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LEGAL SERVICES TRIBUNAL

MATTER NO 5 OF 1997 GLENN GOULD

BEFORE: Mr P Capelin QC (Chairman)Mr P Menzies QCMs A Mara

JUDGMENT

Level 8, University Chambers, 167 Phillip Street, Sydney 2000 Telephone: (02) 9221 4414 Facsimile: (02) 9221 8340

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 Councilof the NSW Bar Association.

PARTICULARS:

Ground 1 - Inappropriate Acceptance or Retention of aBrief.

1. The barrister appeared in proceedings entitledStapleton v Carpenter in the Manly Local Court on10 May 1996 ("the AVO Proceedings") . On that daythe AVO proceedings were adjourned part heard forfurther hearing to 15 July 1996.

2. On 22 May 1996 the barrister accepted a brief inthe matter of Fullerton v Zingarelli in theFamily Court of Australia ("the Family Courtproceedings"). Between 12 June 1996 and 18 June1996, the barrister was informed that the FamilyCourt proceedings were fixed for hearing on 15,16 and 17 July 1996.

3. Having regard to the existence of the AVOproceedings for hearing on 15 July 1996, it wasinappropriate for the barrister to have acceptedor retained the brief to appear in the FamilyCourt proceedings on 15, 16 and 17 July 1996.

Ground 2 - Inappropriate Return of a Brief

1. On 12 July 1996 at about 8.30 am the barristerinformed his instructing solicitor in the AVOproceedings that he would not appear in thoseproceedings on 15 July 1996.

2. It was the barrister's obligation to continue toappear in the AVO proceedings unless he obtainedthe permission of his instructing solicitor toreturn the brief. Such permission could only beobtained by the barrister after:

(a) He had clearly informed his instructingsolicitor of the circumstances in which hewished to return the brief;

(b) He had informed his instructing solicitor ofthe terms of Rules 95 and 97 of the BarRules.

3 . The barrister did not clearly inform hisinstructing solicitor of the circumstances inwhich he wished to return the brief, nor did heinform his instructing solicitor of theprovisions of Rules 95 and 97.

4. ^Additionally, having regard to the nature of the AVO•proceedings, including the fact that they.werepart heard, and the lateness of the point in timewhen the barrister indicated that he would notappear in them, the return of the brief wasinappropriate.

Ground 3 - Misleading Conduct

1. At no time prior to 12 July 1996 did thebarrister inform his instructing solicitor in theAVO proceedings that where was a real or anypossibility that he may be unable to appear. Atall times prior to 8.30 am on 12 July 1996 thebarrister held himself out as being available toappear on 15 July 1996 in the AVO proceedings.

2. On the afternoon of 11 July 1996 the barristerheld a conference in his Chambers at which theclient in the AVO proceedings, Ms Stapleton,attended and for part of which-his instructingsolicitor attended. The purpose of theconference was to ensure the proceedings wereproperly prepared for the next hearing day. Atno time did the barrister inform his client orinstructing solicitor during that conference thathe may be unavailable to appear in the AVOproceedings. He held himself out at all times asintending to, and being available to appear.

3. At no time did the barrister inform his instructingsolicitor in the Family Court proceedings thatthere was a real or any possibility that he would

be unable to appear in those proceedings, atleast on 15 July 1996.

4. At all times up to 8.30 am on 12 July 1996, thebarrister conducted himself and held himself outas being able to appear in both the AVOproceedings and in the Family Court proceedings,when the proceedings coincided and he was unableto appear in both of them on 15 July 1996. Thebarrister, knowing of the true position failed toreveal it to either of his instructing solicitorsor clients until about 8.30 am on 12 July 1996.

Ground 4 - Misleading or Attempting to Mislead the Councilof the NSW Bar Association

1. By letter dated 5 August 1996, the Bar Councilinformed the barrister that it had initiated andwas 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 ofquestions which included the following:

(i) Letter Council to barrister dated 5 August1996:

"10. Did you comply with the requirementsof Rule 95 when seeking the consentof your instructing solicitor toreturn the brief in the AVO matter?"

(ii) Letter barrister to Council dated 23August 1996:

'10. Yes.'

