New South Wales Bar Association v Brezniak

[2004] NSWADT 154

CITATION:	New South Wales Bar Association v Brezniak [2004] NSWADT 154
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association
FILE NUMBER:	032023
HEARING DATES:	17/03/2004
SUBMISSIONS CLOSED:	05/28/2004
DATE OF DECISION:	07/28/2004
BEFORE:	Nader J QC - ADCJ (Deputy President); Norton S SC - Judicial Member; Kennedy A - Non Judicial Member
APPLICATION:	Professional Misconduct - breach of Bar Rule - Unsatisfactory Professional Conduct - breach of Bar Rule
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987
CASES CITED:	Clyne v New South Wales Bar Association (160104 CLR 186. New South Wales Bar Association v Tedeschi (No. 2) [2003] NSW ADT 201. Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201. R v Issa [2002] NSW CCA 206.
REPRESENTATION:	APPLICANT C Adamson SC RESPONDENT P Brereton SC
ORDERS:	1.The Respondent is found guilty of unsatisfactory professional conduct.; 2.The Respondent has 21 days from the date of receiving this decision to file evidence and make submissions as to outcome.; 3.The Applicant has 14 days thereafter to make any further submission as to outcome.

The Information presented against the Respondent

1 On 24 October 2003, the Council of the Bar Association of New South Wales, as applicant, filed in the Tribunal an information containing two complaints under Part 10 of the Legal Profession Act, 1987 (“the Act”) against Daniel James Brezniak, the Respondent.

2 The Applicant alleges that the Respondent, a legal practitioner within the meaning of Section 128 of the Act, has been guilty of professional misconduct and/or unsatisfactory professional conduct. In the second schedule to the information it requests the Tribunal to:

1. Extend the time for the filing of the information to 24 October 2003,

2. To find the Respondent guilty of professional misconduct and/or unsatisfactory professional conduct,

3. To make any one or more of the orders set forth in Section 171C(1) of the Act as the Tribunal considers appropriate.

3 The two grounds upon which the Applicant seeks a finding of professional misconduct and/or unsatisfactory professional conduct are set out in the first schedule to the information. They are as follows:

1. The Respondent failed to comply with the requirements of Rule 22 of the New South Wales Barristers Rules (“the Rules”).

2. The Respondent failed to comply with the requirements of Rule 35 of the Rules.

4 The particulars to Ground 1 are as follows:

“(a) On or prior to 27 March 2002 the Respondent prepared Grounds of Appeal and submissions of the appellant in proceedings 60338 of 2000 in the Court of Criminal Appeal (the Appeal).

(b) The submissions prepared by the Respondent in support of the Grounds of Appeal contained, in relation to Ground 2, and at paragraph (C), the following statement (the statement):

“… in making submissions upon a plea of guilty counsel for the Appellant …

(c) omitted, contrary to the instructions of the Appellant, to call any evidence of, and make submissions concerning, the prior good character and reputation of the appellant.”

(c) The reference in the statement to “counsel for the Appellant” was a reference to Mr Richard James Button of counsel, who appeared on behalf of Mr Mohammed Issa (the Appellant) on sentence in the District Court of New South Wales at Sydney on 1 June 2000 (the sentencing hearing).

(d) The statement was to a court and was misleading in that, contrary to the statement, Mr Button had, in the sentencing hearing, tendered evidence and made submissions concerning the prior good character and reputation of Mr Issa.

(e) The Respondent was aware, or should have become aware, by a date not later than:

(i) 15 March 2002,

(ii) 27 March 2002,

(iii) 14 April 2002 or

(iv) 8 May 2002

that the statement was misleading.

(f) The Respondent did not take any, or in the alternative, all, necessary steps to correct the statement at all, or in the alternative, as soon as possible after becoming aware that the statement was misleading.

5 The particulars with respect to Ground 2 are as follows:

1. The Applicant repeats the Particulars to paragraph 1.

2. The statement contained in allegation against Mr Button, namely that in representing Mr Issa at the sentencing hearing he omitted, contrary to the instructions of Mr Issa, to call any evidence of, and make submissions concerning, the prior good character and reputation of Mr Issa (the allegation).

