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. Upon the opening of the appeal counsel for the opponent submitted that following the commencement on | January 1988 of the Legal Profession Act 1987 the only way of determining disciplinary proceedings such as this was according to the procedures laid down in the Act and, in particular, in s134(1)(c) and Division 7 of Ptl10. Accordingly, it was submitted that subject to s125 this Court had no jurisdiction. I add that Mr Pape for the opponent added that although he felt it to be his duty to take the point, he and his client would have preferred nevertheless that the Court should determine the matter. The conduct in question occurred on 11 November 1986. The complaints against the opponent were initiated by letters dated 25 November 1986 from J M Davies and Co and Mr Stewart Torrington of counsel, who were the legal advisers of the informant in the proceedings in question against whom the opponent was appearing. A very long investigation then appears to have taken place and ultimately, on 6 August 1987, the Council of The New South Wales Bar Association resolved to refer the matter to a disciplinary tribunal of the Bar 2 UNREPORTED JUDGMENTS Council, which met and heard the opponent on 23 October 1987 and reported to the Registrar of the Bar Association on 15 February 1988. On 18 February 1988 the Bar Council considered the Tribunal's report and resolved to commence proceedings against the opponent in this Court, although it was not until 17 August 1988 that the claimant filed the summons which is now before us. From this history it appears that the conduct impugned and the complaint both occurred well before the Legal Profession Act came into force; although the initiating process before this Court was filed after that date. The Legal Profession Act contains no transitional provisions which apply to disciplinary investigations by the Bar Association into the conduct of one of its members or any practising barrister which were in train before 1 January 1988. There are, however, in Schedule 8 quite elaborate provisions for continuing the examination of solicitors' trust accounts by investigators and inspectors appointed for that purpose and providing for the completion of any business of the statutory committee that had been commenced but not completed before 1 January 1988. The reason is no doubt that whereas the solicitors had statutory provisions for disciplinary investigation, the Bar had not. There is, I might add, a clause in Schedule 8 - CLI9A - which specifically saves the Solicitors and Barristers Admission and New Examination Rules in force before the commencement date of the Act. The scheme of Division 7 of Ptl0, which deals with the determination of complaints of professional misconduct, is entirely new and, in short, provides that such matters shall be determined by the Legal Profession Disciplinary Tribunal in the first instance, with an appeal pursuant to s164 to the Supreme Court. That appeal, by subs(4) of that section, is to be by way "of a new hearing and fresh evidence." S125 provides: "Nothing in this Part affects the jurisdiction of the Supreme Court with respect to the discipline of barristers and solicitors." We were of the opinion that the Act does not apply where both the conduct impugned and the complaint were made before it came into force on | January 1988. We construed the Act as intending that, in those circumstances, the Court should continue to exercise the jurisdiction derived from the Charter of Justice: see In Re Davis (1947) 75 CLR 409 at 414. In the present case, of course, in addition to the facts that both the conduct in question and the complaint antedated the Act's coming into force, the investigation by the Disciplinary Tribunal (although not its report) had taken place before the material date also. In the alternative, we were of the view that in the circumstances of the case we would have been prepared to exercise jurisdiction under s125 of the Act. For these reasons, we determined that we had jurisdiction to hear the matter as a primary tribunal and we proceeded accordingly. The opponent was admitted to the Bar of New South Wales on 31 May 1968. He remained employed in the office of the Clerk of the Peace until 1974 when he commenced practice at the Bar, from Chalfont Chambers, where he remained until 1980. During that period a solicitor called Malcolm McDonald, then employed by a firm styled John W Hogan of Springwood, briefed him extensively. The two men became friends, and Mr NcDonald at one stage suggested to the opponent that he should leave the Bar and join McDonald in partnership in a firm of solicitors, McDonald intending at that time to go into practice at Penrith, as shortly afterwards he did. The opponent declined that offer, however, and in 1980 accepted an appointment as a Crown prosecutor which he retained until June 1984 when he was forced to resign his