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1 C. A. T. Reporting Services (Computer Assisted Transcripts) Specialising in verbatim reporting of* daily transcript real time depositions arbitrations hard copy & disk LEGAL SERVICES TRIBUNAL MATTER NO 5 OF 1997 GLENN GOULD BEFORE: Mr P Capelin QC (Chairman) Mr P Menzies QC Ms A Mara JUDGMENT Level 8, University Chambers, 167 Phillip Street, Sydney 2000 Telephone: (02) Facsimile: (02)

2 CHAIRMAN: The informant the New South Wales Bar Association has brought a complaint that a barrister Glenn Gould (hereinafter referred to as "the barrister") is guilty of professional misconduct-and or unsatisfactory professional conduct. The complaint is set out in an an amended information as follows: GROUNDS OF COMPLAINT: 1. Inappropriate acceptance or retention of a brief. 2. Inappropriate return of a brief. 3. Misleading conduct. 4. Misleading or attempting to mislead the Council of the NSW Bar Association. PARTICULARS: Ground 1 - Inappropriate Acceptance or Retention of a Brief. 1. The barrister appeared in proceedings entitled Stapleton v Carpenter in the Manly Local Court on 10 May 1996 ("the AVO Proceedings"). On that day the AVO proceedings were adjourned part heard for further hearing to 15 July On 22 May 1996 the barrister accepted a brief in the matter of Fullerton v Zingarelli in the Family Court of Australia ("the Family Court proceedings"). Between 12 June 1996 and 18 June 1996, the barrister was informed that the Family Court proceedings were fixed for hearing on 15, 16 and 17 July Having regard to the existence of the AVO proceedings for hearing on 15 July 1996, it was inappropriate for the barrister to have accepted or retained the brief to appear in the Family Court proceedings on 15, 16 and 17 July Ground 2 - Inappropriate Return of a Brief 1. On 12 July 1996 at about 8.30 am the barrister informed his instructing solicitor in the AVO proceedings that he would not appear in those proceedings on 15 July 1996.

3 2. It was the barrister's obligation to continue to appear in the AVO proceedings unless he obtained the permission of his instructing solicitor to return the brief. Such permission could only be obtained by the barrister after: (a) (b) He had clearly informed his instructing solicitor of the circumstances in which he wished to return the brief; He had informed his instructing solicitor of the terms of Rules 95 and 97 of the Bar Rules. 3. The barrister did not clearly inform his instructing solicitor of the circumstances in which he wished to return the brief, nor did he inform his instructing solicitor of the provisions of Rules 95 and ^Additionally, having regard to the nature of the AVO proceedings, including the fact that they.were part heard, and the lateness of the point in time when the barrister indicated that he would not appear in them, the return of the brief was inappropriate. Ground 3 - Misleading Conduct 1. At no time prior to 12 July 1996 did the barrister inform his instructing solicitor in the AVO proceedings that where was a real or any possibility that he may be unable to appear. At all times prior to 8.30 am on 12 July 1996 the barrister held himself out as being available to appear on 15 July 1996 in the AVO proceedings. 2. On the afternoon of 11 July 1996 the barrister held a conference in his Chambers at which the client in the AVO proceedings, Ms Stapleton, attended and for part of which-his instructing solicitor attended. The purpose of the conference was to ensure the proceedings were properly prepared for the next hearing day. At no time did the barrister inform his client or instructing solicitor during that conference that he may be unavailable to appear in the AVO proceedings. He held himself out at all times as intending to, and being available to appear. 3. At no time did the barrister inform his instructing solicitor in the Family Court proceedings that there was a real or any possibility that he would

4 be unable to appear in those proceedings, at least on 15 July At all times up to 8.30 am on 12 July 1996, the barrister conducted himself and held himself out as being able to appear in both the AVO proceedings and in the Family Court proceedings, when the proceedings coincided and he was unable to appear in both of them on 15 July The barrister, knowing of the true position failed to reveal it to either of his instructing solicitors or clients until about 8.30 am on 12 July Ground 4 - Misleading or Attempting to Mislead the Council of the NSW Bar Association 1. By letter dated 5 August 1996, the Bar Council informed the barrister that it had initiated and was investigating a complaint against him. 2. In the course of correspondence between the.council and the barrister, the Council requested -and the barrister provided answers to a number of questions which included the following: (i) Letter Council to barrister dated 5 August 1996: "10. Did you comply with the requirements of Rule 95 when seeking the consent of your instructing solicitor to return the brief in the AVO matter?" (ii) Letter barrister to Council dated 23 August 1996: '10. Yes.' (iii) Letter Council to barrister dated 30 August 1996 M. Please set out the facts and circumstances in which you say you complied with requirements of Rule 95, including the date of that conversation and full details thereof. (iv) Letter barrister to Council dated 27 September 1996: X 4. On 12 July 1996 I told Mr Ashton of the difficulty I then faced. We discussed the subject matter with which Rule 97 deals, namely whether other counsel would have the opportunity to take over

