of the expert.

An expert witness should not be asked to change a report so as to favour the client or conceal prejudicial material. Lawyers must not "settle" the evidence of medical experts. Expert evidence should be seen to be the independent product of the expert. uninfluenced as to form or content by the exigencies of litigation.

Glissan, James Lindsay, Re, Legal Profession Disciplinary Tribunal, No. 13 of 1990

FACTS: Glissan QC, the barrister, was brought before the Legal Professional Disciplinary Tribunal on an allegation that he had improperly pressured his client thereby inducing the client to settle the litigation in which the barrister was briefed.

Tribunal found that there was no evidence to suggest that Mr Glissan acted in any way other than honestly and in good faith. There were very poor prospects of success but the client desired to proceed. The barrister said that he could not let the client go into the witness box and if he chose to proceed, the barrister could not act for him and the client would have to represent himself.

HELD: Despite the Tribunal accepting that the case was unwinnable, the barrister has a duty to put as strongly as he can that he should settle but should not directly or indirectly overbear his client's will.

· Tribunal held that this had in fact happened

· Barrister guilty of unsatisfactory professional conduct and received a reprimand.

It is always open to the barrister to return the brief in these circumstances.

Chamberlain v Law Society of the Australian Capital Territory

Practitioner acting in relation to his own affairs in litigation between himself and the Deputy Commissioner of Taxation and fostering a significant mistake made by the opponent - difference of $230,000.

The solicitor had the Commissioner sign Terms of Settlement to consent to the judgment of $25k as opposed to $255k and in evidence said that he did so deliberately so that there was a chance that the judgment would hold, time would elapse and the Commissioner would be estopped from recovering the $230k shortfall.

HELD:

· This amounted to inducement

· Also, the improper entry of judgment in the SC where the Commissioner's consent was brought about by a fostered mistake amounted to an abuse of process.

· Misconduct even though arose from litigation about the solicitor's own affairs and not in the process of representing a client.

On appeal from the SC of ACT. Initially imposed a penalty of suspension for 6 months.

Taking advantage of a mistake by an opponent amounts to professional misconduct. Practitioner issued a reprimand (lighter penalty) based on this being an isolated incident and evidence of his otherwise good character.

Hunter v R (1999) 105 A Crim R 223

FACTS: Co-accused represented by same barrister appealed convictions based on incompetence of the barrister leading to a miscarriage of justice.

On a charge of armed robbery, one man had no prior record and the other had an extensive criminal record.

FOUND:

· Failure to advise the accused with no record to seek independent advice because it would be in his interests to lead evidence of good character was the main ground of incompetence that the court found

o Failure to call this evidence significantly disadvantaged the person with no record and amounted to miscarriage of justice

· It would have been a conflict of interest to advise both of them on leading good character evidence as it served the interests of one and not the other. Basis for needing separate representation.

* arranging for semi-retired local solicitor to assist contrary to Bar Rule 80 (charged extra $285 for this)·

Two co-accused's addresses and summing up weren't sufficiently separated to explore different verdicts for each of the men.

Party is bound by his or her counsel and incompetence in itself isn't sufficient to find a miscarriage of justice. Needs to be flagrant incompetency. Failure to fulfil basic standards of advocacy.

Appeal allowed, conviction and sentence quashed, verdict of acquittal entered.

R v Kneebone (1999) 47 NSWLR 450

Facts: Kneebone was found guilty of aggravated sexual penetration without consent of his step daughter. The mother of the step daughter was a material witness to the rape. She was not called as a witness by the prosecution despite being both willing and available. The outcome was a new trial as a miscarriage of justice took place due to the prosecuting counsel failing to fulfil his obligations under the bar rules within rr 83, 90.

Held: A prosecutor must seek to arrive at the truth and to oblige the duties he owes to the court. By not calling a material witness whom is suggested as unreliable without testing the unreliability is a miscarriage of justice.

Notes: Prosecutors owe a duty within rule 83 to assist the court to arrive at the truth with impartiality, and to present the whole of the evidence in front of the court. They must, (rule 87) disclose all relevant evidence which could be relevant to guilt or innocence. A Prosecutor must call any witness unless they are plainly unreliable - however this could be tested via the unfavourable witness provisions within the Evidence Act s 38. The prosecutor must inform the defence counsel (rule 90) if they intend to not call a witness and the ground within rule 89, e.g unreliability.

Barrister rules - 83 - 95 - Prosecutor's duties

R v McIntyre (2000) 111 A Crim R 211

FACTS: Counsel representing criminal client. Had a number of arguments with the Judge and made rude, unnecessary comments and was generally belligerent.

ISSUE:

Interference with administration of justice and whether rudeness of barrister and accusations of bias and prejudice made toward a judge amounted to a miscarriage of justice.

HELD:

* Barrister's conduct so bad that it diverted the jury's attention from the trial.

* It doesn't follow that rudeness of counsel necessarily follows with miscarriage of justice. However, the nature and frequency of the rudeness took the jury away from their task and, any behaviour by counsel that diverts the judges or jury's attention can amount to miscarriage of justice.

Di Suvero v Bar Association

Facts: On appeal from the Tribunal.

Inappropriate conduct by the barrister in a DC criminal trial. Complaint made to the Bar Association by the sitting judge and the Crown Prosecutor.

This led to a finding of 'unprofessional conduct' against the barrister.- an appeal was lodged by the barrister against the finding of unprofessional conduct.- - he argued that the offence of 'unprofessional conduct' only covered conduct towards one's client not the courts. The barrister argued that the complaints against his conduct in court could only be dealt with under a finding of 'professional misconduct' or contempt of court charge.