3. The allegation was made on and from 27 March 2002.

4. The allegation was continued up to, and throughout, the hearing of the appeal.

5. As at 27 March 2002, when he dispatched the Grounds of Appeal and submission in support thereof, the Respondent had access to the affidavit of Mr Issa sworn 15 March 2002, which did not provide a basis for the statement or the allegation.

6. On a date not later than the date of the hearing of the appeal, 8 May 2002, the Respondent had access to the following documents:

(i) the affidavit of Mr Issa sworn 15 March 2002;

(ii) the transcript of the sentencing hearing;

(iii) the affidavit of Ms Kay Fleischmann sworn 14 April 2002.

7. The allegation was not reasonably justified by the material already available to the Respondent as at 27 March 2002 and throughout the period up to and during the hearing of the Appeal.

8. The allegation was inconsistent with, and contradicted by, the documents referred to in 2(f)(ii) and (f)(iii) above.

6 In his reply filed on 16 December 2003 the Respondent denies that he was guilty of professional misconduct. The Respondent admits, however, that his conduct was “or at least is capable of being properly construed as, amounting to unsatisfactory professional conduct”.

7 With respect to Ground 1 of the information the Respondent denied that he failed to comply with the requirements of Rule 22 and further states that he did take such steps as were necessary to correct the misleading statement by way of his oral submissions to the Court of Criminal Appeal on 8 May 2000. The Respondent urges the Tribunal to find that such failure as there was to comply with Rule 22 was “technical in nature” and did not constitute either unsatisfactory professional conduct or professional misconduct.

8 With respect to Ground 2 it is said to be admitted however the Respondent relies on the circumstances of the want of compliance being such that the conduct should not be regarded as professional misconduct or unsatisfactory professional conduct.

9 With respect to Ground 1 certain of the particulars are admitted and there is a partial denial of others as follows:

1. Admitted.

2. Admitted.

3. Admitted.

4. In so far as the particulars alleged at sub-paragraph (d) refer to Mr Button having “tendered evidence”, such allegations are not admitted. In so far as the allegations particularised refer to Mr Button having “made submissions” the allegations are admitted. The Respondent admits that the statement was to a Court and as to the reference to “submissions” was misleading, or capable of being misleading but says there was no intention to mislead or to make a statement which was incorrect.

5. (i)Denied.

(ii) Denied.

(iii) The Respondent believes the relevant date is a date after 17 April 2002. Subject thereto the Respondent does not admit that he was aware, but does admit that he should have become aware.

(iv) Admitted.

6. Denied. The Respondent says that he took necessary steps on 8 May 2002.

10 With respect to the particulars provided to Ground 2 again there are some admissions as follows:

1. The Respondent repeats the answers to the particulars at paragraph 1.

2. Admitted.

3. Admitted.

4. The Respondent admits that the allegation was continued up to the hearing of the appeal but denies that the allegation was continued throughout the hearing of the appeal.

5. With respect to that part of the submission complained of which asserted that Mr Button omitted, contrary to the instructions of Mr Issa, to “make submissions …” admitted. Otherwise, not admitted.

6. Admitted, except that the affidavit of Ms K Fleischmann was sworn 17 April 2002 not 14 April 2002.

7. In so far as the allegation relates to the Respondent’s submission that Mr Button had failed to “make submissions …” admitted. In so far as the allegation refers to the submission that Mr Button had “omitted … to call any evidence …” not admitted.

8. As to the allegation that Mr Button “… omitted … to … make submission …” admitted. As to the allegation that Mr Button “… omitted, contrary to the instructions of Mr Issa, to call any evidence …” not admitted.

11 As noted above the first order sought in the second schedule of the information was an order extending the time for filing of the information to 24 October 2003. It is common ground that this order was sought because of the decision of this Tribunal in New South Wales Bar Association v de Robillard [2004] NSW ADT 45. In support of that application the Applicant read the affidavit of Phillip Selth sworn 12 March 2003 and that of Richard Mark Hamwood sworn 12 March 2003. Counsel appearing for the Respondent accepted the explanation provided by the Applicant as adequate and did not oppose the granting of the extension sought (T6.20).

