THE NEW SOUTH WALES BAR ASSOCIATION v SMITH [1991] NSWCA 213

THE NEW SOUTH WALES BAR ASSOCIATION v SMITH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY and MEAGHER JJA 29 and 30 January, | March 1991, 9 May 1991

[1991] NSWCA 213

LEGAL PRACTITIONERS — barrister — professional misconduct what constitutes — appearing for a member of the public in a court without the intervention of an instructing solicitor constitutes professional misconduct.

LEGAL PRACTITIONERS — barrister — professional misconduct what constitutes — lying to a court constitutes professional misconduct.

LEGAL PRACTITIONERS — barrister — disciplinary proceedings lack of candour (a fortiori, telling lies) by a barrister in the conduct of his or her case before the Court of Appeal must be taken into account in judging the extent of the moral incapacity against which protection is required — The New South Wales Bar Association v Kalaf, Court of Appeal, 11 October 1989, unreported applied.

LEGAL PRACTITIONERS — barrister — professional misconduct Legal Profession Act 1987 does not apply where conduct impugned and the complaints were made before 1 January 1988 when the Act came into force. HELD (by Mahoney and Meagher JJA, Samuels JA dissenting), that the opponent's name be removed from the roll of barristers.

Samuels JA By its summons filed on 17 August 1988 the claimant seeks declarations that the opponent has been guilty of professional misconduct and is not a fit and proper person to practise as a barrister, and an order that his name be struck off the roll or, alternatively, that he be suspended from practice. The particulars charged are that at the Penrith Local Court on 11 November 1986 the opponent sought to appear for "Mr A Knight without the intervention of an instructing solicitor", and deliberately misled the Court by informing it "that he was instructed by Malcolm McDonald and Co when in fact he was not so instructed", and in certain other ancillary respects.