position as a result of ill health. He received a URJ THE NEW SOUTH WALES BAR ASSOCIATION v SMITH (Samuels JA) 3 superannuation pension which was inadequate to support him and his family. So, in order to augment that meagre income, he went into chambers as a barrister at Penrith. He was able to do so since medication controlled the condition which had led him to resign from the Attorney General's Department. Mr McDonald knew of his problems, and evidently told the opponent that he would give him such support as he could, not only out of friendship, but for professional reasons, because he believed it desirable that there should be members of the Bar in practice in Penrith, then plainly a developing area. The opponent took chambers in the same building as that in which Mr McDonald had his office, and Mr McDonald did brief him consistently. In 1984 Mr McDonald was a sole practitioner carrying on practice under the name of Malcolm McDonald and Co. In November 1986 he employed a solicitor, Ms Barbara Watson, no other professional staff, two experienced law clerks and a general staff of about twelve. In his evidence before the Disciplinary Tribunal the opponent said that when he commenced practice at Penrith in November 1984 (or thereabouts) he had already been told "by various people" (presumably lay persons) that they would come to him with legal problems if ever the need arose. He continued: "And I was aware that I had to have an instructing solicitor so I went to Malcolm. He was my good friend. I said 'Malcolm, if people come to me and want me to handle matters, how do you feel about me referring them to you to be the solicitor and then you briefing me when whatever arrangements that have to be done are done?' And he said he was quite happy about that arrangement." There was therefore an arrangement between them that the opponent would refer persons involved, or likely to be involved, in litigation to Malcolm McDonald and Co (and he had the same arrangement with other solicitors in Penrith and Windsor), which would take the solicitor's role, with the limitation, however, that the advocate's part was reserved to the opponent. The operation of the arrangement is nicely illustrated by a note written by the opponent to Mr McDonald about seven months after the opponent had commenced practice in Penrith and annexed to Ms Watson's affidavit of 22 December 1989. It reads as follows: "Malcolm - hereunder are matters in which I may need your assistance, as discussed: (a) Police v Edwin Albert Skipper (for hearing at Windsor CPS Wed, 12/6/85 (b) (Police v Terrence John Phillip Williams (Deborah Fitzgibbon (For Mention so far = goods in custody; receiving; unlicensed rider; possession Indian hemp - Penrith PS - Mention on 18/6/85) (c) John Francis Capsanis = Divorce, Family Court Parramatta 3/7/85 RE Smith 716/85". It not only demonstrates the operation of the arrangement, but introduced Mr J F Capsanis whose affairs were to feature prominently in the events which followed. The "Capsanis saga", as the opponent himself described it, involved two marriages, that between John and Noelene Capsanis, and that between John and Dorothy Knight. Mr and Mrs Knight had three children, including a son, Andrew, who was about sixteen years of age at the beginning of 1986. Both marriages 4 UNREPORTED JUDGMENTS were dissolved in 1985, and in August of that year John Capsanis married Dorothy Knight. The Capsanis children remained with John Capsanis, their father, and with their new step-mother Dorothy Capsanis, the former Dorothy Knight; and Andrew Knight, her son, stayed with his mother. The first matter was an application for the dissolution of marriage by Noelene Capsanis against her husband John, and was followed by applications for various orders relating to property, again initiated by Noelene against John, but including cross applications by John against Noelene, also for orders relating to property and for the maintenance of the children of the marriage. There is no doubt but that the opponent was briefed in these proceedings with all due formality by Malcolm McDonald and Co, and that Ms Watson had the conduct of them. The third set of proceedings was a complaint for assault brought by Dorothy Capsanis against her former husband, John Knight; and there was a fourth matter which, as counsel said, "remains only in outline, something to do with Child Welfare". The opponent appears to have been involved in both of these, as his letter of 4 October 1985 (to which I will come) establishes; but the evidence does not indicate what was the fate of the assault case or whether the opponent's involvement in the Child Welfare matter extended further than the conference to which he refers in the letter. Malcolm McDonald and Co were not involved in either of these two matters; and there is no evidence of the identity of the solicitor who instructed the opponent if, indeed, he did hold a formal brief. The fifth