12 In light of the evidence filed and the concession made by counsel for the Respondent the Tribunal makes the order sought in paragraph (a) of Schedule 2 extending the time for filing of the information to 24 October 2003.

13 Similarly counsel for the Respondent conceded that the provisions of Part 10 of the Act had been complied with sufficiently to give the Tribunal jurisdiction to hear the information (TP29).

Evidence

14 With respect to the information the Applicant relied on the following evidence:

The affidavit of Philip Allen Selth sworn 23 October 2003 which contained some 27 annexures and exhibit A being the judgment of Williams DCJ in the sentencing proceedings of Mr Issa on 1 June 2000.
The Respondent read an affidavit sworn by himself on 8 January 2004 and an affidavit of Mohammed Issa sworn 7 January 2004. The Respondent was called and was cross examined by counsel for the Applicant.

15 The matter had been allocated only one day and it became obvious that submissions could not be made orally within the time allowed. It was therefore agreed that a transcript of the proceedings would be obtained by the Applicant and that both parties would make written submissions. The Applicant filed written submissions on 16 March 2004 and the Respondent filed submissions on 28 May 2004. The Registrar of the Tribunal then contacted the Applicant and was advised that the Applicant did not wish to file any submissions in reply nor to make oral submissions on the principal matter but would seek to make submissions in due course on penalty. The Registrar also contacted those who represent the Respondent and was informed that they did not wish to make oral submissions and were content to rely upon their written submissions.

16 The Tribunal has been provided with a typed transcript of the proceedings of 7 March 2004. The Tribunal notes that from pages 111 to 116 Ms Adamson, who appeared for the Applicant, is wrongly identified as being Ms Norton.

New South Wales Barristers Rules

17 Rule 22 - Frankness in Court

A barrister must take all necessary steps to correct any misleading statement made by the barrister to a court as soon as possible after the barrister becomes aware that the statement was misleading.

18 Rule 35 - Responsible use of court process and privilege

A barrister must, when exercising the forensic judgments called for throughout the case, take care to ensure that decisions by the barrister or on the barrister’s advice to invoke the coercive powers of a court or to make allegations or suggestions under privilege against any person:

(a) are reasonably justified by the material already available to the barrister;

(b) are appropriate for the robust advancement of the client’s case on its merits;

(c) are not made principally in order to harass or embarrass the person; and

(d) are not made principally in order to gain some collateral advantage for the client or the barrister or the instructing solicitor out of court.

19 Section 57A of the Legal Profession Act, 1987 provides that the Bar Council may make rules for or with respect to practice as a barrister. Section 57D provides that the Barristers Rules are binding on barristers but that:

“(4) Failure to comply with any such rule does not of itself amount to a breach of this Act. However, failure to comply is capable of being professional misconduct or unsatisfactory professional conduct.”

20 Professional misconduct is defined in Section 127 of the Act to include:

(a) Unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence …

(d) A contravention of a provision of this Act or regulations being a contravention that is declared by the regulations to be professional misconduct”.

21 For the purposes of part 10 of the Act unsatisfactory professional conduct is said to “include conduct, whether consisting of an act or omission, occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner”.

22 Submissions made by the Applicant do not refer to the statutory definition. That definition is not an exclusive one. Guidance as to what amounts to professional misconduct is provided by the Court of Appeal decision in Prothonotary of the Supreme Court of New South Wales v Costello (1984) 3 NSWLR 201. It was held in that case that professional misconduct on the part of a barrister consists in behaviour on the part of the barrister which would reasonably be regarded as disgraceful and dishonourable by his professional brethren of good repute and competency. For the conduct of a barrister to amount to professional misconduct it need not be such as to interfere with the proper administration of justice. It has also been held that there is a subjective element involved and that the question as to whether a lawyer’s conduct is professional misconduct should not be determined solely by objective consideration (NSW Bar Association v Tedeschi (No. 2) [2003] NSW ADT 201).

23 As noted above the reply filed by the Respondent conceded that his conduct was at least capable of being construed as amounting to unsatisfactory professional conduct. In written submissions, however, it is claimed that the conduct of the Respondent “is a case of professional misconduct or nothing” (paragraph 3).