-Unsatisfactory professional conduct is a category of charge, lower than a charge of professional misconduct and includes an act or omission occurring with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.

HELD: 'Unsatisfactory Professional Conduct' was an inclusive definition and could include:

- - behaviour insulting to a judge or to the Crown prosecutor, even though it involved no lack of competence or diligence.

- The abuse of privilege that he had in appearing in court using rude and insulting language. Amounts to unsatisfactory professional conduct as it is not conduct that the public would expect of a barrister in the administration of justice. Failure to maintain such a standard could be seen as incompetence.

NSW Bar Association v Cummins

Failure by barrister to file his tax returns for 38 years amounted to incompatibility with the integrity required.

· Defrauding the ATO is no different to defrauding a client

· The barrister brought the entire legal profession into disrepute

· Systematic non-compliance with legal and civic obligations

· Even though it was personal conduct it amounted to professional misconduct because barrister expected to uphold his civic duty as a representative of the administration of justice.

· The filing of tax returns was found to be closely related to the earning of professional income. The link was sufficiently close to make a finding of professional misconduct.

NSW Bar Association v Murphy

FACTS: Barrister's practicing certificate was cancelled after an act of bankruptcy.

Appealed this and his practicing certificate was returned to him because it was satisfied that the barrister's bankruptcy did not come about in a dishonest way.

NSW Bar Association appealed.

HELD: Court held that although the barrister didn't manage his taxation and financial affairs properly, nothing in his conduct precluded him from acting properly in the affairs of his clients.

Dishonesty would generally warrant permanent disbarment. But where not dishonest, the practitioner can still be unfit.

· It was the circumstances in which the bankruptcy arose was the main thing.

· Reiterated principles of disbarment being protective not punitive.

· Rejected the dishonesty test. Instead, court is to look at whether the circumstances around the bankruptcy rendered the practitioner unfit and an improper person, as a person upholding the administration of justice, to continue to hold a certificate.

· In the absence of dishonesty, the court will consider all the circumstances of the case.

· Just because not fit and proper person to hold certificate doesn't mean that they're not fit and proper to remain on the roll of lawyers.

NSW Bar Association v Bryson

FACTS: Barrister took the law into his own hands, took guns for which he didn't have a licence after receiving death threats and whilst drunk in a toilet in a pub, was sighted by the manager rearranging the guns. Manager's evidence was that he waived it around. Barrister denied this.

Matter of personal misconduct and how this might affect professional misconduct.

Taking a loaded gun into a public place was held to suggest that the barrister was not a person of good fame and character, particularly that he was drunk at the time. Of some mitigation were the death threats that he was receiving and that he otherwise had good character evidence.

Bar Association was not seeking that he be struck off.

FOUND: Barrister found guilty of professional misconduct, publicly reprimanded and fined $10k and having to undertake a further course of legal education and be supervised by another barrister.

Bryson v NSW Bar Association (LSD) [2003] NSWADTAP 29

Barrister who was found in possession of a loaded gun for which he didn't have a licence. Produced gun in the toilet whilst drunk.

Found not fit and proper person and ordered publicly reprimanded, fined and supervised by a barrister for a year.

FOUND:

• On appeal found that the Tribunal had the power to order reprimand by continuing legal education and a fine, but Section (171C(1)(f)(OLD LPA) LPUL s302 does not include the power to make an order for supervision.

• The actions of the barrister were serious, and whilst the Tribunal had the power to order further continuing education, did not have the power to make a supervision order.

• Reiterated the protective, rather than punitive, function of the ethical standards required of barristers.

The orders in section 302 are accumulate - the Tribunal may make any one or more of the orders.

While unclear - it appears that it is sufficient that the parties should be given the opportunity to make submissions on what orders should be made under s302 generally rather than the specific order contemplated.

Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320

Facts: A 42 yr old female Barrister who had a history of drug problems was convicted of possession of a trafficable amount of cocaine.

- she smuggled the cocaine in her underwear on a trip from Brazil to Sydney. she hid the cocaine on behalf of her boyfriend

- Barrister was sentenced to 6 months but only served 3 months

- she entered into rehabilitation after being found guilty. Barrister has been drug free for the last 4 years

· Mitigating factors:

o Absence of previous record

o Honesty and cooperation with authorities regarding the offence

o Not related to the practice of law

o Absence of premeditation (she took friend's drugs over the border)

o Evidence of good character

o Clear evidence of rehabilitation

Issue:

The bar Council believed the Barrister to be not fit and proper person due to her drug history. The bar council wanted to strike her off the roll as she was seen as unfit to continue being a legal practitioner.

Held:

- Court concluded that although most drug addict relapse:

- - P had been drug free for four years

- - P agreed to regular random drug tests

- - There was no benefit to the courts or the community to have P struck off.

Principles:

1.The onus is on the claimant to show that the opponent is not a fit and proper person. It is a civil onus: Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW) 236. However Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 shows the particular standard that must be applied when working out the civil onus of proof.

2. an order for striking off should only be made when the probability in that the solicitor is permanently unfit to practice NSW Bar Asso v Maddocks

3. A conviction for a serious offence is not necessarily sufficient reason for striking off of that person Ziems

4. Conviction and imprisonment is not irrelevant Ziems

5. considering the conduct involved in the conviction whether it is of a personally disgraceful character that they should not remain a member of the profession.

6. pleading guilty to the charge would usually be counted in her favour

7. if not occurring in the course of professional practice may demonstrate unfitness to practice if it amounts to personal qualities essential for the conduct of practice.