matter was an application by John Capsanis for custody of his children, the sixth an application by John for restraining orders against Noelene, and the seventh an application by John for the return of goods alleged to have been detained by Noelene. The opponent was instructed as counsel in the fifth by Malcolm McDonald and Co. The firm instructed other counsel in the sixth matter concerning the restraining orders. It is not evident that any counsel was briefed in the seventh. In short, Ms Watson, on behalf of Malcolm McDonald and Co acted for John Capsanis, and briefed the opponent in the Family Law proceedings, that is in the claim for principal relief and in certain ancillary matters. The matter before the court on 11 November 1986, and which is the subject matter of this application, constituted a further chapter in the litigation between the two families. It opened with a fracas (witnessed by John and Dorothy) between Noelene Capsanis and Andrew Knight. There was some dispute about when this occurred, but I find it to have been 29 January 1986, a date which Dorothy Capsanis ultimately accepted and to which John Capsanis deposed in an affidavit sworn on 3 February 1986 in support of his application for restraining orders. Noelene charged Andrew with assault and he riposted in like fashion. The two sets of proceedings came before a Local Court on 7 April 1986 when the opponent appeared for Andrew Knight. Noelene Capsanis did not appear and was found-guilty on Andrew's cross-summons; her summons was dismissed. On 26 August 1986 she appealed to the District Court and Lloyd Jones DCJ allowed her appeal and quashed her conviction. It is not clear whether the opponent appeared on this occasion. Noelene apparently took out fresh proceedings and it was these that came before the court on 11 November 1986. I should add that neither Mr McDonald nor Ms Watson was present in court on either 7 April 1986 or 26 August 1986; there is no record that the firm charged any fees in respect of these URJ THE NEW SOUTH WALES BAR ASSOCIATION v SMITH (Samuels JA) 5 assault cases for any work done up to and including August 1986 and both Mr McDonald and Ms Watson deny that they knew about the proceedings until 11 November 1986. On that day the matter came before Mr Hiatt, the magistrate, and Mr Torrington of counsel, who appeared for Noelene Capsanis, indicated that he proposed to apply for an adjournment. Upon the opponent's announcing his appearance Mr Torrington challenged his retainer, saying that his solicitor, Mrs Janet Davies, had the day before spoken to Ms Watson who had said that her firm were not instructed to act, and that the opponent was, therefore, not briefed. He added that that morning his solicitor had again confirmed with Malcolm McDonald and Co that they had no interest in the matter, speaking once more to Ms Watson. The opponent answered by asserting that it was no surprise that Barbara Watson knew nothing of the matter; she was not the instructing solicitor Malcolm McDonald was. The magistrate then asked the opponent whether his instructing solicitor was present and, on getting a negative answer, inquired "Any reason for that?" The opponent replied that his instructing solicitor was engaged in other work. He went on, "He is not able to be at court today and the reason why Tam at court with the matter and he not is that I am the person w 0 is very familiar with the facts, whereas his familiarity with the case is restricted to other aspects of it and not this particular aspect of it. And in fact it is very unusual as your Worship is aware for solicitor and, [sic] to be present on all occasions in a hearing in this jurisdiction." The magistrate then offered the opponent the opportunity to have the instructing solicitor present and the matter was stood down in the list for that purpose. On resumption the opponent was not present, but Mr Torrington informed the bench that his instructing solicitor, Mrs Davies, had ascertained from Mr McDonald personally that, as at 11.45 that morning, the opponent was not briefed in the matter and that Mr McDonald was available in his office next door to the court complex. At this the magistrate, reasonably enough, expressed the view that the opponent had not established his challenged retainer, but added that he was prepared to give him further opportunity to do so. It was then 12.15 pm and the matter was again stood down in the list. Upon resumption, the opponent was present, and confirmed that Mr McDonald was his instructing solicitor and that he had a brief in the matter, and that although Mr McDonald could not come to court his client was present "who can confirm the instructions if necessary" - I do not know by what means. Mr Torrington called his instructing solicitor, Mrs Davies, who confirmed the inquiries to which I have already referred, culminating in a conversation with Mr McDonald at 11.45 am in which he said that he had no