5 the case. He agreed, knowing Mr Maiden, that such an opportunity did exist, particularly in the light of the fact that the client had in her possession a tape recording of the first day's proceedings At all times, the barrister had not and knew that he had not, complied with Rule 95 properly or at all. To assert and maintain in the correspondence set out above that he had done so was conduct which was misleading of the Council or conduct by which the barrister intended to mislead the Council." In his amended reply the barrister stated in answer to the particulars contained in the amended information as follows: "A. Ground 1 - Inappropriate Acceptance or Retention of a Brief - Particular 1. Admitted. 2. The barrister accepted a brief in the matter of Fullerton v Zinaarelli on or about 22 May The barrister was advising and acting in respect of interim applications. For a time the brief was held by a Mr S. Stewart. This matter was listed urgently due to the barrister's client's intention to move to North Queensland with the children, and the issues of existing orders, their variation or vacation and other incidents of the wife's proposed removal required three hearing days. It is admitted that the barrister was informed approximately one month before the hearing date of the days fixed for that matter. 3. The barrister concedes that one of the briefs should have been returned prior to 12 July 1996 but does not admit that the Fullerton v Zinaarelli brief should have been returned as soon as the listing or hearing dates were made known. B. Ground 2 - Inappropriate Return of a Brief Particular 1. Admitted.

6 The barrister also says that he had prior appointment with the attorney instructing him in Stapleton v Carpenter appointed for the morning of 12 July In this~discussion the problems concerning listings for 15 July 1996 were discussed and explained and the solicitor agreed to approach another barrister for the hearing. 2. Admitted. 3. The barrister admits he did not explain the requirements of rule 95 and the terms of rule 97 to the solicitor during the discussion on 12 July The barrister concedes that the brief for the AVO should have been the subject of discussion and returned prior to 12 July 1996 but says that the remaining work was capable of assessment and preparation by competent counsel assisted by the tape of the initial days hearing. Cross examination was not in abeyance and the ambit of the dispute between the parties was narrow - i.e. two incidents in which no physical violence was alleged. C. Ground 3 - Misleading Conduct 1. The barrister admits particulars 1-4 as pleaded. Misleading conduct is denied. It is submitted that to be misleading there needed to be an element of intent which was not present in the barrister's conduct. The failure to realise earlier the conflict was due to unexpected pressure of work in the period leading to 11 July 1996 and personal and domestic difficulties which distracted the barrister. D. Ground 4 - Misleading or Attempting to Mislead the Council of the New South Wales Bar Association. 1. The barrister admits particulars 1 and The barrister denies particular 3, and in

7 E. Generally particular denies that he-misled the Council or intended to mislead the Council of the New South Wales Bar Association. 1. The barrister concedes- and admits that the return of the brief in Stapleton v Carpenter should have occurred prior to 12 July The barrister concedes that this failure amounts to a lack of diligence sufficient to establish a breach of section 127(2) of the Legal Profession Act. 3. The barrister notes that the attorney instructing in Stapleton v Carpenter arranged for Mr Peter Maiden of counsel to take the brief, that the client was not charged for the conference on 11 July 1996 by the barrister, and that the further hearing in the Manly Local Court led to a successful result for the client. 4. The barrister notes that according to Ms Helen Barrett of the Bar Association, the father of the client in Stapleton v Carpenter telephoned her after the hearing on 15 July 1996 and advised her that his faith in the legal profession had been restored." The Council requests the making of the following orders: 1. A finding that the legal practitioner is guilty of professional misconduct and/or unsatisfactory professional conduct; 2. Such orders as to the Tribunal seem fit pursuant to Section 171C(1)(b)-(i); 3. That the legal practitioner pay the Council's costs of these proceedings on a solicitor and client basis. The complaint arose out of circumstances which broadly are not in issue, namely, that the barrister finding himself with two commitments on the one day, one of which was part heard, returned the part heard brief only on the Friday morning preceding the Monday upon which

