Complaints and Discipline - Ethics Check for Lawyers Series
According to the most recent Annual Report of The Office of the Legal Services Commissioner (OLSC), 2,714 written complaints were made against legal practitioners in 2020-2021, of which 1,405 were assessed as disciplinary matters.
Disciplinary proceedings initiated against solicitors and barristers are heard in the occupational division of the New South Wales Civil and Administrative Tribunal. Each case is decided on its own facts. In this bulletin we discuss the purpose of disciplinary proceedings and then review some recent disciplinary decisions of the Tribunal. Finally, we discuss a recent case decided on 12 April 2022 in which the Law Society of NSW successfully applied for the removal of a solicitor’s name from the roll pursuant to the Court’s inherent supervisory jurisdiction.
Protection of the Public
Disciplinary proceedings are protective not punitive. The Court of Appeal considered the ways in which the protective purpose of disciplinary proceedings may operate in NSW Bar Association v Meakes  NSWCA 340 at :
“… First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession.”
Tribunal Case summaries
NSW Legal Services Commissioner v Zou  NSWCATOD 139
This case concerned a solicitor falsely witnessing a signature on an affidavit.
The solicitor in this case acted for a wife and husband in an application for divorce, in the Family Court.
The solicitor had properly witnessed the husband and the wife execute two versions of an affidavit in the matter, but later formed the view that the affidavits executed in her presence were not in a form suitable for e-filing. The solicitor therefore sent an email to the wife (who was by then overseas) and the husband asking them to sign a further affidavit, being an “Affidavit for eFiling application (divorce)” (e-affidavit).
The solicitor received the emailed e-affidavit that had been signed by the wife overseas and compared the signature of the wife to the previous signatures on the two versions of the earlier affidavit. The solicitor formed the view that the wife’s signature was identical to her previous signatures and the solicitor signed the e-affidavit as witness to the wife’s signature notwithstanding she knew or ought to have known that the wife did not sign the e-affidavit in her presence.
The main issue in dispute in the case was whether the conduct constituted professional misconduct or the less serious unsatisfactory professional conduct.
The solicitor said in response to the complaint that the wife had begged her to witness her signature using her past signatures and the solicitor therefore felt pressure from her client and she was also unfamiliar with the administrative filing processes of the Family Court. The Tribunal held that pressure from clients and embarrassment are not and cannot be excuses for lapses in compliance by solicitors with their professional conduct obligations.
However, the Tribunal held the solicitor’s misconduct was confined to a single departure from expected standards and the Tribunal accepted that the solicitor incorrectly believed that ‘witnessing’ the signature was akin to ‘verifying’ the signature was not forged or fraudulent.
The Tribunal found the solicitor guilty of unsatisfactory professional conduct and ordered the solicitor to be reprimanded, fined $3,000 and undertake (and pass) an ethics course. The solicitor was also ordered to pay the OLSC’s costs.
Council of the New South Wales Bar Association v Raphael  NSWCATOD 44
This case concerned a barrister who admitted sexually harassing a young female solicitor in a conference room in the Supreme Court of New South Wales.
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.”
The barrister admitted and the Tribunal found, that placing his arm on Ms X’s shoulder for between 10 and 20 seconds and kissing the top of her head, in the context of the comments he made, comes within the definition of sexual harassment in s 22A of the Anti-Discrimination Act 1977 (NSW). It was an unwelcome act of physical intimacy. Having regard to all the circumstances, a reasonable person would have anticipated that Ms X would be offended, humiliated or intimidated by the conduct.
The Tribunal made a finding of unsatisfactory professional conduct both because the conduct amounted to sexual harassment and it also breached the Barristers Rules that prohibit sexual harassment and workplace bullying and that prohibit conduct that is likely to diminish public confidence in the legal profession or otherwise bring the legal profession into disrepute.
The Tribunal said:
“[The barrister] needs to understand that this kind of conduct is not perceived by the vast majority of women as being comforting, chivalrous or even vaguely humorous. Sexual harassment of this kind has the potential to adversely affect a victim’s mental health and to dissuade her from continuing a career in the law”.
The barrister was reprimanded and ordered to undergo education and counselling.
Court of Appeal Case Summary
Council of the Law Society of NSW v Clarke  NSWCA 57
In this case the Law Society applied to the Court of Appeal in its inherent jurisdiction for removal of the solicitor’s name from the roll following criminal charges to which the solicitor had pleaded guilty.
The solicitor was convicted of 6 offences of dishonestly obtaining an advantage by causing the fraudulent transfer of large sums of money belonging to clients of the firm where he was employed to his private bank account in order to fund a gambling addiction. He was sentenced to imprisonment of 6 years with a non-parole period of 3 years.
The Court found that the solicitor had good prospects of rehabilitation and had expressed significant remorse and regret. He consented to the Court removing his name from the roll. The Court nevertheless needed to satisfy itself that it was appropriate to make an order for removal. The question was whether the Law Society had demonstrated that the solicitor is not presently fit to practise law and is likely to be unfit in the indefinite future.
The Court held the solicitor was not a fit and proper person to be a lawyer and that he will continue to be unfit for the foreseeable future. The Court held that his conduct was ‘clearly dishonourable and disgraceful, and inimical to the reputation of the legal profession and the public confidence in its integrity’.
The Court ordered the solicitor’s name to be removed from the roll.
The cases in this bulletin highlight the types of complaint that can result in disciplinary proceedings and the range of orders that may be made in such matters. It also serves as a reminder that the Court retains supervisory jurisdiction over legal practitioners and it can make orders for removal from the roll in appropriate cases whether or not any recommendation for removal has been made by the Tribunal.
Author: Jennifer Shaw