Chronology of events

24 Substantial admissions have been made by the Respondent in his reply. The questions in dispute revolve around what was meant by the words complained of in the written submissions and whether these words offend either Rule 22 or Rule 35. The answer to those questions depend at least in part on what information was available to the Respondent and when that information became available.

25 These proceedings relate to a complaint dated 30 May 2002 made by Mr Richard James Button (“the Complainant”) to the Applicant which was referred to Mr Stephen Mark, the Legal Services Commissioner pursuant to Section 135 of the Legal Profession Act who in turn referred the complaint to the Applicant for investigation pursuant to Section 141 of the Act. The complaint relates to the conduct of the Respondent in the course of proceedings in the Court of Criminal Appeal in a matter of R v Issa No. 60338 of 2000.

26 It may assist an understanding of these reasons if a chronology of the main events and evidence is given.

27 The Respondent was admitted as a solicitor on 14 July 1978 and commenced practice at the bar on 8 March 1992. He was granted an unrestricted practising certificate on 29 April 1993.

28 On 1 June 2000 Mr Issa who was then represented by Mr Button pleaded guilty to two offences and was sentenced by Williams DCJ. The transcript of the sentence proceedings is contained at PAS1 page 8 to 16. Of relevance to the present proceedings is the tender by Mr Button of approximately six references out of what he refers to as a plethora of material available. Mr Button also informed the judge “All of the persons present in court are here in support of the prisoner. If Your Honour or my learned friend seeks to have any of the deponees cross examined, they will be available”.

21. The decision of Williams DCJ is exhibit A. Of relevance is the judge’s comment that he has received a very large number of references from various people who speak highly of Mr Issa (page 6). The judge notes that Mr Issa was a person of no prior convictions and that he takes into account the various matters set out in the references (page 13).

22. On 8 May 2001 the Respondent provided an advice to the Legal Aid Commission concerning the prospects of an appeal on behalf of Mr Issa. That advice is annexure A to the Respondent’s affidavit of 8 January 2004. It is noted in that affidavit that the Respondent had had approximately three meetings with Mr Issa to obtain instructions. It is also noted that Mr Issa had two complaints the first was that he should not have pleaded guilty and the second was that the sentence was too severe. It is noted Mr Issa did not give evidence at the sentence proceedings (page 3). The advice concluded with a request by the Respondent that counsel for Mr Issa be contacted and invited to comment on “the claims which Mr Issa makes”.

29 On 16 July 2001 Mr Button provided a statement dealing in particular with the claim that he placed pressure on Mr Issa to plead guilty. That statement is annexed to the affidavit of the Respondent (page 26 to 35). The statement does not deal with the calling of character evidence or the making of submissions as to character.

30 On 15 March 2002 Mr Issa swore an affidavit which had been settled by the Respondent from notes taken during visits by the Respondent to the jail (PAS1 35 to 44). Of relevance to the present proceedings is the allegation that Mr Issa asked Mr Button to call evidence “from my many friends to attest to my character” (P41) but that none of these witnesses were called. Mr Issa also notes that the address on sentence took 20 minutes and did not refer to his trusting and loyal personality (PAS1 42).

31 That affidavit annexed what is described as a summary of submissions which was prepared by Mr Button and handed to the judge (PAS1 46 to 48). It appears that the version handed to the judge contained only type material and not the handwritten material. The outline of submissions referred to “complete absence of prior criminality” and “favourable evidence with regard to character of the prisoner”.

32 On 27 March 2002 the Respondent transmitted his submissions and Notice of Appeal to the Court of Criminal Appeal. Neither document is dated other than the imprint left by the fax machine. In the grounds of appeal it was alleged that the sentence proceedings miscarried and that the trial judge took insufficient account of the good character of Mr Issa. The submissions the subject of these proceedings is contained under the heading Ground 2 (C) (PAS1 30).

33 The Respondent quotes extensively from the judgment of Williams DCJ in those submissions. It was stated in the submissions that counsel for the Appellant (Mr Button) had not properly prepared for the hearing having inadequately prepared legal and factual submissions.