8 both matters were to be heard. This conduct in the particular circumstances was asserted to be in breach of Bar Rule 95. The following brief chronology illustrates the issues ' in the case. 10 May the barrister appeared in proceedings entitled Stapleton v Carpenter at Manly Local Court. The proceedings were an application by his client, Ms Stapleton, for an apprehended violence order (AVO) against Mr Carpenter. On this hearing the complainant gave evidence and was cross-examined and the matter was adjourned part-"heard to 15 July 1996 at Manly Court. It was anticipated that on that day Mr Carpenter would give evidence and be cross-examined. 22 May a brief in a Family Law matter of Fullerton v Zincrarelli was delivered by different solicitors to those who briefed the barrister in the AVO matter, this brief referring to a Family Court matter in which there were to be interlocutory proceedings and a date set for hearing in the Family Court. 12 June Fullerton v Zincrarelli was mentioned in the Family Court and Laurie J fixed a hearing date for 15 July Mr Stewart, counsel, appeared on 12 June when the date was fixed. He subsequently returned the brief to the barrister who, it was conceded as early as 18 June 1996, was well aware that the Family Law matter of Fullerton v Zincrarelli would be heard on 15 July and

9 probably the two days following. From 18 June 1996 to 11 July 1996 it appears that very little was done in either matter. Both cases were written in the barrister's diary for 15 July July during the late afternoon the barrister conferred with Ms Stapleton and her father from about 4 pm to 5.30 pm when they were joined by Mr Ashton, the instructing solicitor in the AVO matter. The part heard AVO matter to be resumed on the following Monday was the subject of the conference. The barrister did not inform anyone at the conference of his other committment in the Family Law Court on the following Monday. The conference in the part heard matter proceeded on the basis that the barrister would be appearing for Ms Stapleton at the resumed hearing. The circumstances of this conference were the subject of cross-examination of the barrister in the hearing before the Tribunal and the matter was canvassed in full as set out on pages 70, 71, 72 of the transcript. The effect of this evidence is that the barrister not only did not mention the fact that he, in all probability, would not be appearing in the AVO matter on the following Monday but that the clients were led to believe that he would so appear, and that during the two hours he spent with them discussion took place about the proposed resumed hearing on the following Monday. At the conclusion of the conference the barrister

10 made an appointment for time and place at Manly Court for the parties to meet him on the following Monday. asked whether he had "Full intentions to be there"? When answered "No, Mr Chairman, I haven't said that, I had formed, I hadn't addressed it at all. questions on this topic as follows: He answered 11 Q. You didn't know whether you were going to be there or not? A. In the back of my mind I knew there was a difficulty that would have to be addressed. I had been putting it off. It had been overlooked for a time and then been put off, it just wasn't addressed until the Friday.,Q. Do you think it might have been fair to take - them into your confidence and to tell them that there was a difficulty. A. If I had been thinking straight I would have dealt with it earlier than that. Yes at least at that time that was the appropriate thing to do, had I been thinking clearly about the dilemma clearly the solicitor should have been given as much notice as he could be. Clearly the Thursday would be better than the following morning, had I applied my mind to it. In practical terms I am not sure he could have got any counsel between 6 o-clock and He may well have been able to get counsel, I don't know. I didn't deal with it. MR MENZIES: I can understand a situation, I can understanding many situations, one I can understand is that you open up your diary on Friday morning, you look at the next week and you say to yourself: Oh my God I am double booked." But that is not what you say occurred. You say that, as I understand it, correct me if I am wrong, even as you had the conference on the Thursday afternoon you had in the back of your mind that there was a difficulty which had to be resolved, is that right? A. That is so. Q. What was the difficulty that you had to have resolved? A. The difficulty was that I wasn't going to be able to appear in two places at the same time in He 10

