The Tribunal described his behaviour as ‘poorly judged, vulgar and inappropriate’
In a recent hearing in the Civil and Administrative Tribunal NSW, the Council of the New South Wales Bar Association brought an application under the Legal Profession Uniform Law (NSW) against a barrister for his conduct towards a clerk at a professional event.
On 21 July 2017, the respondent barrister and clerk attended a professional function. They had never met before. Shortly before 11pm, the respondent barrister approached the clerk’s table. As he approached, he stuck his middle finger of his right hand up towards another barrister sitting at the table, who reciprocated the gesture in a jovial manner.
The respondent barrister then performed a “greeting ritual” with the other barrister, whereby he took hold of the other barrister’s head and moved it forwards and backwards from his crotch several times. The other barrister was clearly amused throughout the greeting.
The respondent barrister then moved to stand behind the clerk, who was still seated at the table. In the application, it was submitted that the barrister then placed his hand on the back of the clerk’s head and guided it towards his crotch (as he did with the other barrister) and said words to the effect of “suck my d***”.
The Tribunal found the respondent barrister did utter this phrase to the clerk. Further, CCTV footage confirmed that the respondent barrister reached out and placed his left hand on the back of the clerk’s head. However, it was shown that the respondent barrister pushed the clerk’s head forward, over the table, rather than towards his crotch.
Visibly and understandably shaken, the clerk attempted to maintain a positive presence by laughing along with the two barristers, before leaving the table to find the clerk of the Chambers at which she was employed.
The Council alleged the respondent barrister was guilty of professional misconduct or, in the alternative, unsatisfactory professional conduct under ss. 297 and 296 of the Uniform Law, respectively.
In assessing whether or not the respondent barrister was guilty of professional misconduct, the Tribunal considered whether he was a “fit and proper person” to engage in legal services, ultimately finding that his conduct did not indicate a “character flaw which would render him unfit to practice the law for any length of time”.
However, the Tribunal was satisfied that the respondent barrister’s act amounted to unsatisfactory professional conduct, as it was “discreditable to a barrister” and constituted “conduct likely to bring the legal profession into dispute” under the Uniform Rules. Disciplinary orders per the finding of unsatisfactory conduct are yet to be set.
Key Takeaways:
- Barristers are bound by the Legal Profession Uniform Law (NSW) and the Legal Profession Uniform Conduct (Barristers) Rules 2015
