Introduction

The Nature Of Disciplinary Proceedings

The Onus And Standard Of Proof, And Obligations Of Candour

Findings Of Misconduct

Definitions Of Misconduct

The Role Of Character Evidence In Disciplinary Proceedings

Types Of Disciplinary Action

Protective Ethics Rulings

The Operation Of ‘The Bar Rules’

1. The object of this paper is to provide, with reference to authority, an insight into the nature of disciplinary proceedings affecting barristers and adversarial techniques for dealing with them generally.

2. The paper touches only briefly on questions of legal ethics - a much broader topic - and then only to the extent necessary to explain aspects of disciplinary proceedings.

3. The Bar Association has sponsored other seminars on ‘ethics’ (including, most recently, a seminar the subject of a paper presented by R.W.R. Parker Q.C. on 20 May 1997) and reference can be made to Bar News for regular reports (edited by R.C. McDougall Q.C.) on ethics rulings as well as disciplinary cases involving barristers.

4. Reports of cases in Bar News are generally summaries, rather than full reports, of cases. The authorised law reports (including CLRs and NSWLRs) contain the main cases of significance and other cases can often be found in the Legal Profession Disciplinary Reports (‘LPDR’) published as a supplement to the (NSW) Law Society Journal. It should be noted, however, that the LPDRs are sometimes edited reports, the editorial content of which may not be manifest.

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THE NATURE OF DISCIPLINARY PROCEEDINGS

5. Legal profession disciplinary proceedings are a special type of proceedings, the jurisdiction in respect of which is neither: (a) criminal, nor (b) comparable to ordinary civil proceedings involving a contest as to the private rights of disputing parties. Disciplinary proceedings are ‘sui generis’. They generally involve ‘a strong adversary flavour’ even if taking the form of an inquiry rather than proceedings on information (as noted in Law Society of NSW v Jackson [1981] 1 NSWLR 730 at 734B) but they are always concerned with the protection of the public. And because they have the protection of the public as one of their primary objects, they cannot necessarily be determined on the same basis as adversarial proceedings. Both the nature and purpose of disciplinary proceedings indicate that, unless and save to the extent that specific procedures are laid down by statute or by rules of court, and subject to the requirements of procedural fairness, they may be conducted in whatever manner the Court exercising disciplinary jurisdiction in the particular case considers appropriate to that case: Wentworth v NSW Bar Association (1992) 176 CLR 239 at 250-251.

6. Although the law and practice relating to the disciplinary jurisdiction over legal practitioners may be informed by other areas of the law, their ultimate source and rationale is to be found in what is required for the proper administration of justice, a fact which cannot lightly be forgotten.

7. Allowing fully for the important, statutory functions performed by the Legal Services Commissioner, the Legal Services Tribunal, the NSW Bar Association and the Law Society of NSW (under the Legal Profession Act 1987), ultimately it is the function of the Supreme Court of NSW to define and maintain the standards required of a practitioner of the Court: Re Guild (1979) 32 ACTR 13 at 35-36; Chamberlain v ACT Law Society (1993) 118 ALR 54 at 58, 69.

8. By virtue of section 5 of the Legal Profession Act 1987, if not otherwise, a legal practitioner (an expression which includes a barrister) is an officer of the Supreme Court. Although the Act affects the Court's inherent jurisdiction in relation to admission of legal practitioners (as to which, see sections 4 and 17), the jurisdiction remains substantially unimpaired so far as concerns the discipline of practitioners: section 171M.

The central role of the Court finds expression also in those provisions of the Act which provide for appeals from the Legal Practitioners Board on an application for admission (section 14), a decision of the Bar Council or the Council of the Law Society relating to a practising certificate (section 38B), and a determination of the Legal Services Tribunal on a complaint of misconduct (section 171F).

In addition to its supervisory jurisdiction over officers of the Court and the appellate powers conferred on it by the Act, the Court can, in an appropriate case, grant administrative law remedies affecting persons exercising statutory disciplinary functions. Disciplinary proceedings can, in an appropriate case, be stayed as an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 392-393, 395-396.

9. In regulating standards the Court may crystallise its thinking by asking whether a legal practitioner whose character or conduct is under review can properly be held out as a fit and proper person to be a practitioner of the Court: Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 444C, citing, inter alia, Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 681, 682, 691 and The Southern Law Society v Westbrook (1910) 10 CLR 609 at 622, 625, 627.