11 the following week. Q. Surely what you would have done at the very latest at that conference on the Thursday afternoon was to say to your nervy client with her extreme personality father: "I do not think I can do your case on Monday morning", isn't that right? A. If I had intended that at the time I would have said it. Q. What I am struggling with is, how you can say consistently there was something in the back of my mind that something being I can't be somewhere on Monday morning, at the time when you are speaking to the very people for whom you may have to appear on Monday morning and say nothing to them about it? A. I understand what you are saying. Q. It is awfully difficult? f±. It must be awfully difficult for outsiders -to understand. It was a question of getting through one day at a time. Sometimes I was suffering a great deal of stress. Tomorrow's difficulties could be left perhaps until tomorrow at that stage. I am not saying it is the right or wrong thing. I am trying to put in context what appears to be very odd. I would have a conference, not mention it, and suddenly the next morning it is raised." 12 July At about 8.30 am the barrister informed Mr Ashton the instructing solicitor in the AVO matter that he was briefed on the following Monday to appear in the Family Court as well as at Manly in the AVO matter. another matter. Mr Ashton happened to be with him conferring in It is the finding of the Tribunal that in that conversation with Mr Ashton the barrister for the first time told him of his commitment in the Family Law Court on the following Monday and gave Mr Ashton little or no option but to accept that the barrister would not resume 11

12 his role in the part heard matter and would be attending to the Family Court matter, which was a proposed three day hearing. The solicitor set about immediately obtaining replacement counsel for the AVO matter. In the events that followed, the proceedings in the Local Court were taken over by Mr Maiden, of counsel, who expressed the opinion before the Tribunal that, by the time the part heard matter in the Local Court resumed on Monday 15 July, he was "up to speed". This had involved Mr Maiden conferring with Ms Stapleton and the solicitor on the Friday afternoon, he had arranged for her to transcribe a tape of the part heard matter, which she had in her possession and for him to work on the matter on the Saturday and on the Sunday and to have a further conference with the clients on the Sunday and to appear on Monday at Manly Court. Ms Stapleton, for whom Mr Maiden appeared, obtained the order which she sought and shortly afterwards her father, who had on the Friday afternoon reported a complaint against the barrister to the New South Wales Bar Association, then informed the New South Wales Bar Association that his confidence in the legal profession had been restored. There was no evidence that Ms Stapleton was in any way prejudiced by the way in which Mr Maiden prepared and conducted her case. There was no indication that the client in the Family Court matter had been disadvantaged. 12

13 The Bar Association's evidence consisted of a folder entitled: "Statement of agreed facts and documents tendered by agreement" and a statutory declaration of Peter George Maiden, the barrister who had appeared for Ms Stapleton in the AVO hearing. Tribunal and was cross-examined. He gave evidence to the The barrister relied on his own statutory declaration, supplemented by oral evidence which he gave and a number of other declarations of character from a Judge, a medical practitioner and other members of the legal profession, both barristers and solicitors. These declarations attested to the barrister's good character and high professional and ethical standards and his prior competent and honourable conduct as a barrister. During the course of the hearing, senior counsel for the barrister was asked as to whether he took issue with some of the statements of fact in the folder "Statement of agreed facts and documents tendered by agreement" and he was asked whether it was intended that the statements of fact in those documents were to be evidence of the facts asserted and, further, whether it was intended to require any of the makers of those statements to attend for cross-examination. Senior counsel for the barrister responded: "May I answer Mr Menzies' question before lunch by saying that there is no question that Mr Ashton's letter is in evidence in accordance with the Evidence Act, and the understanding it is there as evidence of its contents. It is no more or less in that circumstance than is that it were 13

14 a statutory declaration and we have no desire to cross-examine Mr Ashton on it. That is the position." The Statement of Agreed Facts deals with the meeting between Mr Gould and Mr Ashton; "At about 8.30 am on Friday, 12 July 1996 the barrister conferred with his instructing attorney in the AVO proceedings, before commencing a conference in an unrelated matter where he was instructed by the same attorney. The barrister advised his instructing attorney that he would be unable to appear in the AVO proceedings on Monday, 15 July 1996." Mr Ashton 7 s version of those events is contained in his letter to the Bar Council of 12 September t"the writer attended a conference with our client -and Mr Gould at approximately 8.30 am on that date. Prior to that conference commencing, Mr Gould informed the writer to the effect that he was jammed on the following Monday, as he had a Family Court matter in which he was briefed, and would therefore be unable to appear in the Stapleton matter the following morning." Mr Maiden deposed to a conversation which took place between the barrister and himself before and during lunch on Friday, 12 July: "Just before or during lunch on Friday 12 July 1996 I spoke to Mr Gould by telelphone. In our conversation I said to him words to the effect: You are part heard in an AVO matter at Manly on Monday. What do you have on Monday? Gould said words to the effect: I have a 3 day family law matter which I have been in for some time and the client is coming from Hong Kong. I will be conferring with the client on the weekend. I said words to the effect: In my view you are part heard in a criminal matter and you should finish it. What I 14