(iii) Letter Council to barrister dated 30 August 1996

M. Please set out the facts andcircumstances in which you say youcomplied with requirements of Rule 95,including the date of that conversationand full details thereof.

(iv) Letter barrister to Council dated 27September 1996:

X4. On 12 July 1996 I told Mr Ashton of thedifficulty I then faced. We discussedthe subject matter with which Rule 97deals, namely whether other counselwould have the opportunity to take over

the case. He agreed, knowing MrMaiden, that such an opportunity didexist, particularly in the light of thefact that the client had in herpossession a tape recording of thefirst day's proceedings7.

3. At all times, the barrister had not and knew thathe had not, complied with Rule 95 properly or atall. To assert and maintain in thecorrespondence set out above that he had done sowas conduct which was misleading of the Councilor conduct by which the barrister intended tomislead the Council."

In his amended reply the barrister stated in answerto the particulars contained in the amended information asfollows:

"A. Ground 1 - Inappropriate Acceptance or Retention ofa Brief

- Particular

1. Admitted.

2. The barrister accepted a brief in the matterof Fullerton v Zinaarelli on or about 22 May1996. The barrister was advising and actingin respect of interim applications. For atime the brief was held by a Mr S. Stewart.This matter was listed urgently due to thebarrister's client's intention to move toNorth Queensland with the children, and theissues of existing orders, their variationor vacation and other incidents of thewife's proposed removal required threehearing days. It is admitted that thebarrister was informed approximately onemonth before the hearing date of the daysfixed for that matter.

3. The barrister concedes that one of thebriefs should have been returned prior to 12July 1996 but does not admit that theFullerton v Zinaarelli brief should havebeen returned as soon as the listing orhearing dates were made known.

B. Ground 2 - Inappropriate Return of a Brief

Particular

1. Admitted.

The barrister also says that he had priorappointment with the attorney instructinghim in Stapleton v Carpenter appointed forthe morning of 12 July 1996.

In this~discussion the problems concerninglistings for 15 July 1996 were discussed andexplained and the solicitor agreed toapproach another barrister for the hearing.

2. Admitted.

3. The barrister admits he did not explain therequirements of rule 95 and the terms ofrule 97 to the solicitor during thediscussion on 12 July 1996.

4. The barrister concedes that the brief forthe AVO should have been the subject ofdiscussion and returned prior to 12 July1996 but says that the remaining work wascapable of assessment and preparation bycompetent counsel assisted by the tape ofthe initial days hearing. Cross examinationwas not in abeyance and the ambit of thedispute between the parties was narrow -i.e. two incidents in which no physicalviolence was alleged.

C. Ground 3 - Misleading Conduct

1. The barrister admits particulars 1-4 aspleaded.

Misleading conduct is denied.

It is submitted that to be misleading thereneeded to be an element of intent which wasnot present in the barrister's conduct.

The failure to realise earlier the conflictwas due to unexpected pressure of work inthe period leading to 11 July 1996 andpersonal and domestic difficulties whichdistracted the barrister.

D. Ground 4 - Misleading or Attempting to Misleadthe Council of the New South Wales BarAssociation.

1. The barrister admits particulars 1 and 2.

2. The barrister denies particular 3, and in

particular denies that he-misled the Councilor intended to mislead the Council of theNew South Wales Bar Association.

E. Generally

1. The barrister concedes- and admits that thereturn of the brief in Stapleton v Carpentershould have occurred prior to 12 July 1996.

2. The barrister concedes that this failureamounts to a lack of diligence sufficient toestablish a breach of section 127(2) of theLegal Profession Act.

3. The barrister notes that the attorneyinstructing in Stapleton v Carpenterarranged for Mr Peter Maiden of counsel totake the brief, that the client was notcharged for the conference on 11 July 1996by the barrister, and that the furtherhearing in the Manly Local Court led to asuccessful result for the client.

4. The barrister notes that according to MsHelen Barrett of the Bar Association, thefather of the client in Stapleton vCarpenter telephoned her after the hearingon 15 July 1996 and advised her that hisfaith in the legal profession had beenrestored."