instructions to act for Andrew Knight, that he had not seen him at that stage and had not instructed counsel. The opponent then informed the court that "whatever my friend thinks was the previous situation, I am briefed to appear in this matter. I am instructed by Malcolm McDonald personally. I have the brief with me in court, the backsheet." He went on to explain that Malcolm McDonald and Co had known of the matter since February because it arose out of Family Court proceedings and he referred particularly to the restraining orders which had been sought. He continued: "The backsheet was provided today, simply because until today there was a misunderstanding that the backsheet had already been provided in the form of the initial backsheet which was covering the family matters and property settlement matters and those associated with it........ Whatever the previous situation was, Your Worship, the fact is now, that I have a backsheet specifically relating to this 6 UNREPORTED JUDGMENTS matter from my instructing solicitor Malcolm McDonald." However, the magistrate was not moved by this address and declined to grant the opponent the right to appear until such time as his instructing solicitor was present. The matter was again stood down in the list; and when resumed the opponent was able to inform the court that Mr McDonald was on the way to court and that Ms Watson was there present behind him. After lunch the matter was adjourned. The brief which the opponent had ultimately obtained is marked in Mr McDonald's handwriting with the words "No Fee" and in place of instructions, contains the following: "We confirm that we have been instructed by Mr Andrew Knight at 12.00 pm on 11th November 1986 to represent Mr Knight in respect of an assault action instituted by Noeline [sic] Capsanis." We hereby instruct counsel to appear upon hearing at Penrith Local Court on the 11th November 1986 in respect of the abovenamed, upon the condition that this office is not responsible for counsel's fees in this matter." This is signed by Mr McDonald although he agreed that it might be that the brief had been prepared, that is to say dictated, by MS Watson. Against this factual background the issues in the case must be determined. The opponent does not seek to persuade the court that prior to the challenge to his retainer he held a written brief instructing him to appear for Andrew Knight on 11 November 1986 or had received specific oral instructions to do so. His answer to the charge that he sought to appear without the intervention of an instructing solicitor is that he believed on reasonable grounds that he was instructed to appear "in accordance with the arrangement". That, therefore, is the first question; and the second is whether he deliberately misled the magistrate by informing him that he was instructed when he was not, and by asserting that Mr McDonald was not in court because he was engaged in other work or because he was not familiar with the aspects of the case being heard. It is necessary now to examine more closely the 'arrangement' made between the opponent and Malcolm McDonald, to which I have already referred. There can be nothing improper in a barrister simply nominating a solicitor to some friend or acquaintance who needs one. But the standing arrangement which existed here is potentially destructive of the dichotomy between the functions of the barrister and the solicitor which a separate Bar entails, and R26 of the Bar Association's rules preserves. The essence of such an arrangement is (and was here) the reservation to the referring barrister of the barrister's role, should the matter referred require it to be played. A solicitor has a duty to the client to be satisfied that any barrister he or she briefs is competent to do the work required. That duty must not be abdicated, either in favour of a client who brings along with his instructions a preference for a particular barrister, or of a barrister who, in referring a client, prefers himself. It follows that it is really for the solicitor to ensure that matters are properly conducted. The solicitor must not accept the convenient role of 'postbox', merely furnishing a formal backsheet, an address for service and a facility for the issue and service of subpoenas, and otherwise taking no part in the proceedings, leaving it to the barrister to hold conferences, take proofs of evidence and prepare and conduct the case. If a solicitor accepts an arrangement of the kind in question he must involve himself to the full extent necessary, so that the client referred becomes in all respects the client of the solicitor. Hence it seems to me that a solicitor should not accept such an arrangement unless the problems of the client URJ THE NEW SOUTH WALES BAR ASSOCIATION v SMITH (Samuels JA) 7 referred are those which fall within the barrister's field of competence, and the barrister, in any event, reasonably deserves, by experience