15 suggest you do is complete the part heard matter and I will commence the family law matter by reading the affidavits and hold it until you get there. Gould said words to the effect : I'm staying with the family law matter. This was followed by conversation concerning the need to get a ruling." In the hearing before the Tribunal the barrister put Mr Ashton's account into issue. "Q. So it is clear, isn't it - well, you tell me. Is it clear that when he arrived on the Friday morning to have the conference in the Dooley matter, you told him that you would not be doing the AVO matter on Monday" A. That is not quite so, no." Q. Well, what did you tell him? A. I told him that I was in difficulty on the Monday, that I had two cases. He then said: "You've got yourself into a jam." I said: "Peter, in effect I would like to be released from this matter", and he then said: "Well, I'll go and make a phone call." It was all over in a very short space of time I guess because Mr Dooley was..." The members of the Tribunal raised directly with the barrister their concerns about this conflict of evidence, Menzies QC inquiring as to whether or not there was any desire by him or his representatives to have Mr Ashton called to be cross-examined. The matter was again directly raised by the Chairman and, although the barrister's counsel declined the invitation for Mr Ashton's evidence to be tested by cross-examination, he persisted in taking issue with Mr Ashton's evidence, despite the fact that it was contained in the documents tendered by agreement and paraphrased in the Agreed 15

16 Statement of Facts. The Tribunal deals with the grounds of complaint separately. 1. Inappropriate acceptance or retention of a brief. The Tribunal considers that the barrister was committed after the first day of hearing of the AVO matter to continuing in that matter in the absence of exceptional circumstances which would entitle him not to do so. The Tribunal finds that after the Family Law matter was set down for hearing on 12 June and he was notified by 18 June that that matter clashed with his commitment to < appear in the AVO matter, that it was inappropriate for him to accept the Family Law brief. In his amended reply the barrister admits that he appeared in the AVO proceedings and that he accepted a brief in the Family Court proceedings. He disputed that it was inappropriate for him to have accepted or retained the brief to appear in the Family Court proceedings on 15, 16 and 17 July In the opinion of the Tribunal, in the circumstances of the case, it was clearly inappropriate for the barrister to have accepted or retained the brief in the Family Court proceedings and that while he may have been entitled to wait a short time to consider his position it was certainly totally wrong for him to allow both briefs to remain with him from 18 June 1996 until 12 July The rules of the New South Wales Bar Association 16

17 which are relevant to the barristers conduct are rules 95 and 97 which are as follows: "95. A barrister must not return a brief to appear in order to accept another brief to appear unless the instructing solicitor or the client, as the case may be, in the first brief has permitted the barrister to do so beforehand, after the barrister has clearly informed the instructing solicitor or the client, as the case may be, of the circumstances in which the barrister wishes to return the brief and of the terms of this Rule and Rule 97." "97. A barrister who wishes to return a brief which the barrister is permitted to return must do so in enough time to give another legal practitioner a proper opportunity to take over the case." «The barrister concedes that the return of the brief in the AVO matter should have occurred prior to 12 July 1996 and that his failure to do so amounts to a lack of diligence sufficient to establish a breach of section 127 (2) of the Legal Profession Act. The Tribunal is of the opinion that in the absence of some special circumstances the barrister had no right to return the brief in the AVO matter but that he was committed to it as he was part heard in the hearing and there was no reason why he should not continue the matter to its conclusion. The Tribunal takes a very serious view of the circumstances in which he accepted and committed himself to appear on the Family Law brief when he knew, or ought to have known, that he was committed to a part heard matter on the first day of the hearing, 15 July