10. Although this question is usually answered by reference to an assessment of the trustworthiness, reliability and integrity of the particular practitioner before the Court, the public interest character of the jurisdiction exercised by the Court sometimes involves a broader approach. Thus, for example:

11. Although disciplinary proceedings profoundly affect those the subject of them, and may involve a punitive element, such proceedings are ultimately designed to be protective of the public rather than to punish particular practitioners and, accordingly, orders going beyond what is necessary to protect the public may be appellable: Harvey v Law Society of NSW (1975) 49 ALJR 362 at 364.

Orders for the removal of a person's name from the roll of practitioners, or for suspension, or otherwise directly limiting his or her entitlement to practise are sometimes described as ‘protective orders’, in contrast to other orders (e.g. imposing a fine or reprimand), to emphasise the need to found them purely on a need to protect the public and to eschew punishment as a primary factor; but all disciplinary orders must ultimately be founded on public interest considerations, a primary concern of which is protection of the public.

12. Given the public interest aspect of the proceedings, estoppel concepts do not as such apply to disciplinary proceedings: Weaver v Law Society of NSW (1979) 142 CLR 201 at 207 and [1977] 1 NSWLR 67 at 72-77; Nelson v ACT Law Society (ACT Supreme Court, Higgins J, 5 June 1992, unreported).

However, the Court retains a discretion as to whether it will allow an issue to be re-opened where there has been earlier litigation dealing with substantially the same issues. That discretion must be exercised by weighing countervailing public interests, balancing (on the one hand) the need to protect the public by ensuring only fit and proper persons undertake legal work and (on the other hand) the public policy of bringing litigation to an end.

14. As a general rule, the party having carriage of disciplinary proceedings (whether described as an informant, prosecutor, complainant or otherwise and whether the form of the proceedings is an inquiry or otherwise) bears the onus of proving that the practitioner the subject of disciplinary proceedings has been guilty of misconduct: Ex parte Attorney-General (Cth); Re a Barrister and Solicitor (1972) 20 FLR 234 at 246; Johns v Law Society of NSW [1982] 2 NSWLR 1 at 10A.

15. In practice, however, that proposition does not always sit comfortably with judicial pronouncements (not, it seems, the subject of explicit High Court authority) to the effect that a legal practitioner the subject of disciplinary proceedings has a professional obligation to assist the Court or Tribunal hearing the proceedings in the conduct of its investigations: Re Veron; ex parte Law Society of NSW (1966) 84 WN (Pt 2) (NSW) 136 at 141-142; Johns v Law Society of NSW [1982] 2 NSWLR 1 at 6. That obligation is said to derive from a professional obligation of candour.

16. Whatever its foundations, the duty to assist the conduct of disciplinary proceedings does not extend to an obligation to give evidence on oath in answer to a charge of misconduct in respect of which no prima facie case has been established: Malfanti v Legal Profession Disciplinary Tribunal (1993) 4 LPDR 17 at 19, a case noted in (1993) 67 ALJ at 959.

Nevertheless, the duty of honesty and frankness (candour) on the part of a barrister under investigation extends to the investigative steps immediately anterior to the consideration of a case by the court or tribunal appointed for that purpose: NSW Bar Association v Thomas [No. 2] (1989) 18 NSWLR 193 at 206. Section 152 of the Legal Profession Act 1987 specifically reinforces a practitioner's duty to assist the investigation of a complaint when formally called upon to do so.

17. On both sides of the record in disciplinary proceedings care needs to be exercised in considering what witnesses (and, in particular, whether the practitioner) should be called.

In most cases the tribunal of fact will be anxious to have an opportunity to hear the practitioner's personal explanation of the charges against him or her. A practitioner who declines to give evidence may place himself or herself at a forensic disadvantage: Keppie v ACT Law Society (1983) 62 ACTR 9 at 20-21. In those circumstances, to put the point as it is sometimes formally expressed, it may be said that the practitioner's professional obligation of candour requires him or her to make a full and frank disclosure of the facts; he or she is not entitled, it is sometimes said, merely to stand mute or to put the ‘prosecutor’ to proof. That can involve anxious consideration of whether the practitioner should object to answering some, or all, questions on the ground that his or her answers may tend to be self-incriminatory. Although the taking of such an objection cannot properly found an adverse inference (as to which, see Heydon, Cross on Evidence (Australian edition) paragraph [25040] and (1991) 65 ALJ 412) a failure to offer a full explanation may have the same practical effect. There is sometimes, in practice, a play-off between exposure to criminal prosecution and remaining on the roll.