The Council requests the making of the following orders:

1. A finding that the legal practitioner is guiltyof professional misconduct and/or unsatisfactoryprofessional conduct;

2. Such orders as to the Tribunal seem fit pursuantto Section 171C(1)(b)-(i);

3. That the legal practitioner pay the Council'scosts of these proceedings on a solicitor andclient 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

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 1996 - 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 1996 - 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 1996 - Fullerton v Zincrarelli was mentioned

in the Family Court and Laurie J fixed a hearing date for

15 July 1996. 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

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 1996.

11 July 1996 - 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

made an appointment for time and place at Manly Court for

the parties to meet him on the following Monday. When

asked whether he had "Full intentions to be there"? He

answered "No, Mr Chairman, I haven't said that, I had

formed, I hadn't addressed it at all. He answered

questions on this topic as follows:

11Q. You didn't know whether you were going to bethere or not?

A. In the back of my mind I knew there was adifficulty that would have to be addressed. Ihad been putting it off. It had been overlookedfor a time and then been put off, it just wasn'taddressed until the Friday.

,Q. Do you think it might have been fair to take- them into your confidence and to tell them thatthere was a difficulty.A. If I had been thinking straight I would havedealt with it earlier than that. Yes at least atthat time that was the appropriate thing to do,had I been thinking clearly about the dilemmaclearly the solicitor should have been given asmuch notice as he could be. Clearly the Thursdaywould be better than the following morning, had Iapplied my mind to it. In practical terms I amnot sure he could have got any counsel between 6o-clock and 8.30. He may well have been able toget counsel, I don't know. I didn't deal withit.

MR MENZIES: I can understand a situation, I canunderstanding many situations, one I canunderstand is that you open up your diary onFriday morning, you look at the next week and yousay to yourself: Oh my God I am doublebooked." But that is not what you sayoccurred. You say that, as I understand it,correct me if I am wrong, even as you had theconference on the Thursday afternoon you had inthe back of your mind that there was a difficultywhich had to be resolved, is that right?A. That is so.

Q. What was the difficulty that you had to haveresolved?A. The difficulty was that I wasn't going to beable to appear in two places at the same time in

10

the following week.

Q. Surely what you would have done at the verylatest at that conference on the Thursdayafternoon was to say to your nervy client withher extreme personality father: "I do not thinkI can do your case on Monday morning", isn't thatright?A. If I had intended that at the time I wouldhave said it.

Q. What I am struggling with is, how you cansay consistently there was something in the backof my mind that something being I can't besomewhere on Monday morning, at the time when youare speaking to the very people for whom you mayhave to appear on Monday morning and say nothingto 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 gettingthrough one day at a time. Sometimes I wassuffering a great deal of stress. Tomorrow'sdifficulties could be left perhaps until tomorrowat that stage. I am not saying it is the rightor wrong thing. I am trying to put in contextwhat appears to be very odd. I would have aconference, not mention it, and suddenly the nextmorning it is raised."

12 July 1996 - 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. Mr Ashton happened to be with him conferring in

another matter.

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

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

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. He gave evidence to the

Tribunal and was cross-examined. 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 lunchby saying that there is no question that MrAshton's letter is in evidence in accordance withthe Evidence Act, and the understanding it isthere as evidence of its contents. It is no moreor less in that circumstance than is that it were

13

a statutory declaration and we have no desire tocross-examine Mr Ashton on it. That is theposition."

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 thebarrister conferred with his instructing attorneyin the AVO proceedings, before commencing aconference in an unrelated matter where he wasinstructed by the same attorney. The barristeradvised his instructing attorney that he would beunable to appear in the AVO proceedings onMonday, 15 July 1996."

Mr Ashton7s version of those events is contained in

his letter to the Bar Council of 12 September 1996.

t"The writer attended a conference with our client-and Mr Gould at approximately 8.30 am on thatdate. Prior to that conference commencing, MrGould informed the writer to the effect that hewas jammed on the following Monday, as he had aFamily Court matter in which he was briefed, andwould therefore be unable to appear in theStapleton 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 July1996 I spoke to Mr Gould by telelphone. In ourconversation I said to him words to the effect:

You are part heard in an AVO matter at Manlyon Monday. What do you have on Monday?

Gould said words to the effect:

I have a 3 day family law matter which Ihave been in for some time and the client iscoming from Hong Kong. I will be conferringwith the client on the weekend.