or reputation, the solicitor's confidence. If the practices I have summarised are observed, I would not consider arrangements of this kind improper. I see nothing improper in the arrangement made in the instant case. I am satisfied that the firm fully understood, and undertook and discharged, its obligations to Mr Capsanis. It is clear to me on the evidence that it was Ms Watson who handled the Capsanis matters and instructed the opponent. Mr McDonald had told her to brief the opponent when she could. She apparently was reluctant to do so because, as she said, "his manner of practice caused me concern", and "that arrangement went awry." I infer that she believed that the opponent was attributing instructions to the firm when he had in fact received none and had not referred the clients who had consulted him directly. There is no evidence of this, the matter was not explored and I place no reliance upon it. But I am satisfied that in the matter in which Ms Watson instructed the opponent - that is, in the Capsanis family law proceedings - she ensured that he received a formal brief and full instructions. Ms Watson swore affidavits in chief and in reply and gave oral evidence. No objection was taken to any of the affidavit evidence and much of her recollection was supported by contemporary written notes and documents. There is no evidence as to when Ms Watson was admitted but she was, according to Mr McDonald, twenty three or twenty four years of age in 1986 when these events occurred. She was, in his opinion, a very good 'family' lawyer and had the reputation of being "very good, very precise." This assessment was, in my view, well supported by the way she gave evidence. I found her an impressive witness and, I judge, entirely worthy of credit. Where there is any conflict between them, I prefer her account of relevant matters to that of the opponent. I should perhaps say expressly, because it seemed that she was a little apprehensive that her conduct might be vulnerable to criticism, that I can see no respect in which she behaved other than in a perfectly correct and professional fashion. Accordingly, the opponent's referral of Mr Capsanis was properly handled by Ms Watson. I see no reason to doubt that the opponent was believed by both Mr McDonald and Ms Watson on reasonable grounds to be a competent advocate in the field in which they instructed him. The claimant does not complain about this arrangement. But it is necessary to explain what it was, and to suggest its inherent dangers, in order to examine the issues that are in contest. As I have said, the opponent does not contend that he held a formal brief from the firm to appear for Andrew Knight on 11 November 1986. He concedes that he had received no such distinct instructions either orally or in writing. But he argues that he believed, on reasonable grounds, that he had been briefed, either because this belief was, in the circumstances, a reasonable inference from the arrangement between him and Mr McDonald; or because both Ms Watson and Mr McDonald tacitly allowed him to form that belief, this last point being put in a way reminiscent of a case of conventional estoppel. I will deal with these assertions in turn. The opponent gave five accounts of his version of the matter. The first before the magistrate, the second in a document called 'draft affidavit', prepared either on 11 November 1986 or the following day and admitted by the Disciplinary Tribunal, the third in his unsworn evidence before the Tribunal, the fourth in a statement annexed to his affidavit of 30 June 1989, sworn in these proceedings, and the fifth in his evidence to this Court. I have quoted part of what he said to 8 UNREPORTED JUDGMENTS Mr Hiatt. The point he made was that the original brief that he had received in the family law proceeding constituted a "continuous instruction" covering any other matters "associated" with that proceeding. He offered the same explanation in the 'draft affidavit', where he observed: "I saw no need to get a separate back-sheet, since the parties and incidents were covered in my Family Law brief... | subsequently appeared in various courts on various dates in connection with the assault proceedings..." In his evidence before the Tribunal the opponent reiterated his belief that he "was entitled to proceed in the matter without a further backsheet, and that is what I did." His statement contains the same material, together with the factual basis of the second and third points. In evidence before this Court apart from supporting those points - he endeavoured to strengthen, as it seemed to me, the plausibility of his honest belief by attributing it to a general understanding between him and Mr McDonald. He gave this evidence: "Q. Had either of them given you in any form instructions to appear on 17th October? A. If you mean written instructions, no. Q. Orally? A. I don't know about that but I do know that it was Malcolm's