Solicitor back in the game after an impressive history of offending and carelessness with revealing the gory details to the admission authorities … No such luck for a NZ lawyer seeking admission to the NSW bar n’ grill … Compare and contrast 

Justice Stephen Campbell in the NSW Supremes has overturned a Law Society decision to withhold a 2015 practising certificate from a young man with a string of driving offences, convictions for destroying property and urinating on a door, along with inadequate and misleading disclosure of his offending to the admission authorities. 

Campbell decided that Cesar Montenegro was still a fit and proper person and ordered the Law Society to give him a ticket, with conditions. 

Montenegro graduated from the University of Western Sydney in 2007 and was admitted to practice in December 2008, having disclosed some previous convictions and offending. 

He did not reapply to the Law Society when his 2013 ticket lapsed, instead he wanted to go to the bar. 

The bar council did its own inquiries and knocked him back, giving nine reasons – seven of which were for inadequate disclosure. The others were for obtaining a driving license under a false name and claiming to be a barrister on social media while his application was pending. 

Having failed to get to the bar, Montenegro went back to the law society, disclosing the bar’s findings in his application. He was refused a ticket for 2015 and then commenced proceedings in the Supreme Court. 

At the hearing it was not put to Montenegro that the convictions, now disclosed, were incompatible with good character, that he lied, that he fabricated evidence or that he fraudulently concealed the information. Rather, the incompleteness of his disclosures was the ground on which the society sought to refuse his licence. 

In March 2000 the solicitor was convicted of maliciously destroying property. His disclosure to the admission board said: 

“Was out fishing one night at Clifton Gardens. Started drinking alcohol with a group of friends, before we know [sic] it we jus [sic] started overturning bins and destroyed a toilet block. Paid $1,500 in compensation for damage. Ordered to perform Community Service 100 hours concurrent.” 

He gave a false identity to the police and there was a complaint about the adequacy of disclosure. However, Campbell was satisfied that his “succinct account” was sufficient. 

He was convicted for a number of offences occurring at the Marconi Club in September 2000 – possession of a false drivers licence, stealing a wallet and two mobile phones. 

His disclosure to the board was incomplete and misleading in that he said he did not use the drivers licence for the purpose of deception. 

In November 2002, Montenegro was convicted, in his absence, for driving when his licence was cancelled, possessing a licence (a learner’s permit) obtained by dishonest means, and the related offence of obtaining a licence by a false statement. 

Only some of this was disclosed, however those convictions were subsequently annulled and the charges withdrawn. 

In October 2002, Montenegro was charged with providing a false name to police when he was pulled over driving while his license was cancelled. 

There were an additional five undisclosed traffic offences that, although convictions were quashed, were still held to be relevant to considering Montenegro’s character and therefore ought to have been disclosed. 

There included driving furiously, while his license was cancelled, producing a false name and address, clocked driving at 152km/h in a 90km/h zone, and not producing his license when requested.

He gave a spurious explanation to the police for the speeding, that “his girlfriend’s father had recently died and he was trying to get her home”. 

He told the bar council that in regard to the false driving license, “it was not me and the police could not prove that it was me”. The bar regarded this as highly relevant to the consideration of his good fame and character. 

In 2010, there were two mid-range drink-driving offences and Montenegro was found driving while his license was suspended. 

Again there was inadequate disclosure. The true nature of the offence was that Montenegro and a friend drove into a petrol station, urinated on a door, were seen by police and breath-tested, recording a mid-range reading. 

He was taken to the police station where he was charged and his license confiscated and suspended on the spot. 

Montenegro then went back and unlawfully drove his car away from the service station and later that evening, when found by police, recorded an even higher blood-alcohol reading. 

He was fined for all charges and his license suspended. When applying for a practicing certificate from the law society he disclosed only the drink-driving convictions, but not driving while disqualified. Campbell said: 

“It is curious that he apparently overlooked the drive whilst suspended charge when, notwithstanding the explanation he has given, his disclosure was made within about two weeks of the conviction and sentences being imposed.”

In 2013, he damaged the windows of his girlfriend’s car, was convicted and fined. This was disclosed – however on further investigation the bar council found that Montenegro had initially lied to the police, suggesting it had been the work of vandals. 