18 2. Inappropriate return of a brief. The circumstances of the return of the brief in the AVO matter are referred to above and documented in the transcript in the cross-examination of the barrister, pages 68 to 74 of the transcript. The Tribunal finds that the circumstances surrounding the return of the brief to Mr Ashton and the conduct of the barrister associated therewith fell far short of the standards expected of a barrister. He gave Mr Ashton no option but to obtain other counsel at short notice and indeed the barrister attempted to indicate to the Tribunal that Mr Ashton permitted him to return the brief in circumstances where Mr Ashton denies that this was so, and the Tribunal finds he had no alternative but to seek other counsel because the return of the brief was put to him as a fait accompli. The Tribunal finds that the barrister was evasive in his answers on this topic and left the Tribunal with some doubt as to his acceptance of the wrongfulness of his conduct and his contrition as a result thereof. 3. Misleading conduct. The barrister, as particularised, at no time prior to 12 July 1996 informed his instructing solicitor in the AVO proceedings that there was a real, or any, possibility that he may be unable to appear. At all times prior to 8.30 am on 12 July 1996 the barrister held himself out as being available to appear on the 15th in the AVO 18

19 proceedings. On the afternoon of 11 July 1996 the Tribunal finds that the barrister held a conference in his chambers with Ms Stapleton and her father and that the discussion which took place was a full conference in relation to the continuation of the AVO proceedings on the following Monday and the purpose of the conference was to see that the parties and the barrister were fully prepared for the hearing. During that conference the barrister held himself out as being ready, willing and able to continue as counsel in the AVO proceedings and misled his solicitor and the client about his availability to appear. It was not until the morning of 12 July that the barrister first raised with anybody that he would be unable to appear in the AVO proceedings. He had never at any time indicated to the solicitors who briefed him in the Family Law matter that there was any problem about a clash of dates. The conduct of the barrister in so misleading his client and his solicitors is unacceptable, the Tribunal finds that it was disgraceful. During the morning of 12 July Mr Ashton sought to get other counsel and obtained the services of Mr Maiden. Mr Maiden deposed to the conversation which took place between the barrister and himself during lunch on Friday 12 July, such conversation is set out above. The Tribunal finds that by the time the barrister spoke to Mr Maiden his decision to remain in the second matter had been firmly 19

20 made. What he sought to do thereafter was to seek a ruling from the Bar Association in order to justify the position he had taken. The barrister's submissions state: "It is probably worth emphasising that the root of all the problems was that the barrister retained both briefs for the one day too long. The subsequent problems all flowed from that." If that submission was to be taken literally, then it would reveal an insouciant attitude, reflected in the barrister's declaration: "In my experience, the late passing of briefs, is a relatively common occurrence in the Family Law ^and related jurisdictions because of the propensity for matters to settle and until late 1996, indefinite listing procedures in the Family Court. It is not my normal practice to double book matters." The practice of passing briefs as a matter of barristers 7 choice is deplored by this tribunal. The practice ignores the rights of the client, the rules of the Bar and the convenience and interest of the solicitors. The method by which the barrister dealt with his clients and his instructing solicitor on the Thursday and Friday before the adjourned hearing fell far short of the standards expected of a barrister. 4. Misleading or attempting to mislead the Council of the New South Wales Bar Association. By letter dated 5 August 1996 the Bar Council informed the barrister that it had initiated and was 20

21 investigating a complaint against him. In the course of correspondence between the Council and the barrister the Council requested and the barrister provided answers to a number of questions which included the following: 11 (i) Letter Council to barrister dated 5 August 1996: "10. Did you comply with the requirements of Rule 95 when seeking the consent of your instructing solicitor to return the brief in the AVO matter? " (ii) Letter barrister to Council dated 23 August "10. Yes". (iii) Letter Council to barrister dated 30 August "4. Please set out of the facts and circumstances in which you say you complied with requirements of Rule 95, including the date of that conversation and full details thereof". (iv) Letter barrister to Council dated 27 September "4. On 12 July 1996 I told Mr Ashton of the difficulty I then faced. We discussed the subject matters with which Rule 97 deals, namely, whether other counsel would have the opportunity to take over the case. He agreed, knowing Mr Maiden, that such an opportunity did exist, particularly in the light of the fact that the client had in her possession a tape recording of the first day's proceedings". The Tribunal heard the cross-examination of the barrister on this aspect and is very conscious of the serious nature of a complaint which alleges that the barrister misled the Council of the New South Wales Bar 21