practice in his relationship with me over all those years, if I could backtrack a bit. He might initially give me a brief to appear in a court on a particular date and then a matter might develop from there which might necessitate further court hearings at other dates. It was always accepted between us that although the initial brief might refer only to the initial date that whatever other proceedings arose out of the initial date and initial attendance at court... SAMUELS JA; Q. In the same matter you mean? A. No, not necessarily. Any proceedings that arose out of that in relation to the same client and the same incident or incidents arising out of a matter I would attend to. Q. You would be requested to do so? A. I didn't hear. Q. You would be requested to do so? A. No, I don't think I was... Q. You mean you would simply assume that whatever complications arose you had instructions to appear on them? A. Yes, that had been our arrangement and our practice for many years. Q. Whatever the nature of the complication, you called it? A. Yes. Q. And whatever the court in which it had to be resolved? A. Yes, but if there was a need to have documentation or witnesses or subpoenas issued obviously the nature of the complication again would be discussed with Malcolm and he would arrange that aspect of it. But as a general tule, the handling of the matter at court or courts on whatever date or days was left to me. He didn't like going to court and he rarely did." In addition the opponent sought to rely upon a letter dated 4 October 1985 and headed "The Capsanis saga" (annexed to Ms Watson's affidavit of 22 December 1989) which he wrote to Malcolm NcDonald and Co and marked for Ms Watson's attention. In it he reported upon the settlement in the Family Court of the dispute about access, and the course of the Registrar's Conference under Order 24 in which Mrs Davies appeared for Noelene Capsanis. At the end of this URJ THE NEW SOUTH WALES BAR ASSOCIATION v SMITH (Samuels JA) 9 report the opponent says: "I have enclosed a further statement of my fees to date, as we discussed." Then there follows the final paragraph, in these terms: "In addition to this Family Law matter, the personal lives of the Capsanis family get worse and worse. As you know, I am to appear on 17th October 1985 for them in two assault hearings involving the former husband Mr Knight - my fee for that, conservatively, would be $300.00 plus $80.00 for a conference re. that matter, which I'll need to have with the clients before the 17th - that is, $380.00. On top of the $485 Family Law fees, plus $380 assault cases fees, there is now a third matter involving the Child Welfare, where I've already had (3/10/85) a conference - $80; that is, $945 in all. I have not given any accounts to the clients, nor any indication of the above fees. Perhaps you could help smooth the way. Thank you." The reference to "$485 Family Law fees" concerns fees charged by the opponent in respect of the proceedings in which he was undoubtedly briefed. The statement of fees to which the letter refers does not appear to be annexed to Ms Watson's affidavit. But there is a later memorandum of fees dated 9 April 1986 in the sum of $485 headed "Capsanis and Capsanis Family Law" and identified as "To: Account previously rendered, 4th October 1985." This amount was paid on 13 June 1985 out of funds received from Mr Capsanis to whom, on 16 May 1985, Ms Watson had rendered a "final memorandum of costs and disbursements re matrimonial proceedings." Ms Watson in her affidavit says that until she received the opponent's letter she was unaware that he was involved in proceedings involving assault or "the Child Welfare"; and she consistently denied that she had ever briefed him in matters of that kind or, specifically, in the proceedings which brought him to the Penrith Local Court on 11 November 1986. However she responded to the letter by writing to Mr and Mrs Capsanis setting out the fees of $460 to which the opponent had referred and adding: "In accordance with customary practice, counsel will require monies to be deposited in trust prior to counsel's appearance in respect of the assault matters on the 17th October 1985 at Penrith Local Court in the sum of $380." The opponent sought to explain his letter on the footing that it was a response to either an express request from Mr McDonald, or possibly Ms Watson, to indicate what his fees would be for the matters referred to, or that he wrote in response to an implicit request consistent with the practice which had always existed between them. In either case, he contended that he had been briefed to appear in those matters, or reasonably believed that he had, although he conceded that he had no written brief or any other instructions in writing, and could not recall with particularity when he received oral instructions or from whom. In any event the letter supported the existence of the practice for