Two lawyers, barrister Nicholas Silva and solicitor Sayar Dehsabzi provided affidavits for Montenegro, attesting to his propriety and fitness. The judge said he was, “influenced to some degree by the good opinion of the solicitor expressed by the lawyers who have given evidence on his behalf”.

The inadequacy of disclosure about driving convictions between 2002 and 2004 was held to be of the greatest concern in the appeal. Specifically, inadequate disclosure of the circumstances of the offences, the sentences passed, non-compliance with orders and non-disclosure of driving while disqualified. Serious traffic offences are relevant to fitness, as is lack of candour and disclosure. 

However, in spite of this, the judge held that Montenegro was fit and proper to hold a restricted local practicing certificate with conditions to be imposed by the law society. Campbell agonised: 

“I am satisfied that he may have obtained a practising certificate in the past because of information which was incorrect, in terms of being incomplete, and therefore apt to be misleading, but not dishonestly so …  

The real concern is the shortcomings in his understanding of the obligation of complete candour. To a lesser extent the 2010 and 2014 convictions suggest moral failings relevant to his professional standing when under the influence of alcohol. Given his comparative youth when the pre-admission offending occurred, and the disclosure of the substance of his pre-admission convictions to the board, I am of the view that the shortcomings in his disclosure at that time are explained in part by his youth, but also by a lack of due diligence born of a want of a full understanding of what is required of him as an Australian lawyer.” 

With a few conditions to be attached by the society, the judge gave him a ticket. 

The law society is holding the judgment up to the light to see if there are any cracks in the reasoning. 

Comeskey tried to get admitted from across the ditch using the Trans-Tasman Mutual Recognition Act, but his colourful past caught up with him. 

The bar refused him a ticket so he went to court, representing himself. David McLure and Mitchell Davis were the briefs for the bar. 

Comeskey filed no evidence and said this was an appeal in the strict sense in which he sought to demonstrate error in the bar council’s thinking. 

Hidden upheld the bar’s submission that the appeal amounted to a hearing de novo, yet the plaintiff declined an invitation to put on any evidence to demonstrate he is fit and proper. 

The bar submitted that his refusal to give evidence demonstrated a lack of candour. 

In 2010, Comeskey pleaded guilty to three charges of misconduct before the New Zealand Lawyers and Conveyancers Tribunal. 

His contract with the Legal Services Agency said that that only he could appear for the client he was assigned, yet on two appearances Comeskey sent along employees of his law shop to act for the client, all charged out at senior counsel rates.  

He billed the Legal Services Agency for 15 hours preparation time – a bill unsupported by any evidence. 

He was also charged with submitting misleading information to the Court of Appeal in another case. The court described Comeskey’s submissions as “more misleading that inept”, adding: 

“Need we mention the fundamental importance of counsel accurately stating the position, and being absolutely candid and forthright with the court?” 

Comeskey was suspended from practice for nine months, ordered to deliver an unqualified apology to the Court of Appeal, and billed $66,000 in costs, which is still outstanding. 

Comeskey’s resume also includes six offences of failing to submit tax returns, drunk-driving, and 11 other complaints made against him to the law society, one of which involved using offensive language towards a judge. 

Comeskey claimed the tax offences were irrelevant, having been committed before he began to practice, and blamed the DUI on professional stress. 

Hidden was less worried about the complaints – which he conceded were “of concern” – than about Comeskey’s failure to disclose them. The burden of establishing Comesky as a fit and proper person to hold a practicing certificate, declared Hidden J, rested solely on Comeskey himself, and the burden is one he failed to discharge.

The bar said he gave a false answer to the question on the application form, “Have you had, or is there currently, any complaint lodged against you as a legal practitioner, in any jurisdiction?” 

He argued that this amounted to two questions, one as to the past and one as to the present, and that if he had answered in the affirmative “confusion would have reigned”. As he put it, an affirmative answer could have been “yes” to both propositions, or “yes” to only one of the propositions, but which one?

The NZ press has also reported that the lawyer brokered the return of the missing Waiouru war medals, which had been stolen from a war museum by “master criminal” Ronald Van Wakeren. 

Comeskey was accused of pocketing half of the $300,000 reward.