Keeping the profession in good repute by covering-up the names of lawyers in disciplinary proceedings … SA judge goes through the balancing act of deciding what’s best – redaction or open justice … Redaction wins 

THERE’S something unseemly in the courts looking after lawyers with kindly orders suppressing their names from embarrassing judgments. 

It smacks of looking after one’s own, while the great unwashed don’t get the same privilege – even in interlocutory or other preliminary proceedings. 

In the ACT, lawyers’ name are invariably expunged from the record, even in cases where professional misconduct is under consideration. Where there is no adverse finding, suppression of the alleged offender’s name is the order of the day, so clients and the public are deprived of the right to fully weigh the issues.  

Last month, Justice Kevin Nicholson of the South Australian Supremes ordered the name of a legal practitioner be redacted from the electronic publication of his reasons. 

The judge had refused an application from the Legal Profession Conduct Commissioner for suspension of the lawyers’ ticket pending the outcome of disciplinary proceedings.   

The judgment was published to the parties in open court with an unredacted title.

However, the practitioner made an oral application that his name be removed from the reasons.

Nicholson relied on the Supreme Court Civil Rules and common law, which confirm that beyond being published and delivered to parties in open court, and a few select in-house others, there is no requirement that judgments be disseminated to the public.   

HH noted that soon after external publishers obtain judgments, they appear on forums such as the “AustLII internet site”. 

However, the reality of widely available judgments does not affect the court’s inherent jurisdiction to edit its reasons and limit the availability of sensitive material. 

It was therefore within the judge’s discretion to decide whether to publish the judgment with A’s name redacted, in light of no clear contemporary custom to this effect exercised by the courts.  

The Poms from about the the 1800s were happily hiding the names of practitioners who were sent to the Bureau de Spank – to “protect both their reputations and the profession’s”.  

In A’s case, Nicholson was sympathetic to the lawyer’s personal circumstances. HH Honour thought considerations of the lawyer’s mental health and the reputation of his practice carried more weight than any harm to his clients or the public by the redaction of his name. 

On the other hand: 

“The main argument against publishing in a redacted form is that the practitioner is the subject of disciplinary proceedings and has acknowledged conduct which prima facie might give rise to adverse findings in this respect. 

Further, the practitioner has divulged as an explanation for his long standing course of conduct in this respect and as mitigatory of his culpability, long standing mental health problems.” 

The mental health problems are being treated and seem to be under control. 

Nonetheless, the final determination of the complaints about his conduct have not been made – hence the well-worn justification for his name to be hidden from the world-at-large.

Nicholson thinks that the public’s right to know remains intact by virtue of s.131 of the Supreme Court Act and s.89C of the Legal Practitioners Act – should any of A’s clients get wind of what is going on and want to dig further. 

Members of the public who have experience with extracting information from court registries and the like, will have a different view about the right to know remaining intact

The public’s option of finding out more is curtailed often on basis that the practitioner will be “embarrassed”. 

Artemus Jones wrote recently about the secrecy racket perpetrated by the ACT Supreme Court.  

Frankly, it doesn’t help the reputation of the profession for the courts to be handing out special treats and favours not invariably available to everyone else.