which the opponent contended. Ms Watson, on the other hand, said in cross-examination that she had no prior knowledge of the assault matter or of any matter concerning "Child Welfare", but wrote requesting the moneys be furnished merely as a courtesy to the opponent, and in order to assist him. She frankly agreed that to write such a letter in the circumstances, that is where her firm was not the instructing solicitor, was "somewhat odd". While I also think that it was somewhat curious for Ms Watson to have written as she did in a matter in which she was not instructing the opponent, I accept that she did so, as she says, as a courtesy. I do not accept that the opponent had instructions in the matter from Malcolm McDonald and Co or that he believed that he had. I arrive at this conclusion largely because of the terms of the last 10 UNREPORTED JUDGMENTS paragraph of his letter of 4 October 1985. I do not believe that a barrister, writing to a solicitor about matters in which the solicitor has instructed him to appear, would open by saying: "In addition to this Family Law matter, the personal lives of the Capsanis family get worse and worse. As you know I am to appear on 17 October 1985 for them in two assault hearings......" The first sentence plainly assumes ignorance of the subject matter on the part of the recipient of the letter. It is true that knowledge is expressly attributed at the beginning of the next sentence; but I would read that in the context as probably indicating no more than a recollection that the subject matter had been earlier mentioned by the opponent to Ms Watson. It is not the way in which I would have expected the opponent to refer to instructions previously received. The statement "I have not given any accounts to the clients, nor any indication of the above fees", suggesting that he might have taken both steps but is making clear that he had taken neither, is inconsistent with the opponent's assertions elsewhere made that he did not discuss fees with his clients and implies the absence of an instructing solicitor. Finally, the sentence "Perhaps you could help smooth the way" followed by "Thank you" does not seem to me to amount to a request by a barrister to his instructing solicitor to get in the money necessary to defray his fees for a forthcoming appearance in a matter in which the solicitor has instructed him. "Smooth the way" must mean "smooth my way" and this presumably is a request for some assistance in doing what the opponent would otherwise have had to do himself, that is to say, tell the clients what his fees were going to be. I do not consider that the opponent's letter, or Ms Watson's reply, supports the existence of any practice such as that to which the opponent referred in the passage set out above, by which he had carte blanche to represent clients in any forensic developments that arose out of a matter in which he had been briefed. This practice was relied upon by counsel for the opponent to validate his client's reasonable belief that he was briefed to appear on 11 November 1986. It is, of course, different from the arrangement earlier described by which the firm would accept referrals from the opponent; and it is contrary to the testimony of both Mr McDonald and Ms Watson, which I prefer to that of the opponent. Firstly, both Mr McDonald and Ms Watson say that when they instructed the opponent they provided him with a formal brief, having first taken instructions from the client, that is, a client referred by the opponent. Secondly, the evidence confirms that that is what they did. Ms Watson, on or about 18 June 1985, delivered a brief to the opponent to appear in the principal proceeding in the Family Court on 3 July; and, on or about 25 July, a separate brief to appear in the application concerning property returnable on 30 July. Thereafter, until they were concluded, she delivered further written instructions from time to time in the Family Court proceedings; and, apart from the exchange of letters in October 1985, with which I have dealt above, there is nothing to suggest that the firm acquiesced in the opponent's appearing in matters in which he had not been distinctly instructed. Thirdly, had the practice been as the opponent contends Ms Watson would hardly have told Mrs Davies that Malcolm McDonald and Co were not instructed in the matter, or denied that the opponent was briefed. There was absolutely no reason for her response to Mrs Davies other than the compulsion of truth. Fourthly, if the practice had been as the opponent contends there would have been no reason for Mr McDonald's going to the trouble of interviewing Andrew Knight, and taking instructions from him (which he did), and then delivering to the opponent the brief which is in evidence. Fifthly, the practice asserted by the opponent is inherently improbable. I do not doubt that, URJ THE NEW SOUTH WALES BAR ASSOCIATION v SMITH (Samuels JA) 11 as the opponent