34 No doubt in response to the matters contained in those submissions an affidavit of Ms Kaye Fleischmann, solicitor for the DPP was sworn on 17 April 2002 PAS6 108). That affidavit annexed a further transcript of the proceedings before Williams DCJ being a transcript of counsel’s addresses (110 to 120). Of relevance to the present proceedings is the comment made by Mr Button that there was “an extraordinary quality and quantity of favourable evidence with regard to this mans character. I dare say rarely seen in the criminal jurisdiction of this court, coming from any number of citizens all of whom, I think a crowd of over 20 people, are prepared to be here today in support of him, in order to demonstrate the high regard in which he is held in his community. People who are prepared to attest that he is a devoted family man, a devout man, indeed prepared to attest that this matter, and this comes through I submit as a flavour in the written material, an almost unbelievable lapse. In other words people can’t reconcile what he has pleaded guilty to with the man they know”.

35 On the same day Mr Button swore an affidavit to be read in the Court of Criminal Appeal (annexure C to the Respondent’s affidavit). In that affidavit Mr Button accepts that he did not call oral evidence as there was no dispute about the unblemished character of the Appellant (P24).

36 The hearing in the Court of Criminal Appeal took place on 8 May 2002 and the Respondent appeared on behalf of Mr Issa. The transcript of that hearing is contained at PAS1A 50 to 94). The following extracts from those submissions are most relevant to the present proceedings:

“Brezniak. It is proposed to proceed in submission in accordance with the grounds of appeal and the submission of the Appellant which have been filed in this court to support the grounds of appeal, with the exception of sub-paragraph (b) of the ground 3; namely the ground the sentence imposed was manifestly excessive. We seek to withdraw that. The submission which would have been made in respect to the claim in relation to the sentence proceedings miscarrying are necessarily modified to the extent of the affidavit of the instructing solicitor attaching a transcript of the evidence. It is additional transcript of the sentencing proceedings.” (T1PAS1A 50).

“The second ground that the Appellant puts forward now looks thin, because of the drafting of the appeal. There has been the provision of the transcript attached to the affidavit of Fleischmann, and all that can now be asserted on behalf of the Appellant is that there was a failure to put in a large number of references, that Mr Issa might have been assisted by the calling of some witnesses to give oral evidence as to his character.” (T41 PAS1A 90).

37 As noted above the complaint was sent to the Applicant by Mr Button on 30 May 2002 (PAS16).

38 On 21 June 2002 the Court of Criminal Appeal delivered its judgment. Levine J with whom Sheller JA agreed noted that there were three grounds to the appeal. The first was that the Appellant was pressured into pleading guilty, the second was that the sentence proceedings miscarried and the third was that the sentence was manifestly excessive.

39 With respect to ground 2 there were noted to be three complaints the third being:

“It was contended that, contrary to the instructions of the Appellant, counsel for him did not make any submissions concerning prior good character and reputation”.

40 The appeal on the first ground failed. With respect to the second ground it was noted:

“The second ground of appeal in effect “collapsed” upon the filing by the Crown of Ms Fleischmann’s affidavit to which was appended the transcript of submissions made by Mr Button before the learned sentencing judge, exhibit B before this court is constituted by what is said to be the material counsel failed to place before His Honour, principally being testimonial in its nature. It is often the case that the minimum of evidence can have maximum of impact and it is often the case that it is, to say the least, undesirable by reason of the risk of counter productivity, for a sentencing judge to be inundated with an overabundance of material that distracts from the point which one or two examples are capable of making.

The contention in support of the ground that the sentencing proceedings miscarried, as originally formulated, were serious in their attack on the conduct and competence of counsel. I feel it necessary to say no more than upon reading the transcript appended to Ms Fleischmann’s affidavit, it is quite clear that counsel made a proper and appropriate submissions as to the role of his client Vissa Mr Hameed and with candour acknowledged the difficulty flowing from the statements made by the Appellant at the time of his arrest as to his knowledge of what was in the package. Further, counsel chose to tender six testimonials and a letter from the Appellant’s wife to the learned sentencing judge in a court room which I gather to have been almost filled with people present to support Mr Issa (quote from Button’s address).

I accept the Crown’s submissions that a consideration of the transcript of the sentencing proceedings and the material placed before the learned sentencing judge exposes counsel’s representation of the Appellant to have been thorough and professional and committed to achieving the best result for his client

The ground of appeal relating to miscarriage of the sentence proceedings fails.”