On the other hand, the ‘prosecution’ may be under an obligation to adduce evidence (which it regards as credible and which is necessary for there to be a fair determination of the proceedings) despite the fact that the evidence will be of assistance to the practitioner: NSW Bar Association v Kalaf (Court of Appeal, 11 October 1988, unreported) per Mahoney JA at pages 6-7. A prosecutor's common law duties are now reinforced by the NSW Barristers' Rules, rules 62-72, given that rule 15 defines ‘criminal proceedings’ to include disciplinary proceedings.

18. Care needs to be exercised on behalf of a practitioner to ensure that any explanation offered for his or her conduct is not false or misleading. That might, in itself, involve misconduct: Bridges v Law Society of NSW [1983] 2 NSWLR 361 at 367B; NSW Bar Association v Kalaf (Court of Appeal, 11 October 1988, unreported) per Mahoney JA at page 6; O'Reilly v Law Society of NSW (1988) 24 NSWLR 204 at 230.

19. In this context care needs to be taken to distinguish between cases in which the evidence of a practitioner is not accepted and those in which there is an affirmative finding that he or she has deliberately lied or sought to mislead the Tribunal of fact. A finding that the practitioner has deliberately given false evidence to a disciplinary tribunal must be based upon something more than a rejection of the practitioner's evidence. Allowance must be made for the possibility that the evidence was not deliberately false but rather, for example, the product of an honest difference of recollection, or opinion, or the witness's failure to appreciate the significance of questions put to him or her for response: O'Reilly v Law Society of NSW (1988) 24 NSWLR 204 at 230-231; Smith v NSW Bar Association (1992) 176 CLR 256 at 268, 271-275.

20. Whilst the civil, rather than the criminal, standard of proof applies in disciplinary proceedings, the degree of satisfaction for which the civil standard calls may vary according to the gravity of the fact to be proved; that is, the civil standard of proof (on the balance of probabilities) is subject to the observations of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362: Ex parte Attorney-General (Commonwealth); Re a Barrister and Solicitor (1972) 20 FLR 234 at 246; NSW Bar Association v Livesey [1982] 2 NSWLR 231 at 238 (reversed, at 151 CLR 289, on other grounds).

21. Where a court or tribunal exercising disciplinary jurisdiction has before it evidence of misconduct of such gravity that it, prima facie, would have required at the time it was committed an order that the practitioner concerned be struck off as ‘unfit to practise’ as a legal practitioner, the substance of the question for consideration when (after a substantial delay) disciplinary proceedings come for decision may not be dissimilar to the question arising upon an application for re-admission; namely, whether it appears that there is material before the court or tribunal to lead it to conclude that the past proved unfitness has been changed to fitness. The ultimate onus is on the party having carriage of the proceedings, but where there is admitted or patent professional misconduct and a claim of rehabilitation or of fitness replacing unfitness, the court or tribunal exercising jurisdiction will look to what evidence there is to establish this change and will expect the practitioner who claims there is such a change to point to the evidence that there is: Johns v Law Society of NSW [1982] 2 NSWLR 1 at 9-10.

22. Because of the public interest character of disciplinary proceedings, and the existence of a duty of candour which has an ethical (if not an unqualified legal) foundation and may involve serious professional or forensic consequences if it is breached, the astute conduct of the defence of a practitioner against allegations of misconduct will ordinarily:

Prolonged disciplinary hearings, in which a practitioner is compelled to come to terms with his or her professional obligations in the course of cross examination by the ‘prosecution’ or the bench, rarely assist the practitioner.

Some guidance on how to respond in the early stages of an investigation of a complaint by the Bar Association can be found in an article by Jeremy Gormly published in the ‘Spring/Summer’ 1994 issue of Bar News, a copy of which is attached to this paper.

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FINDINGS OF MISCONDUCT

23. One manifestation of the public interest character of disciplinary proceedings is that, because a judgment on a complaint of misconduct may have an operation beyond the determination of the particular complaint, a court or tribunal exercising disciplinary jurisdiction should make precise findings of primary fact about each complaint the subject of adjudication so that there is conveniently available a formal record as to the nature and quality of the character and conduct (including the state of mind) of the practitioner the subject of the judgment: Johns v Law Society of NSW [1982] 2 NSWLR 1 at 3-7; Bridges v Law Society of NSW [1983] 2 NSWLR 361 at 368E-F. If the court or tribunal has been unable for some reason sufficiently to investigate the circumstances underlying a complaint, it should say so expressly, and indicate whether (and, if so, to what extent) any order made by it has been affected by the limited nature of the evidence before it: Johns' Case [1982] 2 NSWLR 1 at 4G.