8. the concept of 'good fame' (reputation) and 'character' (Who I am inside) has a two- fold aspect. Fame refers to a person's reputation, character refers to the persons actual nature

9. the attitude of the professional association in the application is of considerable significance.

10. the question is of 'present fitness', not fitness at the time of the crime (also A Solicitor v Law Society of New South Wales)

Note: the standards of the profession change over time

Ordered that the practitioner work with a medical practitioner for 2 years.

Conviction of serious offence is no sufficient in itself to strike a lawyer off the role.

A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253

Solicitor convicted of sexual offences against a child under the age of 16 in 1998 and 2000. The 2000 offences were later quashed but he failed to disclose these offences even when he was in the process of being investigated by the Law Society for the 1998 offences.

in Mitigation:

- when the offences occurred in April-May 1997, he had:

- - been made redundant by his law firm;

- - father diagnosed with mesothelioma

- - claimed to be suffering from depression and physical exhaustion

- admitted the offences and sought psychiatric help

- he also later went on to marry the mother of the girls who was supporting them.

- no obvious permanent damage to the girls' mental health

- Pled guilty when charged

- family very supportive

- professor stated that he believed that he would not likely reoffend

The district court believed that his actions were out of character and were unlikely to be repeated. on appeal his convictions were quashed.

However, in 2000, one of his stepdaughters made a further allegation which he denied. Later that year, the law society contacted him about disciplinary proceedings relating to his 1997 charges. He chose not to disclose any further allegations against him

The law society sought and successfully obtained declarations from the NSW Court of Appeal exercising its inherent jurisdiction to discipline the practitioner that:

- 1(a) the 1997 offences constitute professional misconduct

- 1(b) failing to disclose further charges constituted a breach of candour

- 2 not a fit and proper person and name be removed from the roll

The appellant sought to have these declarations set aside

Held: appeal allowed in part - Dec 1(a) and (2) set aside

Principles:

- Declaration 1(b) stands because the appellant failed to disclose further charges of which he had been convicted

- declaration 1(a) set aside nature of the trust and the circumstances of the breach were so remote from anything to do with professional practice

- the appellant was able to convince the courts that he was in fact a fit and proper person because he had been rehabilitated. No further orders were necessary as the HC found that the 5 years that the Appellant had not renewed a Practicing certificate was sufficient suspension.

Legal Services Commissioner v Mullins [2006] LPT 012 (Queensland)

FACTS: Barrister knew of a wrong/false assumption made in the medical report and used it in mediation to his advantage.

- Client was being represented in a mediation in relation to an insurance claim following a car accident.

- Before mediation, the client was diagnosed with cancer. Barrister advised that should disclose cancer facts to the other side but would likely adjourn the mediation so that they could investigate it. Instructed not to disclose cancer facts unless legally obligated to do so and wished for the mediation to proceed.

- Barrister prepared an outline of argument that based its force in medical reports that were prepared about the client's life expectancy, which was a critical part of the magnitude of the claim. The reports did not include the facts about the client's cancer.

In basing much of the discussions in mediation around the outline document, the barrister was effectively inducing the insurer and their reps to believe that the client's life expectancy was much longer than it in fact was.

HELD:

By continuing to call the reports in aid as information supporting the claim after learning the cancer facts and recognising their significance, the barrister was held to have intentionally deceived the insurer and their reps about the accuracy of the assumption which induced them into settlement.

· Involved a substantial departure from the standard to be expected for legal practitioners of good repute and competency and constituted professional misconduct

· The financial consequences for the insurer entering into that settlement were serious and after the deception was discovered, the insurer instituted proceedings to recover the settlement sum. The settlement was confidential and the sum of the insurer's loss was unknown.

· - a barrister must take all necessary steps to correct any false assessment unknowingly made by the barrister to the opponent as soon as possible after the barrister becomes aware the statement is false.

· - Counsel should bring a level of honesty when dealing with the mediation process as fraudulent and deceitful conduct undermines the whole process. Should not be dishonest even by omission for mere economic self interest.

· - it was clear that the barrister purposely deceived Suncorp - this deceit was considered professional misconduct

· Barrister publicly reprimanded and fined $20,000 plus costs order.

See Chamberlain but penalty suggests that this offence wasn't quite on that high level.

NSW Bar Association v Meakes

Facts:

The respondent Mr Meakes had been a barrister for over twenty years without any incidents on his professional record. In 2000, Meakes confessed that he had initially overcharged a client.- Meakes halved the clients bill from $24k to about 12k. Furthermore, Meakes returned the extra monies to his client and paid the assessor's costs.

- a complaint was made to the NSW bar association, but there was an attempt to withdraw it when Meakes resolved the issue.- However, the NSW bar council decided to proceed with the matter.

The Tribunal stated that Meakes was guilty of charging over 66% of his fee and this constituted 'gross' overcharging.- while charging over 50% of ones fee usually constitutes professional misconduct, the tribunal felt that the circumstances should be examined in its entirety.

- Tribunal had to consider the vulnerability of the client and Meakes professional history.

- Highly critical of Meakes for not giving evidence

- Making restitution, character reference, length career etc

· Court found professional misconduct for overcharging - most fatally the barrister chose not to give evidence.

· Court found unsatisfactory professional conduct for no fee disclosure.

Imposed public reprimand

Relevant section: Legal Profession Uniform Law s172 (legal costs must be fair and reasonable)

Council of the New South Wales Bar Association v Sahade [2007]

Facts:Mr Sahade gave false names, addresses and phone numbers to obtain multiple Telstra shares that he was not entitled to in a deceptive and deceitful manner.