22 Association. The fact is when the difficulties were discussed on the Friday morning it was unknown who the replacement barrister would be or if anyone was available. The Tribunal is aware of the high standard of proof that is required to be satisfied to support a positive finding of misleading the Bar Association. In all the circumstances the Tribunal is of the view that the barrister was not as open with the Association as he ought to have been and that, in fact, he attempted to mislead it. His conduct in this respect fell short of that which is expected of a member of the Bar. The Bar Association in its written submissions submitted that the Tribunal ought to find that the barrister was guilty of professional misconduct. It submitted that the appropriate test for determining whether a barrister has been guilty of professional misconduct is set out in Prothonotarv of the Supreme Court of New South Wales v Costello. The submissions continued: "The test of professional misconduct was originally formulated in relation to medical practitioners in Allinson v General Council of Medical Education and Registration (1984) 1QB 750. It was there ruled that professional misconduct consisted in behaviour on the part of the practitioner which would reasonably be regarded as disgraceful and dishonourable by his professional brethren of good repute and competency. This criterion has been applied in determining whether a solicitor has been guilty of professional misconduct... We do not doubt that it provides the appropriate test for measuring the professional conduct of a barrister when a departure from proper professional standards is charged against him." 22

23 3. Unsatisfactory professional conduct is described in s 127(2) of the Legal Profession Act 1987 ("the Act") in the following way:- 11 (2) 'Unsatisfactory professional conduct' includes 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..." The Tribunal accepts these statements as defining the expressions Professional Misconduct and Unsatisfactory Professional Conduct respectively. The Submissions of the New South Wales Bar Asssociation were summarised by its counsel as follows: "THE ORIGINAL CONDUCT 4. The barrister has made admissions as to his original conduct (see Statement of Agreed Facts - Ex B) which include the following:- (a) (b) (c) (d) He knew that he was briefed in a part heard matter, the AVO proceedings in the Manly Local Court on 10 May 1996 (para 4); By at least 18 June 1996 the barrister knew that he has been retained to appear on hearing in the Family Court proceedings on July 1996 (para 8)/ At no time did the barrister inform the solicitors instructirig him in the Family Court proceedings that he either was unable to appear on the dates specially fixed for the hearing, or alternatively that there was a conflict of dates or that there was a risk that he might be unable to appear (para 9), Exl; T66.38-T67.17); At no time prior to about 8.30 am on the morning of 12 July 1996 did the barrister inform his instructing solicitor in the AVO proceedings of any 23

24 problem about his appearing at the Manly Local Court on 15 July 1996 (paras 10-12, Ex 1; T ). 5. The following facts were established by the evidence and the Statement of Agreed Facts, namely: (a) (b) (c) (d) (e) (f) Although the Family Court proceedings were described in terms as "very complex", the fact was that the barrister had done no work in them for the month preceding the case and planned to prepare it over the weekend before the commencement of the case and to have a conference with his client over that weekend (T51.25-T52.46; T ); The Family Court proceedings were significantly more remunerative to the barrister than the AVO proceedings were at a time when he was under real financial pressure, had no work in his diary for 16 and 17 July (but for the Family Court proceedings) and his income was a matter of real concern (T ); During the whole of the conference of 11 July 1996 the barrister did not disclose to the clients, or his solicitor in the AVO proceedings, that he may be at risk of not appearing the following Monday (T ; T ); The barrister gave Mr Ashton, his instructing solicitor in the Ayo proceedings, no real or effective choice but to arrange substitute counsel on the morning of 12 July 1996 (Doc.7- Ex 1; T61.48 T 54; T62.23-T63.22; see also the concession of Mr Broun QC at T ); At a time prior to the barrister "finally" making up his mind about which brief to appear in, he was warned at least twice what his proper obligation was (Ex C para 4; Ex 1 Doc. 1; T ; T55.1-4; T ; T56.37-T57.8; T59.38-T60.13); The only explanation which Mr Gould 24

25 proffers to explain his conduct is that of pressure of work and personal and domestic difficulties (T ), however it is quite clear that whatever the nature of these difficulties were they were not sufficient to interfere with the ordinary-conduct of Mr Gould's practice (T ), they were not of a kind which caused him to seek treatment of any kind (T ) and in any event had been in existence for some considerable period of time (T49 generally). When questioned specifically about these circumstances the barrister was unable to explain how, in any rational way, these circumstances constituted an explanation for his conduct (T ; T ). CONDUCT DURING INVESTIGATION PHASE '6. It is clear on any version of the events of the conversation in which the barrister spoke to Mr Ashton on the morning of 12 July 1996, that the barrister did not comply with the requirements of r 95 with respect to the explanation he was required to proffer (see Ex 1, para 13; Ex 1 Doc.7; T79.1-4). 7. The answer given to the Bar Association's correspondence was plainly misleading. 8. The barrister contends that it was not intentional. He advances various explanations in the course of evidence with respect to this. The Bar submits that the Tribunal would not accept such explanations. Accordingly, the Tribunal would conclude that because the reading of the rule was a relatively simple matter, what the barrister told Mr Ashton was clearly in his mind, and it was blindingly obvious that he has not complied with the rule when the barrister's version of events is examined, the only inference to be drawn was, knowing that the question of the compliance with the rules was central to the Bar's enquiry, the barrister answered the way he did in order to avoid the consequences of an adverse finding. The answers were intentionally misleading. 9. That being so the intentional misleading of 25