24. Primary findings of fact made in the determination of a complaint can have critical significance in the following contexts, if not otherwise:

25. The necessity for clear findings to be made in disciplinary proceedings means that, although such proceedings may (in a proper case) be conducted in an expeditious and abbreviated way, they cannot readily be determined by a compromise between the party having carriage, and the person the subject, of the proceedings. A court or tribunal exercising disciplinary jurisdiction has an obligation to ascertain, and to make a determination on, the facts underlying a complaint.

26. Where a court or tribunal has sufficient evidence before it to enable it unequivocally to justify a strike-off order it may simply make the order, incorporating in its record for future reference the evidence upon which the order was based: Re Demer (1966) 85 WN (Pt 1) (NSW) 49 at 52. What sometimes occurs in such cases, prudently, is that formal findings are made in terms of the particulars of complaint made against the practitioner and those particulars are justified by reference to the evidence filed in support of them.

27. Be that as it may, a legal practitioner has no absolute right at any time to have his or her name removed from the Roll of Practitioners at his or her own request: Re Leaver and the Legal Practitioners Act (1966) 83 WN (Pt 1) (NSW) 278. Disciplinary proceedings cannot, thus, be avoided. A complaint having been made, it must generally be dealt with on the merits even if a determination is facilitated by concessions properly made on one side of the record or the other.

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DEFINITIONS OF MISCONDUCT

28. The inherent jurisdiction of the Supreme Court to supervise legal practitioners who are officers of the Court is not constrained by formalistic definitions of what may constitute ‘misconduct’ sufficient to attract the Court's intervention: Re Guild (1979) 32 ACTR 13 at 29.

29. The position is otherwise with a statutory tribunal, the powers of which must be found in the statute constituting it: Datt v Law Society of NSW (1981) 148 CLR 319; Knaggs v Solicitors' Statutory Committee [No. 2] (1992) 27 NSWLR 603. The Legal Services Tribunal (the powers of which are defined, and limited, by the Legal Profession Act 1987) is such a body.

30. Although jurisdictional problems can still arise in the context, at least, of proceedings in the Tribunal (as illustrated by judgments of the Court of Appeal in Council of the Law Society of NSW v Nutt (1996) 1 LPDR 23 and Council of the NSW Bar Association v Stone (1996) 2 LPDR 25 concerning procedures for dealing with ‘complaints’), problems are less likely than in earlier times to focus on the meaning of the expression ‘professional misconduct’. This is because of the expansive, inclusive definitions of ‘professional misconduct’ and ‘unsatisfactory professional conduct’ which now lie at the heart of the Tribunal's jurisdiction. See Legal Profession Act 1987, section 127.

‘Professional misconduct’ is defined to include: (a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence; or (b) conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the Roll of Legal Practitioners; or (c) conduct that is declared to be professional misconduct by any provision of this Act. The reference to ‘statutory misconduct’ is primarily relevant to solicitors rather than barristers; sections 61(7) and 62(4) provide that a ‘wilful contravention’ of provisions of the Act dealing with trust accounts constitutes ‘professional misconduct’. Other provisions (such as section 183 dealing with a failure to provide an estimate of costs) provide that a failure to comply with the Act is ‘capable of being unsatisfactory professional conduct or professional misconduct’ but their operation appears to be primarily facilitative, rather than mandatory.

‘Unsatisfactory professional conduct’ is defined to include conduct (whether consisting of an act or omission) 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 legal practitioner.

31. These statutory definitions (because they are defined to ‘include’ certain conduct) are not inconsistent with the concept of ‘professional misconduct’ developed at common law.

32. The common law concept of ‘professional misconduct’ is relatively well settled. It derives ultimately from Allinson v General Council of Medical Education & Registration [1894] 1 QB 750. It has been applied to both barristers and solicitors. In its application to barristers it is formulated in the following terms: (as explained by Prothonotary of the Supreme Court of NSW v Costello [1984] 3 NSWLR 201 at 203): professional misconduct on the part of a barrister consists in behaviour on the part of the barrister which would reasonably be regarded as disgraceful and dishonourable by his or her professional brethren of good repute and competency.