41 It was noted that the appeal succeeded on the third ground which was strictly technical and the matter was remitted to the District Court for resentence.

42 The Respondent was notified of the complaint and replied to the Applicant by letter dated 10 July 2002 (PAS6). In that reply the Respondent notes that he is not aware of when he first received the affidavit of Ms Fleischmann. The Respondent notes that the submissions were drafted to comply with a timetable and that they were not pursued in the appeal.

43 The Applicant resolved to refer the matter to the Tribunal on 28 August 2003 and the information was filed and served on 24 October 2003. As noted above the reply was filed on 16 December 2003.

44 On 7 January 2004 Mr Issa swore an affidavit filed in this Tribunal. He deposes that his instructions to Mr Brezniak were to the effect that he had some 20 to 25 people who attended court and were ready to give evidence as to his previous good character and reputation. He says he asked Mr Button to call at least some oral character evidence, in particular his wife and himself. He complained that the references had been prepared without legal advice and therefore may not have said all that needed to be said. Mr Issa states that Mr Button refused to call either he or his wife and Mr Issa was still of the opinion that there was a great deal more which could have been said.

45 On 8 January 2004 the Respondent swore an affidavit filed in this Tribunal on the same day. As noted above annexure A to that affidavit was his original advice of 8 May. The Respondent outlines the difficulty that he encountered in establishing a reliable chronology of events because he was unable to obtain documents from Mr Issa’s former solicitors. The Respondent notes he is not sure of the precise date when he drafted the grounds of appeal and submissions but believes it was probably shortly prior to the day they were transmitted to the court, 27 March 2002. The Respondent accepts that at the time of drafting the submissions he was in possession of Mr Issa’s instructions if not his final sworn affidavit. The Respondent also believes he had the annexures to Mr Issa’s affidavit and probably the transcript of the proceedings before Williams DCJ other than the transcript of counsel’s address.

46 The Respondent deposed that he at no time wished to cause any harm to Mr Button or his reputation nor did he seek to mislead the court or obtain any unfair forensic advantage. The Respondent deposes that Mr Issa complained to him of the failure to call witnesses to attest to his character. At paragraph 30 it is stated:

“While I cannot now so long after the event remember precisely what was in my mind at the time I drafted the grounds of appeal and submissions, I do not believe I was seeking to convey to the court there had been no submissions as to prior good character and reputation of the Appellant. My best recollection is that having the notes of Mr Button available to me, as I did, I would have realised that some such submissions were made”.

47 At paragraph 31 he deposes that “The reference to counsel for the Appellant “having omitted contrary to the instructions of the Appellant … to make submissions….” at ground 2C in context is a complaint that counsel did not make submissions on the basis of evidence called concerning the prior good character and reputation of the Appellant. In other words the meaning of the complaint of an admission to make submissions is properly to be seen as governed and qualified by the words which precede it”.

48 The Respondent acknowledged that with the benefit of hindsight the submission was “not well worded and lacks precision”.

49 The Respondent acknowledges that he read the various affidavits in preparation for the court appearance on 8 May. The Respondent says that after reviewing the relevant matters “The view which I formed was that while it was still open to Issa to have a submission made to the Court of Criminal Appeal that it would or may have assisted his case on sentence to have oral evidence adduced, ground 2C had been largely undermined by the affidavits of his former lawyers and the transcript annexed to the affidavit of Ms Fleischmann”. The Respondent did not think of filing revised submissions and grounds of appeal prior to the hearing but he nevertheless appreciated it was appropriate to narrow the ground which he did orally.

50 On 17 March 2004 the Respondent was called and cross examined. He could provide no further details on the actual dates he received the various documents.

51 The Respondent repeated that his understanding of Mr Issa’s complaint was that there had been a failure to call oral evidence from witnesses. He maintained that when he drafted the submissions he intended to say that oral evidence had not been called and therefore submissions had not been made on that evidence (T44.45). He then said “But what happened was, when I read the material from Fleischmann, or attached to the Fleischmann affidavit, there was – there was some words there that struck me as being thoughtfully put, and at the time it seems that the question about separating – making submissions from calling evidence arose. That is why I think I had to make the correction, which I did at the beginning of the proceedings”.