Decision:- under s 127 of the LPA (now s 297 LPUL), Mr Sahade was found guilty of 'professional misconduct'- received a fine of 10k- was given a public reprimand and appeal was launched by the NSW bar association to have Mr Sahade struck off.

CA disagreed - yes, guilty of professional misconduct but the Tribunal was correct in making findings on an interim basis and then revise those views at the second hearing. The penalty imposed was within range, being public reprimand and a fine of $10,000 and pay costs of the proceedings.

Appeal dismissed with costs of the appeal to be paid by the Association.

Principles:

- was guilty of misconduct in his personal life and this can only be penalised through a finding of 'professional misconduct' as 'unsatisfactory conduct' is only with regard to the practice of law.

- when considering removing a practitioner from the roll, the tribunal is able to make a decision by taking into account whether the barrister has reformed and made amends for his past conduct

NSW Bar Association v Howen [2008] NSW ADT 147

Facts:

- A barrister (Howen) acted on behalf of Mr Iverson in an unfair dismissal claim. Client Mr Iverson flight service director with Qantas International flight services suspended and ultimately fired for stealing company stores and breaching pre-flight briefing orders.

- the matter was meant to be actioned within 21 days of dismissal but was brought about 6 months later.

- the IRC dismissed the action because there was no reason given for the delay

- Howen claimed it was due to client's mental health issues -blamed his client's suicidal tendencies

- Client later proved that the delay was caused by Howen

Held:

- The Tribunal found that Howan knowingly lied by making false and misleading statements to the IRC. This was in breach of his duty to be honest and Candid.

- Tribunal said he caused the delay by failing to give evidence to the IRC and that he placed his interest ahead of his clients.

- Tribunal held that his behaviour would be considered 'disgraceful and dishonest' by his peers in the legal profession

- Barrister was putting his interests above his client's.

Knowingly misleading the court or filing with the court false information intending the court to act upon it establishes the lack of necessary character for the duties of a barrister and is wholly unfit to be a barrister in NSW - Nguyen v NSW Bar Association

Barrister struck off - led evidence of Axis I and II personality disorders but had no evidence of addressing these issues. He also had previous disciplinary actions against him for failing to file documents, delayed notification of an act of bankruptcy and failure to comply with a s152 Notice.

Council of the NSW Bar Association v Costigan

Bar Association applied to remove barrister's name from the roll because:

· Improperly dealt with client monies

· Practice when not entitled to do so

· Failed to notify the Association of a series of show cause events

Central issue was whether the show cause events took place.

Conduct was disgraceful and dishonourable:

· Money was withdrawn client's money was withdrawn before work undertaken or before a bill of services rendered - breach of rules as taking funds in advance is trust money and barristers are not allowed to take trust money.

· Put money into his personal bank account as opposed to a bank account held for the purpose of his law practice - reckless disregard of his professional obligations and dishonest.

· Taking money before undertaking work or rendering a bill and applying it to person use is a serious breach of professional standards.

· Representing a client whilst not holding a practicing certificate is a breach of trust that's fundamental to the barrister client relationship.

· No explanation for this conduct.

Show cause events:

· Failed to advise Association of convictions including drink driving offences - findings were relevant to findings of suitability as a legal practitioner and his candour

· Creditor's petition against him - reckless disregard for obligation of disclosure

Would cause embarrassment to the profession. Not fit and proper or of good fame and character.

Barrister found guilty of professional misconduct and was removed from the roll.

Kaye v Woods (No 2) (2016)

FACTS:

Proceedings for a medical negligence claim involving the P and D1 (a doctor) and D2 (hospital).

- A 13 year old girl had surgery for a ligament injury. The surgeon, Dr Woods, acted negligently and she contracted a streptococcal infection which caused necrotising fasciitis (flesh eating disease).

-Surgeon's solicitors served an export report by another Dr, Dr Hudson on 16 April 2016.

-However, the report was dated 2014. A letter was also served explaining that the report had been 'unfortunately overlooked until now'.

- plaintiff subpoenaed Wood's solicitors seeking documentation in relation to the decision to serve the 2014 report.

HELD:

-solicitor's misconduct/unsatisfactory professional conduct can operate to waive legal professional privilege if it is in furtherance of that conduct (eg misleading the court) where that conduct renders the solicitor liable to civil penalty (professional conduct proceedings).

- The duty of honesty extends to not putting forward facts which are liable to, or which in fact, mislead the Court or the opponent. It extends to conduct which is liable to mislead even where no false statement is made expressly or impliedly. Further, it is a breach of duty to mislead the court temporarily.

- The making of a statement that was false or misleading and known to be false or misleading to another solicitor would fall below the expected standard of conduct. The obligation on a solicitor not to make a false statement to an opponent now clearly applies to litigation generally.

- A lawyer has an unyielding commitment not to knowingly mislead the Court. While a lawyer does not generally have a duty to disclose information that is contrary to their client's interests, the lawyer cannot make representations that, although true, may mislead the Court. Once such a misleading impression has been created, even if innocently, the lawyer has an obligation to correct that impression as soon as he or she becomes aware of the true position.

Attwells v Jackson Lalic Lawyers

FACTS:

Former client suing lawyers who advised to accept liability for a larger ($3.4m) guarantee, being the whole guarantee, as opposed to the guarantee that the ANZ Bank sought to enforce ($1.75m).

· A notation in the consent orders indicated that the bank wouldn't enforce the $3.4m guarantee if the $1.75m payment was made within 5 months. The Attwells defaulted on that payment and the bank sought to enforce the $3.4m guarantee.