Although the ‘Allinson’ formulation is not intended to be exhaustive (a fact noted in Costello at 207), and it does not directly address lesser forms of misconduct (now possibly caught by the statutory definition of ‘unsatisfactory professional conduct’), it tends to inform the approach of both the Supreme Court and Legal Services Tribunal to concepts of misconduct generally.

33. Personal misconduct, as distinct from professional misconduct, may provide a ground for disciplinary action against a legal practitioner, because it may show that he or she is not a fit and proper person to practise as such; but the whole approach of a court or tribunal to a case of personal misconduct may be different to its approach to a case of professional misconduct; generally speaking, the latter must have a much more direct bearing on the question of a person's fitness to practise than the former: Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at 290. Ultimately, the approach to such questions depends upon one's conception of the minimum standards demanded by due recognition of the peculiar position and functions of a practitioner (and, in the present context, more particularly, a barrister): Ziems' Case at 297-298. Recent examples of a practitioner being the subject of disciplinary action for conduct which was not undertaken, strictly, in the course of professional practise as such are NSW Bar Association v Thomas [No. 2] (1989) 18 NSWLR 193 (non-disclosure of a police informer) and Chamberlain v ACT Law Society (1993) 118 ALR 54 (taking advantage of an error by the Australian Tax Office).

34. Generally, a finding of misconduct requires that there be some personal default on the part of the practitioner the subject of the finding: Re a Solicitor [1960] VR 617 at 622; Re Guild (1979) 32 ACTR 13 at 33; Re Johnston (1979) 32 ACTR 37 at 39-40.

35. Nevertheless, a failure to supervise a clerk (or, quaere, a Reader) can amount to misconduct: Law Society v Foreman (1991) 24 NSWLR 238. If there is a duty to supervise another person, that duty must be fulfilled; feelings of delicacy about inter-personal relationships cannot, of themselves, provide a defence to a charge of misconduct: Re Mayes [1974] 1 NSWLR 19 at 25.

36. Not every breach of a statutory obligation will necessarily constitute misconduct or require disciplinary proceedings to be instituted: Johns v Law Society of NSW [1982] 2 NSWLR 1 at 22; Re Guild (1979) 32 ACTR 13 at 33. In the context of the NSW Barristers' Rules that observation is confirmed by section 57D(4) of the Legal Profession Act 1987 and, perhaps, rule 9 of the Rules.

37. Although misconduct may involve an isolated act or omission (as in Law Society of NSW v Foreman (1994) 34 NSWLR 408), a systematic course of conduct or a wilful breach of professional obligations is more likely to require, and to attract, an exercise of disciplinary jurisdiction. The frequency, as well as the nature and quality, of a practitioner's conduct will also have a direct bearing on the orders to be made following upon a finding of misconduct: Prothonotary v Costello [1984] 3 NSWLR 201.

Conduct is regarded as ‘wilful’ in this context if it is done intentionally to commit a breach of duty or with reckless indifference to whether or not the conduct is in breach of a duty: Re Hodgekiss (1959) 79 WN (NSW) 163 at 171-172.

38. Although such considerations may be relevant to questions of ‘penalty or proper order’ following upon a finding of misconduct, the fact that no loss may have been suffered by any person as a result of a practitioner's conduct cannot be used to excuse misconduct; the nature and quality of a practitioner's conduct must be assessed at the time it occurred: Law Society of NSW v Moulton [1981] 2 NSWLR 736 at 740C.

39. Acting in ignorance of the law may of itself, in some circumstances, constitute misconduct: Law Society of NSW v Moulton [1981] 2 NSWLR 736 at 757F.

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40. A court or tribunal exercising disciplinary jurisdiction is obliged to exercise its own judgment about the nature and quality of the conduct and character of a practitioner the subject of the proceedings. Although it may take into account views expressed by a practitioner's professional association, a subordinate disciplinary tribunal, members of the profession or members of the community generally it cannot abrogate its ‘personal’ obligation to make its own assessment.

41. Character evidence can play a determinative role in disciplinary proceedings, if only (as is usually the case) to endeavour to persuade the court or tribunal that a practitioner who has been guilty of misconduct can nevertheless be trusted to perform his or her professional obligations properly in the future.