52 The Respondent agreed that although he advised his solicitors to seek some information from Mr Button he did not ask them to obtain any information about submissions made on sentence (T55.35).

53 The Respondent agreed that he saw the statement of Mr Button prior to drafting the submissions (T59.50) and that prior to 15 March 2002 he had the outline of submissions (T67.45). In cross examination the Respondent said he was unable to assume that Mr Button had made submissions on character when he read the document (T68.46). This is somewhat in contrast to the evidence contained in his affidavit although later he seemed to concede that he was aware the submissions had been made (T74.27). The Respondent confirmed he probably had the transcript of the sentence hearing, minor submissions, prior to drafting the Court of Criminal Appeal documents (T71.31).

54 The Respondent on a number of occasions emphasised that it was not his intention in drafting the submissions to make allegations against Mr Button (T76.45, 77.40).

55 The Respondent confirmed that he was aware of the obligation to only put arguments which were properly supported (T78.15) although he was not aware of the precise terms of Rule 35.

56 The Respondent was cross examined to the effect that if the words in the submissions had the meaning he contended, that is there had been a failure to call oral evidence and therefore a failure to address on that oral evidence Ms Fleischmann’s affidavit contained nothing that lead to a need to narrow the grounds. The response was that when he looked at the way it was drafted it “occurred to me for the first time, that it wasn’t clear”. (T90.4). It was put to the Respondent that there was nothing in Ms Fleischmann’s affidavit which could have caused him to rethink the submissions (T92.50) and eventually the Respondent agreed with this proposition (T93.45). It was put to him that he had placed a very artificial construction on the submissions to try and get out of the natural reading of them (T93.50). The Respondent did not agree with this.

57 When pressed the Respondent maintained that it was not until he was preparing to appear at the hearing that “it occurred to me that the ground I had drafted was not clear enough”… and “it occurred to me that I ought to be quite clear that what I was saying was the calling of oral evidence and then I wanted to make sure that I clarified that for the court, that that is what the ground always had meant. And that is why I said at the Court of Criminal Appeal what I did say”. (T95.5).

58 The Respondent eventually agreed that he probably read the affidavit two or three weeks before the hearing in the Court of Criminal Appeal (T101.35). The realisation of possible misleading nature of the submission did not occur to him until approximately the 7th (T102.30).

Submissions

59 The submissions filed on behalf of the Applicant do not make any reference to the statutory definition of professional misconduct nor do they assert that the conduct of the Respondent shows a “substantial or consistent failure to reach reasonable standards of competence and diligence”.

60 It was submitted that Rule 22 required the Respondent to specifically abandon his written submissions and reformulate it in accordance with what was ultimately put “anything short of that fell short of the Respondent’s obligation under Bar Rules 35 and 22”.

61 The submissions maintain that as a matter of “English” the allegations in the written submissions should be read as a suggestion that Mr Button omitted:

“a. to call evidence of good character and reputation; and

b. to make submissions regarding the good character of the accused”.

62 It was submitted that the Respondent ought to have realised that the submission was misleading and at the very least he ought to have taken steps to retract them after he read the affidavit of Ms Fleischmann. It is suggested that the Respondent’s interpretation of the submissions are a reconstruction and a tortured one at that.

63 The submissions filed on behalf of the Respondent are in some ways troubling. As noted above it is submitted “this is a case of professional misconduct or nothing”. This does not sit well with the admissions made in reply that the conduct is capable of amounting to unsatisfactory professional conduct. In support of the submission the Tribunal is referred to the decision of New South Wales Bar Association v Tedeschi (No. 2) in particular paragraphs 193 to 195. Paragraph 3 of the judgment appears to indicate that the Applicant in that matter was seeking “a finding against the barrister of professional misconduct”. The judgment itself does not appear to ever refer to the concept of unsatisfactory professional conduct. The submissions suggest that the conduct complained of concerns ethics rather than competence or diligence.

64 The Respondent’s submissions urged the Tribunal to accept the interpretation placed on the words by the Respondent and his explanation as to when and how he realised that those submissions were open to misinterpretation. Further it is submitted that by making the oral submissions he did in the Court of Criminal Appeal he did all that was reasonably necessary to correct the situation.