· The appellant sued the respondent in the SC for negligent advice. Respondent argued it was immune from such prosecution due to advocates immunity.

The CA held that the advice would attract advocate's immunity because it led directly to the settlement and was therefore intimately connected with the proceedings.

HELD:

Attwells appealed to the HC, which upheld the appeal by majority

· Accepted that the scope of immunity shouldn't be extended to cover negligent advice on the settlement of cases but rejected an argument that advocate's immunity should be abolished entirely (principle established by D'Orta-Ekenaike v Victora Legal Aid - the participation of the advocate as an officer of the court in the quelling of controversies by the exercise of judicial power which attracts immunity)

· The scope of immunity does not extend to advice which does not move the case in court toward a judicial determination and must be intimately connected with the steps taken toward that judicial determination (so consent Orders not covered).

· Must have some bearing on the conduct and steps taken in the case - work done out of court which leads to a decision affecting the conduct of the case in court - Giannerelli v Wraith

The court noted that it cannot delve into determining whether the appellant's case was weak or strong and the HC was only charged with determining whether the advice is protected by advocate's immunity only.

Council of the NSW Bar Association v Dwyer

Practice by barrister after surrendering certificate and receiving fees for that work, signed as 'barrister at law', and misled the Council

· Breaches LPUL - s10 (Prohibition on engaging in legal practice by unqualified entities) and (s10(2) (must not practice or take money), 11 (must not advertise or hold self out as a practitioner if not a practitioner)

· S6 defines engaging in legal practice to include practise law - if a person does something usually done by a legal practitioner and does it in such a way to lead the reasonable inference that the person is a legal practitioner

· Found not to be a fit and proper person and was struck off.

Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23

FACTS:

Nguyen charged on indictment with offences against the Criminal Code (NT) when he allegedly threw a bottle of beer at someone after a singing game went awry. He had been interviewed by the police about the offences prior to being charged. The interview, which was recorded, contained admissions together with exculpatory statements in the form of a claim of self-defence ("mixed statements").

First trial the P played the interview and the jury did not reach a verdict.

Second trial - P made tactical decision not to play it. Nguyen applied for a stay.

NT Supreme Court held that the prosecutor was not obliged to tender the interview as there was no general principle requiring a prosecutor to tender a record of interview simply because it contained admissible material.

Appealed to HCA.

HELD:

Prosecutor obliged to tender the recorded interview.

Key points in the joint judgment of 5 judges included:

- The principle that the prosecutor is obliged to present its case fully and fairly is "fundamental" to the conduct of a criminal trial.

- Fairness requires the prosecutor to present "all available, cogent and admissible evidence".

- There may be circumstances where it would be unfair to an accused to tender a record of interview (eg. where the accused has refused to comment).

- However, the prosecutor should tender mixed statements in its case unless there is a good reason not to do so.

- It should only be in those rare cases where the reliability or credibility of evidence is demonstrably lacking that the circumstances may warrant the prosecutor refusing to tender mixed statements.

- The admissibility of mixed statements is a separate question from whether the prosecutor has a duty to tender them (although usually mixed statements in a record of interview will be admissible).

Here the defendant's account was consistent and could not be described as demonstrably false simply because it differed from the account of others.

The prosecutor's tactical decision not to tender the interview to favour the prosecution case did not accord with a prosecutor's duties.

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2

FACTS:

Pasquale Barbaro and Saverio Zirilli were each charged with trafficking a total of 16.2 million tablets of MDMA and 100kg of cocaine. They pleaded guilty to the offences after the Commonwealth Director of Public Prosecutions told them that they would be looking at a total of 32 to 37 years imprisonment in the case of Mr Barbaro, with a non-parole period of 24 to 28 years, and a total of 21 to 35 years in the case of Mr Zirelli, with a non-parole period of 16 to 19 years.

They both admitted to other crimes hoping their honesty would be taken into account in sentencing.

Barbaro ended up with a term of life imprisonment, with a non-parole period of 30 years - much harsher than the 32 to 37 years proposed by the prosecution. Mr Zirilli was sentenced to 26 years imprisonment, with a non-parole period of 18 years.

They appealed on 2 grounds:

1. they only PG and made admissions after considering the sentencing range put forward by DPP

2. They had been disadvantaged by the Court not listening to the proposed sentencing range.

HELD:

Appeal dismissed.

Prosecutors cannot propose a sentencing range to the judge. However, both the prosecution and the defence can present to the court statistics and other evidence about the types of sentences that offenders in similar cases have received. This material can be taken into account by the judge in handing down a sentence.

Judges alone will determine the sentence, and prosecution opinions about what an appropriate sentence should be will be taken to be just that - an opinion.

CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9

FACTS:

Appellate charged with sexual assault against his daughter. Was referred to a treatment program. As part of entry into the program, the appellant made further disclosure regarding sexual offences against his daughter (of which his daughter had no memory) in an effort to show a positive commitment to change.

He plead guilty and was sentenced to these further offences. The District Court of New South Wales deferred sentence upon the appellant entering good behaviour bonds conditioned on completion of the Program. The DPP supported the imposition of non-custodial sentences in the unusual circumstances. However, the Attorney General of NSW nevertheless appealed against the inadequacy of the sentence. The original appeal before the CCA resulted in the appellant being re-sentenced to an aggregate sentence of five years and six months' imprisonment with a non-parole period of three years.

He appealed to the High Court on two grounds. Firstly that the CCA had made a legal error by placing the onus of proof on the appellant to demonstrate that the prosecution appeal should be dismissed.