42. Although character evidence might usefully draw on a range of referees, the most persuasive evidence is usually that which is adduced from the practitioner's peers of good repute and standing. They are uniquely placed to provide an evidentiary foundation for submissions on whether, and to what extent, a practitioner’s peers will continue, despite proven misconduct, to trust (and to deal with) him or her in a professional context; can and will the practitioner be relied upon to fulfil professional obligations?

43. For character evidence to be of any value it must be given with knowledge of the nature and quality of the subject's misconduct.

44. It is legitimate for a court or tribunal exercising disciplinary jurisdiction to consider whether a practitioner's misconduct is of such a character that it is inconsistent with the high opinion of the practitioner previously and otherwise held by his or her colleagues; however, character evidence which is given in ignorance or disregard of a practitioner's misconduct may be of little or no value: Re Nelson (1991) 106 ACTR 1 at 24.

45. A classic illustration of how a court can disregard character references if it so minded is found in Incorporated Law Institute of NSW v Meagher (1909) 9 CLR 655 at 677, where Griffith CJ said:

46. The preparation of character references is an important part of the preparation of a practitioner's defence in disciplinary proceedings. Care should be taken to ensure that that preparation is undertaken by a professional person other than the practitioner the subject of the proceedings; otherwise the practitioner may be cross examined as to the accuracy or otherwise of statements, or admissions, made by the practitioner to referees. In most cases (where references are prepared before findings of misconduct have been made), each referee should state in his or her reference, usually in the form of a statutory declaration, that he or she has read the originating process, particulars of complaint, the practitioner's reply and the principal declarations filed in support of, or in answer to, the complaint (including any declaration made by the practitioner personally); prudently, in order to minimise the possibility that a referee might have made such a statement without having given serious attention to that material, a copy of the particulars of complaint (however they may be described, in formal terms, in the proceedings) should be annexed to each referee's declaration. If the reference is given after findings of misconduct have been made it is probably sufficient for the referee to have read, and to refer to, the findings.

A practitioner the subject of disciplinary proceedings should avoid any suggestion that he or she has made misleading statements to potential character referees. Such a suggestion might, of itself, involve an element of misconduct; be that as it may, forensically it can substantially undermine the practitioner's credibility generally and, in particular, any expression of contrition or assurance of a present, proper understanding of professional obligations: see, for example, Re Dennis (Court of Appeal, 23 December 1988, unreported) per Samuels JA at pages 13-15.

47. If ‘character references’ are truly limited to expressions of opinion about a practitioner's character, a party having carriage of disciplinary proceedings not uncommonly decides not to cross examine the referees. However, each referee must be warned that he or she may be subject to cross examination.

48. Practitioners sometimes adduce as ‘character evidence’ evidence which goes beyond an expression of opinion about character and seeks to address the practitioner's general competency or the probabilities of where the truth may lie on disputed questions of fact; but it is usually best to confine ‘character evidence’ to just that. Otherwise, the party having carriage of the proceedings may be obliged to cross examine each referee (to the extent his or her statements are admissible) - with the attendant costs, inconvenience and risks of a prolonged hearing - and, in any event, the credibility or reliability of a referee may be affected if he or she appears to be a partisan of the subject practitioner. A simple, unadorned character declaration can often have a significant bearing on the outcome of a case if it tendered (with the practitioner's own personal declaration) in the early stages of proceedings, even if - or perhaps especially if - tendered with modest circumspection, not fanfare.

49. Occasionally, it may be appropriate (at least in relation to allegations of relatively minor misconduct) for a practitioner's case to be unsupported by character references. For the most part, however, they are an essential component of a practitioner's defence even if the court or tribunal called upon to have regard to them is dismissive of their influence.

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TYPES OF DISCIPLINARY ACTION

50. In the context of disciplinary proceedings, the fact that solicitors ordinarily do, or may, conduct a trust account can affect the course of proceedings against them as compared with the course of proceedings which might be expected where allegations are made against a barrister. The Law Society may, for example, appoint an investigator under section 55 of the Legal Profession Act 1987, or apply to the court under section 92 for the appointment of a receiver of trust property, or (under section 114B) appoint a manager of the solicitor's practice; and allowance must be made for the possibility, or actuality, of claims made (under section 80) against the Solicitors' Fidelity Fund.