65 With respect to Rule 35 it is submitted that it is not really applicable to the present facts as there was no allegation and if there was it was not without reasonable justification. These submissions are in contrast to the terms of the reply which admit that the Respondent failed to comply with the requirements of Rule 35 but rely on the circumstances of the want of compliance to mean that the conduct should not amount to professional misconduct or unsatisfactory professional conduct.

66 The reply did deny that the Respondent had failed to comply with Rule 22 because the Respondent had taken such steps as were necessary to correct the misleading statement in his oral submissions to the Court of Criminal Appeal. This submission is fleshed out in the written submissions plus it is alleged that the potential of the submission to mislead was remote in the extreme.

It is submitted that the correction was sufficient because the Court of Criminal Appeal recognised that the contention as originally formulated had not been maintained.

67 The Tribunal finds that the submission as originally drafted would to most legal practitioners involve a complaint that oral evidence was not called of Mr Issa’s good character and that there was a failure to make any submissions concerning that prior good character.

68 The Tribunal notes that the Respondent was extensively cross examined but maintained at all times that what he meant the submission to convey was that Mr Button had not called oral evidence and not therefore addressed on that oral evidence. The Tribunal accepts that that is what the Respondent meant the submission to convey when he drafted it. The Tribunal finds, however, that that was not the meaning it did in fact convey. Although not determinative of the matter it is clear from the decision of the Court of Criminal Appeal that they took the submission to have a wider meaning.

69 The Tribunal accepts that as a matter of logic it is difficult to see what it is in Ms Fleischmann’s affidavit which could have lead the Respondent to appreciate the need to rephrase the submissions. It is clear from the Respondent’s evidence, however that what the reading of Ms Fleischmann’s affidavit did was to bring to him an awareness that the submission had been less than adequately drafted and in fact had been taken to involve a suggestion that no submission as to character and reputation had been made.

70 It appears this realisation came to the Respondent some time after he had prepared the submissions and after he had received the affidavit of Ms Fleischmann. At that time the matter was listed for hearing in the Court of Criminal Appeal on 8 May and the Tribunal finds that it was reasonable for the Respondent not to file further written submissions but to deal with the problem orally. The Tribunal therefore finds that the Respondent has not failed to comply with the requirements of Rule 22 of the New South Wales Barristers Rules.

71 By a similar process of reasoning the Tribunal accepts that there was a breach of Rule 35 in that the submissions as drafted made a suggestion that Mr Button had not addressed on prior good character and reputation in circumstances when the Respondent was aware that such matters had been referred to in submissions.

72 The Tribunal accepts that that was not what the Respondent meant to convey by the submission but finds that that does not excuse the barrister from the obligation to ensure that allegations or suggestions are not made unless they are reasonably justified. On this basis the error was not one which involved ethics but in fact reflected a lack of diligence on the part of the Respondent. He should have taken more care in the way he expressed his submissions to ensure they did not convey an allegation which was not supported by evidence in his possession. It is therefore not a question of professional misconduct or nothing.

73 The Tribunal finds that the Applicant has failed to establish that the barrister’s conduct was of such a character as to constitute professional misconduct. The Tribunal notes the concession in the reply that it could amount to unsatisfactory professional conduct. As noted by the Court of Criminal Appeal the submissions as originally drafted represented a very serious attack on the conduct and competence of counsel who appeared at the sentencing proceedings. There is no suggestion that the Court of Criminal Appeal was mislead by that attack in fact they found that Mr Button’s submissions had been thorough professional and committed.

74 The Tribunal is of the opinion that the Respondent should have taken more care over the drafting of the submission given the fact that it encapsulated such a serious matter. The Tribunal accepts, however, that the Respondent did not intend the words to convey such a meaning. In the circumstances the Tribunal makes a finding of unsatisfactory professional conduct. There is an obvious need to take care that submissions made to any court are accurate. This is particularly so if the submissions are likely to mislead the court or if they attack or could be seen as attacking the reputation of another person. The Tribunal recognises there is an obligation on counsel to vigorously put forward their client’s case but this obligation is matched by an obligation to take care that submissions are accurate.