18 March 2021

Bringing the legal profession into disrepute – Ethics check for lawyers series

Jennifer Shaw

This article quotes language that could be considered profane, vulgar, or offensive by some readers.

Solicitors and barristers are expected and required to uphold the highest standards of conduct in both their personal and professional lives. In this bulletin we summarise the headline grabbing recent decision of Council of the New South Wales Bar Association v EFA [2021] NSWCATOD 21 which concerned some “poorly judged, vulgar and inappropriate” behaviour on behalf of a barrister at a dinner.

Summary of Factual Allegations

The Council of the New South Wales Bar Association brought proceedings against the respondent barrister in the New South Wales Civil and Administrative Tribunal seeking findings of professional misconduct or alternatively unsatisfactory professional conduct against the respondent barrister “as [he] engaged in sexually inappropriate conduct in that, on 21 July 2017, when attending a function attended by barristers’ clerks and (by invitation) barristers, [he] made sexually inappropriate advances, including gestures, physical contact and words spoken, to an assistant clerk and to another in her presence”.

More specifically, in summary it was alleged that:

just prior to 11pm the respondent barrister approached the table that the clerk (who he did not know) was sitting at;
as the respondent barrister approached the table he stuck his middle finger of his right hand up at another barrister sitting at the same table with the clerk and that barrister reciprocated by sticking his middle finger up back at him;
in front of the clerk the respondent barrister then grasped the other barrister’s head with his hands and pulled his face backwards and forwards towards his crotch;
the respondent barrister leaned towards the clerk and placed his left hand on the back of her head and guided her head towards his crotch whilst stating words to the effect, “suck my d***”.

Standard of Proof

The standard of proof required was proof on the balance of probabilities but given the seriousness of the allegations only “clear and cogent evidence” was capable of meeting that standard (in line with the principle in Briginshaw v Briginshaw (1938) 60 CLR 336).

Summary of Findings of Fact

Apart from the clerk, no other witness was able to give a direct account of the incident. The respondent barrister and the other barrister had no memory of critical aspects of the incident because they were intoxicated. However, the Tribunal was able to view CCTV footage from the evening.

The respondent barrister admitted to sticking his middle finger up at the other barrister on the clerk’s table and admitted that in front of the clerk he grasped the other barrister’s head with his hands and pulled his face backwards and forwards towards his crotch. The Tribunal found that these allegations were also borne out by the CCTV footage.

The Tribunal found that it was clear from the CCTV footage that the respondent barrister did not move the clerk’s head towards his crotch, although he did lightly push her head forward towards the table. The Tribunal accepted the clerk’s evidence that the respondent barrister said “suck my d***” as he pushed her head forward.

Characterisation of the conduct

The Tribunal found that the respondent barrister and the other barrister referred to above were good friends and that their interaction appeared to be a private joke between them.

The Tribunal found that the respondent barrister’s conduct in simulating oral sex with the other barrister was inappropriate sexual conduct, however, the Tribunal stated, “Their interaction, including the brief simulation of oral sex, appeared to be a ritualised greeting which, in part, parodied oral sex. The interaction was clearly not appropriate at a barristers’ clerks’ dinner, even late in the evening, and had the potential to offend onlookers. We note, however, that there is no evidence that anyone present that evening was, in fact, offended by the interaction between [the respondent barrister] and [the other barrister], including [the clerk]”.

In relation to pushing the clerk’s head and saying to her “suck my d***” the Tribunal held that the respondent barrister’s words and actions did amount to inappropriate sexual conduct that offended and humiliated the clerk but said that “it was not ‘a sexually inappropriate advance’ or any kind of advance at all”.

The Tribunal stated that it seemed from the CCTV footage that the barrister was “extending to her an abridged echo of the greeting he had offered to [the other barrister]. He was including her in the horseplay he had engaged in with [the other barrister]”. The Tribunal added, “It was very poorly judged, doubtless on account of [the respondent barrister’s] significant level of intoxication”.

The Tribunal found that the respondent barrister’s conduct did not amount to professional misconduct but did amount to unsatisfactory professional conduct on account of it being a breach of sections 8 (a) and (c) the Legal Profession Uniform Conduct (Barristers) Rules 2015 which state:

A barrister must not engage in conduct which is:
- Dishonest or otherwise discreditable to a barrister;
- Likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession in to disrepute.

Next steps

Now that the Tribunal has determined liability the case will be listed for a stage 2 hearing to determine what ‘penalty’ orders should be made.

The characterisation of the barrister’s conduct in this case as unsatisfactory professional conduct as opposed to the more serious category of professional misconduct and the fact that the barrister’s name has been anonymised in the published decision has raised some eyebrows and has been reported in the national press[1]. It remains to be seen whether the decision will be appealed and whether the non-disclosure order with respect to the barrister’s name will be lifted.