Secondly, it was argued that the CCA had applied the relevant law incorrectly concerning the leniency that may be extended in the case of a guilty plea resulting from an offenders' voluntary disclosure of otherwise unknown guilt of an offence.

HELD:

The High Court unanimously allowed the appeal with regards to the first ground and allowed the second ground by majority. The Court held that before the CCA can allow an appeal by the prosecution against sentence, the prosecution must demonstrate both an appellable error in the sentencing judge's discretionary decision and negate any reason why the residual discretion of the CCA not to interfere should be exercised.

On the second ground, the High Court held that the CCA had failed to consider whether it had been open to the District Court to determine that a non-custodial sentence was unreasonably disproportionate to the nature of the offences.

At [64]:

"The determination of the appropriate sentence is one that rests solely with the court. The public interest in the sentencing of offenders does not permit the parties to bind the court by their agreement. Nonetheless, the prosecutor is under a duty to assist the court to avoid appealable error. Where the sentencing judge indicates the form of proposed sentencing order and the prosecutor considers that such a penalty would be manifestly inadequate, the prosecutor discharges his or her duty to the court by so submitting. The failure to do so is a material consideration in the exercise by the Court of Criminal Appeal of the residual discretion.

HT v The Queen

HT pleaded guilty to counts of obtaining money by deception and dishonestly obtaining a financial advantage. The Crown appealed, alleging that the sentence imposed was manifestly inadequate. The NSW Court of Criminal Appeal (CCA) allowed the appeal and resentenced HT to a higher sentence.

HT was a registered police informer. In the DC sentence proceedings, an affidavit by a police officer detailing HT's assistance to authorities (Exhibit C), was admitted into evidence. The sentencing judge took Exhibit C into account in discounting HT's sentence pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 ('C(SP) Act'). The Crown Prosecutor was given access to Exhibit C, but HT's counsel was not. Rather, the Commissioner of Police had presented HT's counsel with two options: first, if counsel were to have access to the affidavit to be provided to the court, the affidavit would be highly redacted (and much shorter); alternatively, if counsel agreed not to require access to the affidavit, the affidavit would be lengthy, and inferentially more favourable to HT. Counsel chose the latter.

In the CCA, two affidavits relied upon by the Commissioner were disclosed to HT's counsel. A third, which identified particular difficulties concerning disclosure in HT's case, was not provided to HT's counsel. The Crown had access to all three affidavits. The CCA upheld the Commissioner's objection to HT's counsel having access, on public interest immunity grounds.

The CCA determined for itself the extent of the discount on sentence, taking into account all three affidavits.

HT appealed to the High Court on grounds including that she was denied procedural fairness, and that the CCA had no power to deny access to Exhibit C.

The High Court allowed the appeal.

HELD:

Fundamentally, courts are obliged to accord procedural fairness to parties, including giving a reasonable opportunity of being heard - to appear and present one's case- procedural fairness is lying at the heart of the judicial function.

It is a fundamental assumption of the adversarial system that parties know what case the opposite party seeks to make and how they seek to make it. A party can only be in a position to put their case if the party is able to test and respond to the evidence.

HT was denied procedural fairness. Denying defence counsel access to Exhibit C meant that the appellant 'did not have the opportunity to test the accuracy of the evidence' or of making submissions concerning the application of that evidence to s 23 of the C(SP) Act'.

Public Immunity -

The law accepts that there may be a public interest in certain classes of documents being immune from disclosure, the non-disclosure results from the objection to their production being upheld. Public interest immunity has nothing to say about whether a document should be admitted or, once admitted, whether or by whom it is seen.

The 'closed material procedures', by which documents are withheld from a party, are fundamentally different from public interest immunity procedures, not least because public interest immunity procedures respect natural justice principles. Where a public interest immunity claim is unsuccessful, documents will be produced and thereby disclosed. Where a public interest claim is successful, the documents will not to be produced and are thereby not available to either party and the court may not use them. 'There is no question of unfairness or inequality'.

Section 23(2) of the C(SP) Act requires a sentencing court to have regard to assistance provided by the offender and the authority's evaluation of the assistance. The Commissioner of Police should put before a sentencing judge such evidence as is necessary to enable the sentencing judge comprehensively and fairly to assess these matters - this is part of the Crown's duty to the court.

If such evidence gives rise to issues of confidentiality, the judge should be approached with a view to making tailored orders.

McKell v The Queen (2019)

FACTS: Appellant tried w co-accused on indictment of drug-related offences. Charges related to 2 freight consignments and $400k cash which was located in a box in his bedroom. He said it was from gambling success.

During the trial judge's summing-up to the jury, he suggested that the first consignment may well have contained drugs, the importation of which was the responsibility of the appellant as part of "an organisation of great sophistication". No such suggestion had been made by the prosecution at trial. The trial judge also suggested that a text message sent by the appellant to his co-accused showed that the appellant was knowingly involved in the importation of drugs. The trial judge also commented on the evidence of the appellant's online betting accounts. In doing so, the trial judge went beyond correcting the erroneous reliance by the appellant's counsel on the accounts as proof of the appellant's success as a gambler, and belittled the appellant's counsel.

The appellant was convicted and subsequently sentenced to imprisonment for 18 years and nine months, with a non-parole period of 11 years and nine months. He appealed against his conviction to the Court of Criminal Appeal, alleging that the trial judge's summing-up to the jury occasioned a miscarriage of justice. A majority of the Court of Criminal Appeal held that the trial judge's comments did not occasion a miscarriage of justice.

