Appeal Court considers what constitutes professional misconduct

Appeal Court considers what constitutes professional misconduct

In an unusual case, the NSW Court of Appeal has examined what constitutes professional misconduct and reviewed what should be the appropriate penalties imposed against a person found to have engaged in such conduct.

The case involved a Sydney barrister, ‘EFA’ (a pseudonym), who attended a dinner on 21 July 2017 marking the conclusion of a conference of barrister’s clerks. Just before 11 pm, EFA, in a state of intoxication, approached a table where ‘A’ (a male friend) and ‘H’ (a female assistant clerk) were sitting.

EFA engaged A in a ritualised greeting that, in part, parodied oral sex. It was alleged that shortly after, EFA moved closer to H, stood behind her, and placed his left hand on the back of her head. He then took hold of the back of H’s head, moved her head “to and from his crotch area,” and said words to the effect of “suck my d*ck”.

EFA denied the allegations. The events were captured on two closed-circuit television cameras, neither of which had sound recording capacity.

The Council of the NSW Bar Association (the Council) filed an application in the NSW Civil and Administrative Tribunal (the Tribunal) on 3 December 2019, seeking a finding that EFA was guilty of unsatisfactory professional conduct, professional misconduct, and sought an order that he pay the Council’s costs for the proceedings.

The Tribunal made a Stage 1 finding on 4 March 2021 that EFA’s conduct did not amount to professional misconduct but instead amounted to unsatisfactory professional conduct. The decision was based on their conclusion that the only allegation that could be substantiated against EFA was that he had said the words “suck my d*ck”.

Subsequently, the Tribunal made a Stage 2 finding on 18 June 2021, formally reprimanding EFA and ordering him to pay the Council’s costs. The Tribunal declined to impose a fine or order that he undertakes a course of counselling.

The Council appealed both of the Tribunal’s decisions.

The appeal was heard before Chief Justice Tom Bathurst, Judge of Appeal Mark Leeming, and Acting Judge of Appeal, Carolyn Simpson.

In their collective view, the findings of the Tribunal were sound and defensible based upon the evidence presented. They agreed that the Tribunal was correct in determining that only one allegation could be substantiated against EFA.

They also acknowledged the Tribunal’s characterisation of EFA’s conduct as “poorly judged, vulgar and inappropriate” but also agreed that the Tribunal’s finding that the conduct did not mean that he was not a fit and proper person to engage in legal practice.

The Appeal Court did not believe that the substantiated conduct was akin to other cases where legal professionals had been struck off for such offences as supplying illegal drugs or being convicted of manslaughter having caused the death of a person whilst driving intoxicated.

With regard to the lack of a financial penalty being imposed, the Appeal Court noted that EFA had suffered a financial penalty as his insurer had significantly increased his yearly premiums as a result of the legal costs he incurred initially defending this case.

Consequently, the appeal was dismissed with costs awarded.

Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 (21 December 2021)

For questions about professional misconduct, unacceptable behaviour, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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