26 the Bar Association, having regard to the barrister's obligation of candour and frankness must constitute professional misconduct. 10. Alternatively, if the Tribunal were to accept the barrister's explanation that he did not adequately turn his mind to the content of the rule, and accordingly to the extent that his answer was misleading it was carelessly so or inadvertently so, then the Bar would submit that such conduct would constitute unsatisfactory professional conduct." The barrister's submissions conceded that he was guilty of unsatisfactory professional conduct in that his conduct fell short of the standard of competence and diligence «that a member of the public would be entitled to expect from a reasonably competent practitioner. He conceded in those submissions, as he did in evidence, that he did not inform the instructing attorney of the actual contents of the Rules. He further conceded that his conduct misled or would have been likely to mislead his clients in the AVO matter and his instructing attorney. He did not concede that he intended to mislead the clients and his instructing solicitor and he did not accept that his conduct was wilful. The Tribunal does not make any finding as to whether or not the barrister's misleading conduct in relation to the client and his solicitor was intentional. However, it was misleading to a high degree. 5. Misleading the Bar Association The barrister concedes that he was aware of the rule at the time he made his answer to the Bar Association when in the first letter he stated, "Yes" to Question 10. He 26

27 submits that at that time he genuinely believed that that answer was correct. The Tribunal finds that the barrister misled the Bar Association in the answer which he gave to Question 10. The Tribunal does not accept that the barrister at the time that he gave the answer believed that it was true. In his submissions Mr Broun QC on behalf of the barrister referred the Tribunal to Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563 where Dixon J adopted a principle similar to the Allinson formula and referred to Rich J as «follows: "A charge of misconduct as relating to a solicitor need not fall within any legal definition of wrong doing. It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or to practice the precepts of honesty or fair dealing in relation to the courts, his clients or the public." The Tribunal finds that in the circumstances of this case the barrister committed a grave act of impropriety affecting his professional character and that it was indicative of a failure either to understand or to practice the precepts of honesty or fair dealing in relation to his clients. The Tribunal finds that the conduct of the barrister in the way he conducted himself from the time that he was informed of the clash of dates for the two cases to be heard on 15 July 1990 until the return of the brief on 27

28 12 July 1996 was conduct which fell far short of that expected of a barrister. The Tribunal finds in addition that he misled the Bar Association in the answers which he gave to the questions relating to his obligation to explain the Bar Rules to his solicitor. His conduct in the opinion of the Tribunal arising out of the way he treated his clients, his instructing solicitor and the way he answered inquiries from the Bar Association was such as would reasonably be regarded as disgraceful and dishonourable by his professional brethren of good repute and competency. < The Tribunal has considered carefully as to whether or not his conduct amounted to professional misconduct as opposed to unsatisfactory professional conduct. The Tribunal is of the opinion that his conduct towards his clients and his instructing solicitor and his misleading conduct when answering the requests of the Bar Association concerning the complaint against him was such as to be regarded as disgraceful and dishonourable by his professional brethren of good repute and competency. The Tribunal therefore finds that the barrister is guilty of professional misconduct. 6. Penalty The Tribunal has considered very carefully the submissions put by counsel for the barrister on the question of penalty. It has taken into account his prior good conduct and the substantial supporting testimony in the declarations tendered on his behalf. Those 28

29 s w declarations were from a medical practitioner and members of the legal profession of the highest reputation. The Tribunal is also conscious of the fact that the order for costs which it proposes to make together with the costs incurred by the barrister in his own defence of this complaint will impose a substantial financial burden upon him. It is therefore the order of the Tribunal that an appropriate penalty is for the barrister to suffer a public reprimand and it is so ordered. The Tribunal orders that the barrister pay the costs of the New South Wales, Bar Association of this hearing on a solicitor and client basis. u 29