HELD:

The High Court unanimously held that the trial judge's comments were so lacking in balance as to be an exercise in persuading the jury of the appellant's guilt, were unfair to the appellant, and gave rise to a miscarriage of justice.

As a result, the Court quashed the appellant's conviction and ordered a new trial. A majority of the Court also held that trial judges should refrain from making comments that convey their opinion as to the proper determination of a disputed issue of fact to be determined by the jury.

Re Davis (1947)

Facts:

-Davis was convicted of breaking and entering in 1934

- he did not disclose to the admission board that he had been convicted of breaking and entering.

- he also did not disclose the information to the two solicitors that provided him with character references as per the r 40 of the Bar admin rules.

- he was admitted in 1944

Principles:

'No candidate, however qualified in other respects, shall be admitted as a barrister unless the board is satisfied that he is a person of good fame and character' s 9

Decision:

The prothonotary of the SC removed Davis' name for the following reasons:

- he was not a fit and proper person

- he was not a person of good character

- he committed a criminal offence

- he failed to disclose the offence to the board

- he had deceived the board

Davis was disbarred.

For the proper exercise of the privilege of being at the Bar requires faith in the barrister by his colleagues and the Bench.

Lack of candour. Had he had frankly disclosed the offence it would have greatly assisted him in showing that his character since the offence may have changed, given the lapse of time since the offence.

Wood v R (2012)

FACTS: Related to the murder of Carolyn Byrne.

At trial, the P advanced an entirely speculative and internally inconsistent theory and the trial judge indicated that he didn't accept the P's case theory - that the D, who worked for Renee Rivkin, chose to kill the V because she knew of the Offset Alpine Scandal and that she might have told someone about it. Rivkin would blame the D and he would lose his job.

P also put 50 questions to the jury, which were rhetorical, - reversed the onus of proof - asking the jury to consider whether the defendant had provided a satisfactory answer (even in a rhetorical manner)- made submissions that were intended to smear the defendant's character that were not based on material in evidence, invited speculation, and were unreasonably prejudicial.

HELD:

As provided by the rules, a prosecutor:

- must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law to be applied to the facts

- must not press the case for conviction beyond a full and firm presentation of the case

- must not, by language or other conduct, seek to inflame or bias the court against the accused

- must not argue any position of fact or law which the prosecutor does not believe on reasonable grounds to be capable of contributing to a finding of guilty and also to carry weight.

A miscarriage of just may occur where the Prosecutor makes comments that suggest (whether directly or indirectly by appealing to prejudice or passion) that the jury should follow some impermissible path of reasoning.

The Crown address might require censure by an appellate court where:

1. submissions are based on material not in evidence

2. submissions are intemperate or inflammatory, tending to arouse prejudice or emotion

3. submissions belittle or ridicule any part of the accused's case

4. impugning the credit of a Crown witness where witness not given the opportunity to respond (not declared unfavourable)

5. submissions are made that convey the prosecutor's own opinion6. submissions are made that contain matters which the appellant is asked to explain (inappropriately reversing the onus of proof).

To determine whether there has been a miscarriage of justice it is necessary to consider the whole of the address. Each case will depend upon its own circumstances.As a matter of fairness in a criminal trial, the Crown is required to formulate the basis upon which it puts its case against the accused, call that evidence in its case and essentially to adhere to that case.

Gilham v R (2012) 224 A Crim R 22

FACTS: Gilham charged & convicted with killing his parents and brother. He appealed on a number of grounds, one being that the prosecutor engaged in XX of the accused in an improper manner and addressed the jury improperly.

Also requiring demonstration of dexterity with a knife inappropriate, improper address to the jury and failure to call expert witness on stab wounds.

HELD:

What was formerly Rule 64 of the NSW Barristers' Rules (now Rule 84) provides that "A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused". The words used by the Crown Prosecutor and the manner in which her challenge was put to the applicant were inflammatory and inappropriate. The Crown Prosecutor's use of similar language in her closing address was similarly inappropriate."

Whole of crown conduct was sufficient to cause miscarriage of justice.

R v Reardon [No 2] (2004) 60 NSWLR 454; [2004] NSWCCA 197

Facts:

The first case involved the respondent Mr Reardon who was to import cocaine from South America

- Mr Reardon was to travel to Chile to facilitate the delivery of the Cocaine

- $375k was sent from Aus to South America

- sentence was 18 years

- Leave was granted to appeal the sentence

- Application was made to re-open the appeal on the grounds of an alleged miscarriage of justice as a result of non-disclosure of running sheets recording the criminal actions - Reardon said these would show he never intended to import cocaine but rip off the witness of their money

HELD::

- duty of disclosure should not be approach narrowly

- unless disclosure is excused because of privilege or public interest docs should be disclosed if they are relevant

- Prosecution must disclose docs which are material, a doc is material if it:

- is relevant or possibly relevant

- raises new issue

- provides lead on evidence

This is not limited to admissible evidence

- Therefore, running sheets should have been disclosed

- the duty of disclosure includes disclosing material 'even if the defence may be able to use it to tailor its evidence to conform with information in the crowns possession'

- there was no miscarriage of justice as the material that could have been disclosed would not have led the jury to an acquittal.

Bradley v Senior Constable Chilby (2020)

FACTS:

Bradley bit the finger of a woman down to the bone. She was hospitalised for treatment and about 6 weeks later reported it to police.

He was arrested by Chilby & charged with AO GBH. He admitted biting but said she was on drugs at the time and it was in self-defence.

He pleaded NG and a subpoena was issued to police that was not complied with. His solicitor wrote to all depts involved pointing out their duty of disclosure. He was seeking Complainant's crim history, fact sheets relating to her, material held by police on her credibility among other docs.

