Queensland Law Society

Council of the New South Wales Bar Association v CAP Biscoe [2017] NSWCA 286

Council of the New South Wales Bar Association v CAP Biscoe [2017] NSWCA 286

Catchwords

Legal Profession – barrister continuing to practise without renewing practising certificate – barrister made false and misleading statements to clients, solicitors, courts and legal aid – application in inherent jurisdiction to remove the barrister from the roll – court satisfied of unfitness to practise

Executive Summary

The Council of the New South Wales Bar Association (‘the Applicant’), commenced disciplinary proceedings against B (‘the Respondent’), seeking orders in the Court’s inherent jurisdiction that:

a)    the Respondent’s name be removed from the Roll;

b)    declare that he is guilty of professional misconduct; and

c)     declare that he is not a person of good fame and character and is not a fit and proper person to remain on the Roll.[1]

The Applicant relied on numerous allegations including that the Respondent:

  1. engaged in legal practice without holding a practising certificate or a professional indemnity insurance policy;
  2. sought and received payment for legal work performed during that time;
  3. made false and misleading statements to proposed professional indemnity insurer, the Bar Council, a Local Court, and the Law Society of New South Wales; and
  4. failed to answer a section 95 Uniform Law Notice.

The Court ordered that:

  1. the Respondent has been guilty of professional misconduct;
  2. the Respondent is not a person of good fame and character and is not a fit and proper person to remain on the roll of Australian lawyers maintained by the Court pursuant to section 22 of the Legal Profession Uniform Law;
  3. the name of the Respondent be removed from the roll;
  4. the Respondent pay the costs of the Applicant; and
  5. the Applicant serve on the Respondent a copy of this judgement.[2]

Background

In 2002, the Respondent was admitted as a legal practitioner in New South Wales.

He held a barrister’s practising certificate from October 2005 until June 2015.

The Respondent had been the subject of a complaint made by a former client in December 2014.

In April 2015, the Respondent had failed to respond to the complaint and provided the Office of the Legal Services Commissioner with reasons including health and subsequent change of address for this failure.[3]

In June 2015, the Complaint was forwarded to the Applicant and he was also served with a notice under s 60 of the Legal Profession Act 2004 to which he was required to respond by July 2015.[4]

By June 2015, the Respondent’s practising certificate had expired. In July 2015, the Applicant sent correspondence to the Respondent advising that he needed to complete and lodge a practising certificate application, and stated that in the interim he must not practise, including by doing chamber work.[5] This letter was sent to the Respondent’s chambers, however, was returned to the Applicant after being forwarded to another address.

The Applicant was advised that in July 2015, professional indemnity insurance for the Respondent had been obtained.

In August 2015, the Applicant became aware that the Respondent had appeared for clients in the Local Court on two occasions. The Applicant subsequently sent correspondence to the Respondent advising that:

  • he did not hold a practising certificate;
  • that the Applicant was aware of his appearances in the Local Court; and
  • notified him of his need to apply for a new practising certificate.[6]

The next morning, a Certification Officer from the Bar Association spoke with the Respondent in relation to his need to reapply.

In September 2015, the Applicant received a complaint from the NSW Police in relation to the appearance work in criminal matters that the Respondent had undertaken in August 2015[7] and in the same month, the Respondent delivered an application for a practising certificate to the Applicant. The Respondent was not truthful in his application in that it:

a)    failed to include the required fee;

b)    failed to disclose all of the appearances he had done in the interim; and

c)     failed to identify all invoices paid to the Respondent for that work performed.[8]

In October 2015, the Applicant served a s 95 Uniform Law notice requiring production of a range of documents and information in relation to, among other things, his dealings with his professional indemnity insurer and details of his practice since July 2015.[9] The Respondent failed to respond to the notice and continued to undertake legal work.

In November 2015, the Law Society of New South Wales (‘the Law Society’) received an application for the grant of a solicitor’s practising certificate from the Respondent. The application did not disclose the pending application for a practising certificate with the Bar Association, nor did it disclose any of the matters pertaining to rule 13 of the Uniform General Rules.

In 2016, on the application form the Respondent indicated that he was not “the subject of any disciplinary proceedings or investigations” and that he was not “aware of any circumstances which might give rise to a claim and/or disciplinary investigation or proceeding”.[10]

The Respondent continued to undertake paid legal work on behalf of a client in a criminal matter from June 2015 to March 2016 without a practising certificate.[11]

Issue considered

The Court noted that as a result of the Respondent’s non-participation in the proceedings, the Court lacked the benefit of any explanation for the “flagrant and sustained breaches of the Respondent’s legal and ethical obligations”.[12]

The Court did infer that some of the breaches may have been associated with psychological and financial pressures that the Respondent may have been experiencing at the time[13] and prior to the conduct alleged, the Respondent was a barrister in good standing.

Ultimately, the Court concluded that the conduct involved a conscious misrepresentation of the truth to the courts and tribunal in which the Respondent appeared, to his opponents, to his clients, and to Legal Aid.[14]

The Court considered that the Respondent must have known:

  1. the importance of maintaining a current practising certificate and an undetermined application did not entitled him to practice;
  2. that he lacked professional indemnity insurance when he continued to appear in July 2015;
  3. the falseness of his statement to the Local Court regarding a pending application with the Law Society; and
  4. that most importantly, he was taking substantial payment from a client, when he was not entitled to do so, and was committing an offence by representing that he was a barrister.[15]

The Court referred to the decision of Council of the Law Society of New South Wales v Kinchington,[16] whereby the Court held that “[F]itness to practise law carries with it as an essential characteristic, that the person concerned exhibit honest and integrity”.[17]

The Court held that the Respondent’s conduct was comparable to the description provided by the Court in Council of the New South Wales Bar Association v Costigan,[18] in that “the respondent’s conduct would reasonably regarded as ‘disgraceful or dishonourable’ by his peers. He would not be regarded as a person of good fame and character for the purpose of admission, both because of the nature of his conduct in misleading courts and engaging in legal practice and holding himself out as a barrister when he did not have a current practising certificate, and his improper dealing with client moneys advanced on account of legal costs for legal services to be provided”.[19]

The Court concluded that in light the Respondent’s repeated and dishonest conduct, the Court made the orders sought by the Applicant.

 

Adriana Tate

Ethics Clerk, QLS Ethics Centre

As approved by Grace van Baarle, Manager, Ethics Solicitor, QLS Ethics Centre



[1] Council of the New South Wales Bar Association v Biscoe [2017] NSWCA 286, [2].

[2] Ibid [50].

[3] Ibid [12].

[4] Ibid [13].

[5] Ibid [14].

[6] Ibid [16].

[7] Ibid [18].

[8] Ibid [23]-[26].

[9] Ibid [27].  

[10] Ibid [15].  

[11] Ibid [33], [39].

[12] Ibid [40].

[13] Ibid [41].

[14] Ibid [43].

[15] Ibid [43]-[46].

[16] [2017] NSWCA 278.

[17] Ibid [28].

[18] [2013] NSWCA 407.

[19] Ibid [120].