Solicitors the subject of disciplinary concerns are not uncommonly the subject of a section 55 investigation, followed by an expression of opinion by the Council of the Law Society that there has, or may have been, a ‘failure to account’, and a resolution (referrable to sections 37, 38 or 38A) for cancellation of the solicitor's Practising Certificate, designed to provide the jurisdictional foundation for appointment of a receiver (under section 92) or the appointment of a manager (under section 114B). Not uncommonly, then, the solicitor may appeal to the Supreme Court (under section 38B) against the cancellation of his or her Practising Certificate, and one or more reports may be obtained from an investigator or receiver, before proceedings are commenced (under Pt 10 of the Act) in the Legal Services Tribunal.

51. In relation to barristers (in respect of whom, consistently with section 38P, problems about trust moneys do not ordinarily arise) the usual course of disciplinary proceedings is to be found in Pt 10, commencing with a complaint by a lay person (section 134), the Bar Council (section 135) or the Legal Services Commissioner (section 136). Not uncommonly, a lay complaint is referred by the Commissioner (under section 142) for investigation by the Bar Council (pursuant to section 184) under the supervision of the Commissioner (as provided in sections 147A, 149, 150 and 151). Such investigations are generally delegated by Bar Council to the Bar Association's Professional Conduct Committees: section 157. For the purpose of investigating a complaint the Bar Council or Commissioner may require the barrister against whom the complaint is made to provide information or to produce documents, and to verify any such information by statutory declaration: section 152. After the completion of an investigation a decision must be made (in accordance with section 155) about whether proceedings should, or must, be instituted in the Legal Services Tribunal. A decision by the Bar Council is open to review by the Commissioner: section 158-161.

The conduct of hearings in the Legal Services Tribunal is governed principally by sections 167-171E. Section 170 governs whether (as is customary in cases of alleged professional misconduct, but not in cases including only allegations of unsatisfactory professional conduct) proceedings in the Tribunal are conducted in public).

There is an appeal from the Tribunal to the Supreme Court: section 171F. Between January 1988 and March 1996 the Legal Profession Act provided for a ‘de novo’ hearing on appeal, the practice in respect of which was sometimes to have (subject to review by the Court of Appeal constituted by three Judges of Appeal), a fresh trial before a single judge - in the course of which the parties were encouraged to agree to the transcript of proceedings in the Tribunal being tendered, together with supplementary evidence: Sedgewick v Law Society of NSW (1994) 3 LPDR 26 at 26-28. Since March 1996, when section 171F(4) of the Act was repealed, an appeal has been governed (as it was before 1988) by the Supreme Court Act 1970, section 75A. Fresh evidence can now be adduced on appeal only in special circumstances, as is the case in appeals to the Court of Appeal generally.

52. Although a barrister is entitled to have the Bar Council (or Commissioner) undertake an investigation as contemplated by Pt 10, it should not be assumed that Pt 10 is predicated upon the barrister having a legal entitlement to be heard at each (or any) stage of the investigation. It may be that the requirements of procedural fairness (contemplated by section 125) may be met by the barrister having that opportunity in the Legal Services Tribunal: see Dennis v Law Society of NSW (Court of Appeal, 17 December 1979, unreported) per Moffitt P at pages 5-6, 8-15; Commissioner of Police v Reid (1989) 16 NSWLR 453 at 461; Finch v Grieve (James J, 3 July 1991, unreported) page 35 et seq; Cornall v A B (A Solicitor) [1995] VR 372. Be that as it may, in most cases the practice of Bar Council is to provide barristers with an opportunity (or require them under section 152) to make a written response to a complaint under investigation.

53. In the conduct of disciplinary proceedings a barrister is entitled to be afforded procedural fairness, including proper notice of the allegations of misconduct which he or she is required to meet: Smith v NSW Bar Association (1992) 176 CLR 256. Even though the Legal Services Tribunal is bound to observe the rules of evidence only for the purpose of conducting a hearing into a question of professional misconduct, and not for the purpose of conducting any other hearing (such as a hearing into a question of unsatisfactory professional conduct alone) by virtue of section 168 of the Legal Profession Act 1987, due regard to principles of procedural fairness may of itself require that rules of evidence be observed: Law Society of NSW v Weaver [1977] 1 NSWLR 67 at 74E-F.

54. Disciplinary proceedings against barristers are not commonly coupled with a decision by Bar Council to cancel or suspend a barrister's Practising Certificate. The Council's powers in relation to Practising Certificates are generally used to regulate conditions of practice (or to underpin the Bar Association's education programs), not as a means of obtaining a forum for consideration of substantive questions about misconduct; such questions are normally determined in the Legal Services Tribunal or, in a special case, on an application invoking the Supreme Court's inherent, supervisory jurisdiction.