I said words to the effect:

In my view you are part heard in a criminalmatter and you should finish it. What I

14

suggest you do is complete the part heardmatter and I will commence the family lawmatter by reading the affidavits and hold ituntil you get there.

Gould said words to the effect :

I'm staying with the family law matter.

This was followed by conversation concerning theneed 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, youtell me. Is it clear that when he arrivedon the Friday morning to have the conferencein the Dooley matter, you told him that youwould 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 onthe Monday, that I had two cases. He thensaid: "You've got yourself into a jam." Isaid: "Peter, in effect I would like to bereleased from this matter", and he thensaid: "Well, I'll go and make a phone call."It was all over in a very short space oftime 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

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 1996. 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 1996.

The rules of the New South Wales Bar Association

16

which are relevant to the barristers conduct are rules 95

and 97 which are as follows:

"95. A barrister must not return a brief toappear in order to accept another brief toappear unless the instructing solicitor orthe client, as the case may be, in the firstbrief has permitted the barrister to do sobeforehand, after the barrister has clearlyinformed the instructing solicitor or theclient, as the case may be, of thecircumstances in which the barrister wishesto return the brief and of the terms of thisRule and Rule 97."

"97. A barrister who wishes to return a briefwhich the barrister is permitted to returnmust do so in enough time to give anotherlegal practitioner a proper opportunity totake 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 1996.

17

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

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

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 theroot of all the problems was that thebarrister retained both briefs for the oneday too long. The subsequent problems allflowed 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 ofbriefs, is a relatively common occurrence inthe Family Law ̂ and related jurisdictionsbecause of the propensity for matters tosettle and until late 1996, indefinitelisting procedures in the Family Court. Itis not my normal practice to double bookmatters."

The practice of passing briefs as a matter of

barristers7 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 ofthe New South Wales Bar Association.

By letter dated 5 August 1996 the Bar Council

informed the barrister that it had initiated and was

20

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 August1996:

"10. Did you comply with the requirements ofRule 95 when seeking the consent of yourinstructing solicitor to return the brief inthe AVO matter? "

(ii) Letter barrister to Council dated 23 August 1996.

"10. Yes".

(iii) Letter Council to barrister dated 30 August1966.

"4. Please set out of the facts andcircumstances in which you say you compliedwith requirements of Rule 95, including thedate of that conversation and full detailsthereof".

(iv) Letter barrister to Council dated 27September 1996.

"4. On 12 July 1996 I told Mr Ashton of thedifficulty I then faced. We discussed thesubject matters with which Rule 97 deals,namely, whether other counsel would have theopportunity to take over the case. Heagreed, knowing Mr Maiden, that such anopportunity did exist, particularly in thelight of the fact that the client had in herpossession a tape recording of the firstday'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

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 wasoriginally formulated in relation to medicalpractitioners in Allinson v General Councilof Medical Education and Registration (1984)1QB 750. It was there ruled thatprofessional misconduct consisted inbehaviour on the part of the practitionerwhich would reasonably be regarded asdisgraceful and dishonourable by hisprofessional brethren of good repute andcompetency. This criterion has been appliedin determining whether a solicitor has beenguilty of professional misconduct... We donot doubt that it provides the appropriatetest for measuring the professional conductof a barrister when a departure from properprofessional standards is charged againsthim."

22

3. Unsatisfactory professional conduct is describedin 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 anact or omission) occurring in connectionwith the practice of law that falls short ofthe standard of competence and diligencethat a member of the public is entitled toexpect of a reasonably competent legalpractitioner..."

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 hisoriginal conduct (see Statement of AgreedFacts - Ex B) which include the following:-

(a) He knew that he was briefed in a partheard matter, the AVO proceedings inthe Manly Local Court on 10 May 1996(para 4);

(b) By at least 18 June 1996 the barristerknew that he has been retained toappear on hearing in the Family Courtproceedings on 15 - 18 July 1996 (para 8)/

(c) At no time did the barrister inform thesolicitors instructirig him in theFamily Court proceedings that he eitherwas unable to appear on the datesspecially fixed for the hearing, oralternatively that there was a conflictof dates or that there was a risk thathe might be unable to appear (para 9),Exl; T66.38-T67.17);

(d) At no time prior to about 8.30 am onthe morning of 12 July 1996 did thebarrister inform his instructingsolicitor in the AVO proceedings of any

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problem about his appearing at theManly Local Court on 15 July 1996(paras 10-12, Ex 1; T67.28-33).

