Council of the New South Wales Bar Association v EFA (a pseudonym)

The Council of the New South Wales Bar Association appealed a decision of the New South Wales Civil and Administrative Tribunal (NCAT) concerning the conduct of a practising barrister, EFA. The dispute arose from EFA's demeaning and inexcusable conduct towards a female clerk at a dinner, which included allegedly uttering the words "suck my dick." NCAT had found EFA engaged in "unsatisfactory professional conduct" and imposed a formal reprimand. The Bar Association contended that NCAT erred in failing to find that EFA's conduct constituted professional misconduct, arguing it justified a determination that he was not a fit and proper person to engage in legal practice.

The Court of Appeal was required to determine whether NCAT erred in its assessment of the seriousness of EFA's conduct and in imposing only a formal reprimand. Specifically, the court considered whether EFA's conduct, including the alleged utterance, would justify a finding that he was not a fit and proper person to engage in legal practice, as contemplated by section 297 of the *Legal Profession Uniform Law (NSW)*. The court also examined the definition of "professional misconduct" under the *Legal Profession Uniform Law (NSW)* and whether a distinct common law category of professional misconduct existed beyond that incorporated into the statute.

The Court of Appeal reasoned that while EFA's conduct warranted severe condemnation and demonstrated a departure from accepted norms, the objective circumstances of the conduct alone did not necessitate a finding of unfitness. The court noted that unfitness is assessed by considering character alongside the conduct. It found that NCAT had correctly identified EFA's conduct as unsatisfactory professional conduct and that the imposition of a formal reprimand, while lenient, was within the Tribunal's power. The court also clarified that the definition of professional misconduct in section 297 of the *Legal Profession Uniform Law (NSW)* was intended to encompass the traditional common law definition, and no separate common law category of professional misconduct beyond this was established.

The appeal was dismissed with costs. The court also made orders prohibiting the publication of information tending to reveal EFA's identity for 20 years, except for specific purposes related to professional indemnity insurance and regulatory matters.