55. Still, the importance and role of Practising Certificates should not be overlooked. A practitioner who purports to practise, or to hold himself or herself out as entitled to practise, without being the holder of a Practising Certificate or in breach of conditions to which his or her Practising Certificate is subject may, by that fact alone, be guilty of professional misconduct( Mee Ling v Law Society [1974] 1 NSWLR 490 at 498D, 499G-500A) and a criminal offence: Legal Profession Act 1987, sections 25, 48B, 48C. As was held in Mee Ling, the issue of an annual Practising Certificate is not a mere formality, nor is it only a device for raising revenue; the legislative scheme [now embodied in the Legal Profession Act] makes it clear that protection of the public is involved.

56. A decision of the Bar Council (going beyond, rather than giving effect to, a decision of the Legal Services Tribunal) affecting a barrister's Practising Certificate is subject to appeal to the Supreme Court pursuant to section 38B of the Legal Profession Act 1987. The lodging of an appeal does not stay the effect of the decision appealed against: section 38B(3). The Court is, however, empowered under section 38B(2) to ‘make such order in the matter as it thinks fit’.

In the appeal proceedings (which involve an exercise by the Court of original rather than appellate jurisdiction as such) the Court undertakes a hearing de novo and, as an incident of the appeal, it may stay the Bar Council's decision or grant a Practising Certificate pending determination of the appeal: Veghelyi v Council of the Law Society of NSW (1989) 17 NSWLR 669 at 673-675, 676D-G, referred to with approval in Knaggs v Solicitors Statutory Committee [No. 2] (1992) 27 NSWLR 603 at 614A.

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PROTECTIVE ETHICS RULINGS

57. One of the functions performed by the Bar Association in the public interest, through its Ethics Committees, is to provide a facility through which barristers can seek and obtain guidance in the form of ‘rulings’ on particular ethical questions which have arisen, or may arise, in the course of practice.

58. In the context of disciplinary proceedings such rulings can have a beneficial effect for a barrister who has acted in accordance with a ruling. A positive, but erroneous, advice from the Bar Association may constitute a defence to a charge of misconduct: Law Society of NSW v Moulton [1981] 2 NSWLR 736 at 757B-C. Section 38G(2) of the Legal Profession Act 1987 is unlikely to affect that; it appears to be directed to what might be thought to be ‘restrictive trade practices’ and does not have regard to the ‘peer group’ assessment generally involved in findings of misconduct.

59. Such a defence might be available where a barrister acts in accordance with views formally expressed by the Bar Association generally, not limited to a ‘ruling’; but it is most likely to arise in the context of a specific ruling.

60. For a Bar Association ‘ruling’ to operate as a defence it must have been based on all material facts and the barrister who invokes it must have acted in accordance with it. In a practical sense, this should serve as a reminder to all concerned that a barrister seeking a ruling must ensure that the person, or persons, giving it are fully informed about the circumstances in which it is required and the course of conduct proposed to be undertaken in reliance upon it. Otherwise there is a possibility, not only that the ruling may not operate as a defence, but also (perhaps only in extraordinary circumstances) an attempt to obtain a ruling on the basis of an incomplete or incorrect statement of the facts could itself attract criticism.

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THE OPERATION OF ‘THE BAR RULES’

61. Leaving aside the statutory force given to the New South Wales Barristers' Rules by section 57D (reinforced by section 38G) of the Legal Profession Act 1987, the classic statement of the nature of a barrister's obligations as a barrister, in the context of rules (conventional or fundamental) affecting professional conduct, is to be found in Clyne v NSW Bar Association (1960) 104 CLR 186 at 199-200. That statement is to the following effect:

62. Those observations, particularly in the context of observations in Ziems v Prothonotary of Supreme Court of NSW (1957) 97 CLR 279 at 297-298 about the maintenance of professional standards, still underlie the disciplinary jurisdiction.

63. It is, however, necessary now to bear in mind section 57D(4), which is to the effect that, although failure to comply with the Barristers' Rules does not of itself amount to a breach of the Legal Profession Act 1987, a failure to comply is capable of being professional misconduct or unsatisfactory professional conduct. Much depends, of course, on the facts of the particular case. Nevertheless, the fact that the Rules have legislative force and are said to be ‘binding’ may have a bearing on whether they are treated more like ‘fundamental’ (rather than merely ‘conventional’) rules of old. A barrister who wilfully disregards them does so at his or her peril.