When Subpoena was not answered he filed a NOM seeking disclosure or a stay until duty of disclosure complied with. This was dismissed and he appealed to SC.

HELD:

- The prosecution is required to disclose material.

- Judgment referred to the case of Reardon and that the P has to approach relevant material widely (and that the facts sheets for the complainant and conversations between the OIC and senior officers or PP both likely in categories from Reardon requiring disclosure.)

- The duty of disclosure is not discharged just because the matter could be explored in cross examination, or that the hearing could have been conducted without the material.

- The Prosecutor's cavalier approach to her duty of disclosure fell far short of what the law requires.

NSW Bar Association v Punch

Facts:

Barrister representing an accused on an armed robbery charge where the alibi was that the accused wasn't there. The police captured the barrister's discussions with the accused in jail where the accused admitted that he was present at the robbery. Despite this, the barrister went on to arrange 4 of the accused's family members to give the alibi evidence.

Held:

· Professional misconduct because intentionally mislead the court. Must not lead evidence that know is untrue.

Following Meakes - The failure of the barrister to give evidence was inexcusable. The failure to give evidence entitled the Tribunal to draw an inference that the sworn testimony of the barrister would not have assisted his case.

Clive Andrews Evatt (Legal Professional Disciplinary Tribunal, No 29 of 1992)

Mr Evatt acted for Mr Lobel in a matter where he was evicted. He lost and when the owner took possession he wrote to Mr Lobel telling him the shop had been taken at 12 noon.

Lobel appealed and won the second trial. He made a complaint to the Bar Associate about Mr Evatt, which was dismissed.

Lobel brought proceedings against McIntosh alleging trespass and negligence. As part of his case he said the shop had been entered at 10am. There was evidence that this was not correct.

When he heard about this, Evatt gave the letter from Lobel to the barrister for McIntosh. The letter was tendered and it was submitted that privilege had been waived.

Whilst it impacted Lobel's case and credit badly, he won on other grounds (which was reversed on appeal).

Lobel made a complaint.

Whilst the complaint was in process, Evatt acted for Lobel without charge in defamation proceedings and got a good outcome. Lobel withdrew the complaint.

The tribunal heard that Evatt had been suffering an abnormal state of mind, as his wife had given birth the night before he gave the letter, he had no sleep, no food and had not taken his blood pressure medication. He was remorseful, and attempted to stop the letter being used the day after he gave it. He also acted for Lobel at great cost as a way of apology.

HELD:

The tribunal recognised that he was suffering 'abnormal state of mind', was remorseful, tried to stop it, apologised and acted for free.

He was still found guilty of professional misconduct and Ordered to pay costs but no further penalty was made.

Bar Rule 123: Council of the New South Wales Bar Association v Raphael [2021] NSWCATOD 44

The barrister and a junior female solicitor (Ms X) were each representing a party in Supreme Court proceedings. A Registrar had directed Ms X to obtain instructions from her supervising solicitor about the delay in prosecuting their client's case. The solicitor was sitting in a conference room alone with the door closed while she sought to obtain that information.

The barrister entered the room, referred to Ms X's wedding ring and said words to the following effect:

"Won't your husband get jealous because we are spending so much time together? He will think something is going on."

Ms X became upset and started to cry. The barrister placed his arm on Ms X's shoulder and kissed the top of her head. He then said, "Don't worry you poor thing."

HELD:

Barrister admitted and the Tribunal found that putting his arm around the solicitor, kissing the top of her head, in the context of the two comments were within the definition of sexual harassment.

It noted that he may have meant it to be chivalrous as she was upset, but that he needed to understand that kind of conduct is not perceived as comforting, chivalrous or vaguely humorous.

He was reprimanded and required to undergo education and counselling.

Gould, Glenn, Re, Legal Services Tribunal, No 5 of 1997

There were 4 grounds complained of:

1. Inappropriate retention of brief - barrister acted in AVO proceedings that were adjourned part heard to 15 July 2017. On 22 May, barrister accepted brief for a Family Court matter and later discovered that it was fixed for hearing on 15 - 17 July. Should have returned the brief for the Family Court matter knowing that he was unavailable (cab rank rule)

a. Tribunal held that it was inappropriate to accept the brief. Must be with permission of the solicitor and if enough time has been given for another practitioner to take over the case.

2. Inappropriate return of brief - on 12 July (Friday before the Monday of the AVO proceedings), barrister told the solicitor that he wouldn't appear in the AVO proceedings. It was the barrister's obligation to keep acting unless he had the permission of his instructing solicitor after clearly outlining the circumstances in which he wished to return the brief and informed the solicitor of the relevant Bar Rules. He failed to do these things.

a. Held to be standards falling short of those expected of a barrister.

3. Misleading conduct - at all times prior to 12 July (when he knew in June about the Family Court brief) holding himself out to the solicitor to be available to appear in the AVO matter. Did not say anything at the client conference that he had the day before the hearing that he would be unavailable. Failed to inform the solicitor who had briefed him in the Family Court matter that there was a real possibility that he wouldn't be able to appear.

a. Fell short of standard expected of a barrister.

4. Misleading or attempting to mislead the NSW Bar Association - in his responses to the Association, he held himself out to have complied with Rule 95 when he had not.

a. Barrister wasn't as open as he ought to have been and attempted to mislead. Could not find intentional misleading

Barrister found guilty of professional misconduct. A public reprimand was ordered with costs. No further fine imposed because of the likely significant costs that the barrister would pay.