Claim of mental illness unsuccessful in setting aside disciplinary findings … Barrister rents property to vulnerable client … Conflicts of interest … Late to court … Mental illness does not mean conduct cannot be unsatisfactory … Kate Lilly reports
A barrister who escaped disciplinary action has been knocked back in the NSW Supreme Court, after she challenged an NCAT finding of unsatisfactory professional conduct.
The bar council commenced proceedings against “BJR” in December 2013 under the Legal Profession Act. Last year, the Civil and Administrative Tribunal found against the barrister, but spared her from disciplinary action due to her mental illness.
On appeal, BJR claimed the determination against her did not advance the primary purpose of disciplinary proceedings – to protect the public.
Last week, Justice Christine Adamson disagreed – observing that the tribunal’s findings “served to educate the public and the profession as to the appropriate standards, as well as to restore public confidence in the profession”.
The bar council originally commenced proceedings against BJR on three grounds:
BJR initially accepted she had engaged in unsatisfactory professional conduct in respect of each of the three grounds. Nonetheless, she submitted “that the tribunal ought not make findings to that effect because the conduct was wholly or principally caused by her mental illness”.
On July 16, 2015 the Civil and Administrative Tribunal ruled that BJR had engaged in unsatisfactory professional conduct. However, the tribunal also accepted that BJR’s judgment and cognition had been impaired by a mental illness and spared her a reprimand.
Despite this, BJR appealed. She claimed the tribunal had erred in law by making a finding of unsatisfactory professional conduct, notwithstanding evidence that her psychiatric condition had caused the conduct. Ultimately, she argued that:
BJR had previously accepted that her conduct did amount to UPC. On this score, further submissions were served on the council, just hours before the matter was due to be heard in the NSWSC, including:
“Plaintiff does not admit that the conduct is even objectively UPC and only did so previously as the result of poor advice from a legal team that she terminated.”
HH further explained:
“The objective conduct, rather than the professional culpability of the practitioner, is of prime, if not sole relevance. Therefore, generally speaking, any mental affliction which the practitioner may suffer is irrelevant to the characterisation of conduct as unsatisfactory professional conduct.”
There was no question that BJR’s conduct was unsatisfactory in Adamson’s eyes. On the tardiness, she held:
“The plaintiff’s failure to attend court punctually had the effect of depriving her clients of the opportunity of giving her instructions and obtaining advice in a timely way in advance of their matters being called … Members of the public are entitled to expect, as a base standard, that a legal practitioner will attend court at the appointed time. A repeated failure to do so falls short of the standard of diligence required. Although the plaintiff was not responsible for her mental condition, she was responsible for accepting the position as duty barrister for particular days and the corresponding obligation to arrive at court at the appointed time for the purpose of pre-hearing consultations. No error has been shown in the tribunal’s finding.”
On the question of the lease, she further held:
“There was in my view a clear conflict between the client’s interest in having stable accommodation and the plaintiff’s interest in earning income from the lease of the premises … Although the plaintiff’s medical condition may provide some explanation for her conduct (since it compromised her judgment), it did not deprive her conduct of its character as unsatisfactory professional conduct.
Members of the public are entitled to expect a barrister to act in the interests of their clients. They are also entitled to expect that a barrister will not exploit the client’s position (which in many cases, as here, is a relatively vulnerable one) for the barrister’s own advantage. The barrister’s conduct fell short of the standard of diligence required.”
Adamson said the purpose of disciplinary proceedings against lawyers is to project the public generally. BJR argued that a bare finding of UPC in her circumstances did not advance this noble objective. Adamson disagreed:
“The protection of the public is advanced, not merely by regulating those who are entitled to practise and removing from practise those who are no longer fit, but also by educating the profession, and the public, as to the applicable standards of professional conduct (and personal conduct where it bears on the profession); and maintaining public confidence in the legal profession … The making of findings serves an important educative role, particularly where, as here, no disciplinary action is taken notwithstanding that a practitioner has been found guilty of unsatisfactory professional conduct.”