Bringing the legal profession in to disrepute - Update: Ethics Check for Lawyers Series
This article quotes language that could be considered profane, vulgar, or offensive by some readers.
In March 2021 the New South Wales Civil and Administrative Tribunal published its headline grabbing stage 1 decision in Council of the New South Wales Bar Association v EFA  NSWCATOD 21 (see our article: Bringing the Profession in to Disrepute: Ethics Check for Lawyers Series 18 March 2021).
The case concerned a barrister who was found guilty of unsatisfactory professional conduct for having engaged in some ‘poorly judged, vulgar and inappropriate behaviour’ at a dinner to mark the conclusion of a conference of barristers’ clerks. More specifically, the barrister was held to have made gestures towards and briefly simulated oral sex with another male barrister and then to have lightly pushed a female clerk’s head forward whilst saying to her ‘suck my d***’. The decision that this conduct amounted to ‘merely’ unsatisfactory professional conduct rather than the more serious ‘professional misconduct’ raised eyebrows in the profession and in the press.
In June 2021, following the stage 2 hearing, the Tribunal went on to issue a reprimand and an order for the barrister to pay the Bar Council’s costs. The Tribunal declined to impose a fine or to order that the barrister undertake a course of counselling: Council of the New South Wales Bar Association v EFA (No2) .
The Bar Council appealed against both of the Tribunal’s decisions. In respect of the stage 1 decision it sought an order that the barrister’s conduct constituted professional misconduct (at common law or pursuant to the statutory definition) and in respect of the stage 2 hearing it sought, in addition to the formal reprimand, an order that the barrister pay a fine and undertake a course of counselling.
In this article we summarise the Court of Appeal’s decision in Council of the New South Wales Bar Association v EFA  NSWCA 339 (21 December 2021).
Issues on Appeal
The barrister filed a Notice of Contention challenging the Tribunal’s finding that he had said to the clerk ‘suck my d***’’.
The main issues in the appeal were:
whether the barrister said to the clerk the words ‘suck my d***’
whether there is a distinct category of ‘professional misconduct’ at common law beyond what is incorporated into s297 of the Uniform Law
whether the barrister’s conduct would justify a finding that he was not a fit and proper person to engage in legal practice
whether the Tribunal erred in its assessment of the seriousness of the barrister’s conduct by imposing only a reprimand.
Whether the barrister said to the clerk the words ‘suck my d***’
The Court undertook a close examination of the CCTV footage and was satisfied that the barrister made the offensive remark or something very similar to the clerk as there was no explanation for the clerk’s immediate distress and complaint to another clerk other than it was an accurate reflection of what the barrister had said to her.
Whether there is a distinct category of professional misconduct at common law beyond what is incorporated into s297 of the Uniform Law
Section 296 of the Uniform Law defines ‘unsatisfactory professional conduct’ as:
“…includes conduct of a lawyer occurring in connection 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 lawyer”.
Section 297(1) of the Uniform Law defines ‘professional misconduct’ as:
‘(a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b) 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 common law concept of professional misconduct has previously been defined as ‘conduct which would be regarded as disgraceful or dishonourable’ by one’s professional peers: Allinson v General Council of Medical Education and Registration  1 QB 750. It is known as the ‘Allinson test’.
However, the Court of Appeal in EFA held that there does not exist, in the common law of New South Wales, a distinct category of professional misconduct that is regarded as ‘disgraceful or dishonourable’ by professional peers and divorced from the test of a ‘fit and proper person to engage in legal practice’.
The Court said that is not to say that the Allinson test is irrelevant. It has been treated as a useful test in the determination of the fitness of a legal practitioner to remain on the roll, but it is not a separate category of professional misconduct independent of or different from the statutory definition.
Whether the barrister’s conduct would justify a finding that he was not a fit and proper person to engage in legal practice
The Court held that conduct that would justify a finding of unfitness to engage in legal practice is not necessarily conduct that must result in such a finding. 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.
The Court took in to account the isolated nature of the conduct and found that the Tribunal did not err in finding that the barrister’s conduct was not conduct that would justify a finding of unfitness.
Whether the Tribunal erred in its assessment of the seriousness of the barrister’s conduct by imposing only a reprimand
The Court held that saying ‘suck my d***’ to the clerk “elevated the conduct into a new dimension” and called for severe condemnation worthy of a pecuniary penalty over and above the reprimand. The Court received evidence that the barrister’s insurance policy would cover any costs orders in the proceedings but the barrister’s insurance premium had increased from just over $4,500 per year to just over $66,000 per year and his deductible had increased from zero to $50,000 as a result of the proceedings. His 2021 policy is also subject to a limit of indemnity of $1.5 million per claim as distinct from $4 million in the previous year.
The Court held that the conduct towards the clerk was ‘demeaning, humiliating and inexcusable. Intoxication afforded no excuse’. However, given the significant financial penalty already levelled against the barrister by his insurer, the Court held that the imposition of a fine was not necessary in light of the protective, not punitive objective of disciplinary orders. Further, that in considering the penalty issue, the conduct needed to be seen in proportion to what it had already cost the barrister in personal, emotional and financial terms. In particular, the Court noted that a level of extra-curial punishment had already been visited on the barrister including:
public notoriety and humiliation
a four year period of anxiety, while the Bar Council’s investigations proceeded
a further period of anxiety since the Bar Council’s filing of the appeal
the severe impact on his mental health detailed in medical reports
the termination of his marriage and disruption to his family
a very significant quantifiable cost resulting from the variation to the terms of his insurance policy
an unquantifiable but real and significant impact on his practice.
The Court also agreed that there was no need for counselling given the isolated nature of the conduct, the barrister’s insight, and the fact that there was no likelihood of the conduct ever being repeated.
Non publication order
The Court found that the evidence established that if the barrister’s name were to be made public his already fragile mental health would be at risk, and therefore an order restricting publication of identifying information was necessary to protect the barrister’s safety.
The Court ordered that the publication of information tending to reveal the identity of the barrister is prohibited in Australia for a period of 20 years.
The Bar Council’s appeal was dismissed and the Bar Council was ordered to pay the barrister’s costs of the appeal.
Author: Jennifer Shaw