5. The following facts were established by theevidence and the Statement of Agreed Facts,namely:—

(a) Although the Family Court proceedingswere described in terms as "verycomplex", the fact was that thebarrister had done no work in them forthe month preceding the case andplanned to prepare it over the weekendbefore the commencement of the case andto have a conference with his clientover that weekend (T51.25-T52.46;T82.41-47);

(b) The Family Court proceedings weresignificantly more remunerative to thebarrister than the AVO proceedings wereat a time when he was under realfinancial pressure, had no work in hisdiary for 16 and 17 July (but for theFamily Court proceedings) and hisincome was a matter of real concern(T80.16-48);

(c) During the whole of the conference of11 July 1996 the barrister did notdisclose to the clients, or hissolicitor in the AVO proceedings, thathe may be at risk of not appearing thefollowing Monday (T70.7-51; T72.35-48);

(d) The barrister gave Mr Ashton, hisinstructing solicitor in the Ayoproceedings, no real or effectivechoice but to arrange substitutecounsel on the morning of 12 July 1996(Doc.7- Ex 1; T61.48T54; T62.23-T63.22;see also the concession of Mr Broun QCat T47.25-32);

(e) At a time prior to the barrister"finally" making up his mind about

which brief to appear in, he was warnedat least twice what his properobligation was (Ex C para 4; Ex 1 Doc.1; T54.5-16; T55.1-4; T56.1-29;T56.37-T57.8; T59.38-T60.13);

(f) The only explanation which Mr Gould

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proffers to explain his conduct is thatof pressure of work and personal anddomestic difficulties (T48.10-16),however it is quite clear that whateverthe nature of these difficulties werethey were not sufficient to interferewith the ordinary-conduct of Mr Gould'spractice (T50.18-21), they were not ofa kind which caused him to seektreatment of any kind (T50.23-29) andin any event had been in existence forsome considerable period of time (T49generally). When questionedspecifically about these circumstancesthe barrister was unable to explainhow, in any rational way, thesecircumstances constituted anexplanation for his conduct (T50.31-37;T50.47-54).

CONDUCT DURING INVESTIGATION PHASE

'6. It is clear on any version of the events ofthe conversation in which the barristerspoke to Mr Ashton on the morning of 12 July1996, that the barrister did not comply withthe requirements of r 95 with respect to theexplanation he was required to proffer (seeEx 1, para 13; Ex 1 Doc.7; T79.1-4).

7. The answer given to the Bar Association'scorrespondence was plainly misleading.

8. The barrister contends that it was notintentional. He advances variousexplanations in the course of evidence withrespect to this. The Bar submits that theTribunal would not accept such explanations.Accordingly, the Tribunal would concludethat because the reading of the rule was arelatively simple matter, what the barristertold Mr Ashton was clearly in his mind, andit was blindingly obvious that he has notcomplied with the rule when the barrister'sversion of events is examined, the onlyinference to be drawn was, knowing that thequestion of the compliance with the ruleswas central to the Bar's enquiry, thebarrister answered the way he did in orderto avoid the consequences of an adversefinding. The answers were intentionallymisleading.

9. That being so the intentional misleading of

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the Bar Association, having regard to thebarrister's obligation of candour andfrankness must constitute professionalmisconduct.

10. Alternatively, if the Tribunal were toaccept the barrister's explanation that hedid not adequately turn his mind to thecontent of the rule, and accordingly to theextent that his answer was misleading it wascarelessly so or inadvertently so, then theBar would submit that such conduct wouldconstitute unsatisfactory professionalconduct."

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

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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 asolicitor need not fall within any legaldefinition of wrong doing. It need not amount toan offence under the law. It was enough that itamounted to grave impropriety affecting hisprofessional character and was indicative of afailure either to understand or to practice theprecepts of honesty or fair dealing in relationto 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

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

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

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