New South Wales Bar Association v Harrison

[2001] NSWADT 213

CITATION:	New South Wales Bar Association -v- Harrison [2001] NSWADT 213
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association RESPONDENT Thomas Edward Harrison
FILE NUMBER:	012010
HEARING DATES:	25/10/2001
SUBMISSIONS CLOSED:	10/25/2001
DATE OF DECISION:	12/12/2001
BEFORE:	Officer D QC - Judicial Member; Hale S - Judicial Member; Klika D - Member
APPLICATION:	Professional Misconduct - practice as a Solicitor/Barrister without a practising certificate
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Mee Ling v. Law Society of New South Wales (1974) 1 NSWLR 490 Incorporated Law Institute of New South Wales v. Meagher (1909) 9 CLR 655 he Council of New South Wales Law Society v. Foreman (1994) 34 NSWLR 408
REPRESENTATION:	APPLICANT G McNally, Barrister RESPONDENT In person
ORDERS:	1. That the name of Thomas Edward Harrison be removed from the Roll of Legal Practitioners in New South Wales; 2. That Thomas Edward Harrison pay the costs of the Applicant of and incidental to these proceedings.

Background
1 Thomas Edward Harrison (the Barrister) was admitted as a Barrister in New South Wales on 25 June 1976.

2 Following its investigation of a complaint made under Part 10 of the Legal Profession Act, the Council of the New South Wales Bar Association by information dated 2 May 2001 alleged that the Barrister was guilty of professional misconduct and/or unsatisfactory professional conduct in that he did in breach of s.25(1) of the Legal Profession Act 1987, practise as a Barrister from 1 July 1995 to 30 June 2000 without being the holder of a current Practising Certificate and, that in breach of s.25(2) of the Act, he held himself out to be a Barrister between those dates without being the holder of a current Practising Certificate.

3 By his reply filed on 1 June, the Barrister admitted both allegations.

4 At the Tribunal hearing in Sydney on 25 October 2001, the Barrister conceded that his admitted breaches of ss. 25(1) and 25(2) were contraventions that had taken place “wilfully and without reasonable excuse” within the meaning of s. 25(4) and that he was therefore, by reason of that section, guilty of professional misconduct.

5 The issue accordingly for determination by the Tribunal and with which the hearing was primarily concerned was, what orders, if any, ought the Tribunal to make consequent upon the admitted professional misconduct.

The evidence
6 Between 1 July 1995 and 30 June 2000, the Barrister was not the holder of a current Practising Certificate. During that period of time, he did not have any professional indemnity insurance cover (except for a period from 29th March 1996 to 24 April 1996 when his premium cheque was dishonoured).

7 During the said period, the Barrister received instructions from two solicitors in private practice, one in Sydney and one at Ambarvale. The Barrister, so instructed, acted for some twenty clients. The matters involved numerous appearances in the District Court at Campbelltown, in the City and at Liverpool. The Barrister also appeared in the Family Court and in the Local Court. The matters included criminal trials and family law matters. The Barrister, so instructed, also acted on a mediation. Many of the matters where the Barrister so acted involved hearings that extended for more than one day and indeed several of the matters involved hearings of four to five days. He so acted in October 1995 and from June 1996 to June 2000 it was on a regular (although not continual) basis.

8 In an Affidavit sworn in these proceedings, the Barrister acknowledges that on different occasions when the two solicitors approached him to undertake professional work as a Barrister he did not tell either of them that he no longer held a Practising Certificate. He says that there was no promise of on-going work from either of them. He says that when those solicitors offered him work “I formed an intention to apply for a Practising Certificate if it seemed likely that I could resume a reasonably busy practice at the Bar. This situation never became clearly established”. The Barrister says that on two occasions he asked for and received from the New South Wales Bar Association application forms for a Practising Certificate but that on each occasion he could not bring himself to address the application forms. He says that he is ashamed of his behaviour.

9 In a letter to the New South Wales Bar Association dated 27 September 2000, the Barrister undertook to the Bar Council not to practise. In a further letter of 10 January 2001 the Barrister confirmed that the undertaking to the Bar Council not to practise was unqualified and of a continuing nature. At the hearing before the Tribunal, the Barrister reiterated that undertaking.

The submissions
10 The Bar Association submitted that in light of the above evidence, the extended period over which the breaches took place, their frequency, and the admissions and evidence that the breaches were wilful and without reasonable excuse, the Barrister’s name ought be removed from the role. The Tribunal was referred to Mee Ling v. Law Society of New South Wales (1974) 1 NSWLR 490 where the Court of Appeal dealt with a solicitor who practised without a Practising Certificate under the Legal Practitioners Act 1898. Mr. Justice Hardie at 497 said “In one sense the offence is very serious. It is necessary for the protection of the public and of the profession that the section be obeyed …”. See also Mr. Justice Reynolds at 500.

11 The Barrister submitted that the public would be sufficiently protected by the undertaking, which he had given, not to practise. He submitted that such an undertaking had the same practical effect as the orders sought by the Bar Association. The Tribunal’s attention, in those submissions, was drawn to the remarks made by one of the solicitors in a letter to the New South Wales Bar Association dated 9 October where he spoke highly of the Barrister, his behaviour and his professional work.

Conclusion
12 There is no doubt that one of the primary object of the disciplinary jurisdiction is the protection of the public rather than the punishment of the legal practitioner. However, as has been frequently pointed out, the protection of the public includes protection against similar defaults by other practitioners and therefore that protection has the purpose of publicly marking the seriousness of the practitioner’s conduct. See, for example, Incorporated Law Institute of New South Wales v. Meagher (1909) 9 CLR 655 at 681, The Council of New South Wales Law Society v. Foreman (1994) 34 NSWLR 408. As Mr. Justice Giles said in Foreman supra, an element of deterrence is “an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or likely put aside but will be appropriately dealt with”.

13 It is the Tribunal’s finding that acceptance of the Barrister’s undertaking is not the appropriate response to his behaviour. The Tribunal finds that the only appropriate response is to order that his name be removed from the role of Legal Practitioners. The Barrister’s conduct extended over a period of some five years. For most of that period there were continued breaches in respect of many clients and in many different courts. The conduct constituted a wilful contravention which the Barrister acknowledges was without reasonable excuse. On a couple of occasions he obtained the requisite forms from the Bar Association but he did not apply for a Practising Certificate. He apparently had formed the view that his practise had not become sufficiently reasonably busy to, in his mind, warrant obtaining the Certificate. The conduct amounted, in the Tribunal’s opinion, to an intentional and conscious breach of his statutory obligations. During the admitted period of time he held no professional indemnity insurance. Such statutory obligation is a requirement for the protection of members of the public. By his conduct the Barrister falsely represented to the clients and to his instructing solicitors that he was entitled to practise and that he held such insurance. By appearing in the courts in which he did the Barrister falsely represented to those courts that he was entitled to practise and to appear before them. In the Tribunal’s opinion, acceptance of the Barrister’s undertaking is not adequate to properly protect the public, the profession and the courts from such behaviour and it does not sufficiently “mark” the seriousness of such behaviour.

14 The Tribunal:

(1) ORDERS that the name of Thomas Edward Harrison be removed from the Roll of Legal Practitioners in New South Wales.
(2) ORDERS that Thomas Edward Harrison pay the costs of the Applicant of and incident to these proceedings.