said to the Tribunal, John and Dorothy Capsanis had expressed a desire that he should appear for them "in toto", that is, in all matters relating to their domestic disputes. Nor do I doubt that they were unable to appreciate the true role of Malcolm McDonald and Co, seeing the firm as an unnecessary incubus whose intervention was designed only to make money for lawyers. However, I do not consider it probable that Mr McDonald, or Ms Watson, ever gave the opponent the licence he said he had, or any reason to suppose that he had it. In the alternative, as I understood the argument, the opponent submitted that Ms Watson had led him to believe that he was briefed in the assault proceedings. The incident between Noelene Capsanis and Andrew Knight occurred, as I have said, on 29 January 1986. Both the opponent and Mrs Capsanis initially placed it somewhat earlier. However the argument ran that after the event Mr and Mrs Capsanis consulted the opponent, who spoke to Ms Watson, suggesting that a restraining order be obtained in the Local Court. Ms Watson, however, was of the opinion that the Family Court would be the preferred forum. At all events they agreed that if the Family Court refused the application Mr and Mrs Capsanis would have to resort to a summons for assault (ie a summons by Andrew Knight) in the Local Court where the opponent would appear. The Family Court did refuse relief and, with Ms Watson's knowledge and implied or presumed instructions, the opponent duly appeared for Andrew Knight in the Local Court. There are, however, several flaws in this construction. Mrs Dorothy Capsanis swore an affidavit and was cross-examined. She was much astray in her recollection, being certain, until shown her husband's affidavit, that the assault had occurred on 21 January 1986. I do not accept the accuracy of her recollection of dates and events. I prefer that of Ms Watson, supported, as it is, by the contemporary documents; and augmented by dates agreed between counsel. On this footing I find that Mrs Noelene Capsanis took out her summons on 30 January 1986, returnable on 13 February, when the opponent appeared. Mrs Dorothy Capsanis, or, more accurately, Andrew Knight, laid an information on 4 February 1986, which took the course I have already indicated. MS Watson made an application under the Family Law Rules for restraining orders against Mrs Noelene Capsanis on 3 February 1986. Although the affidavit in support of the application mentions the assault, the application proceeds substantially upon problems with access by Noelene to the children of the marriage. Obviously, the fate of this application could not have been determined by 4 February, when Mrs Dorothy Capsanis took out her summons. In fact, it was not decided until May, when, on Mr Capsanis' instructions, the application was withdrawn. Hence the opponent's suggestion that the proceedings in the Local Court were a substitute for unsuccessful proceedings in the Family Court is entirely without substance. Finally, the opponent made the direct assertion of a conversation with Mr McDonald on 6 November in the car park attached to their premises in which Mr McDonald spoke in terms consistent only with knowledge and approval of the opponent's holding a brief in the proceedings listed for the following Tuesday. The opponent did not mention the conversation in his evidence to the Tribunal or in the 'draft affidavit' which he then tendered and which is, to my mind, a generally candid account of these events. The conversation is first related in the statement annexed to the opponent's affidavit filed in these proceedings, and was repeated in evidence before this Court. The opponent's account was that he 12 UNREPORTED JUDGMENTS happened to encounter Mr McDonald in the car park on Thursday 6 November, and took the opportunity to mention that the matter was coming on shortly. His evidence was: "Malcolm the Capsanis assault matter is in court on Tuesday. Will you be there?' He said: 'No, I will be tied up with clients all day. I can't be there.' That didn't concern me because I didn't expect him to be there anyway. I asked him was there anything that he required attending to in relation to the hearing and he said no. He said: "Well, good luck.' A bit silly I suppose but I said, I made a bit of a joke and I said: 'Good luck with your matters on Tuesday', meaning the conferences with the clients, and he just gave a bit of a laugh and that is when we separated and that is the extent of the conversation. I can even nominate where it occurred. On that particular day my car was parked halfway up the car park. It is a sloping car park from one end to the other and we encountered each other just about the rear end of my vehicle although I was not going to my vehicle. I don't know what time during the day it was but I was either going out and he was coming in or it was the other way around, but that is where we met and that is where we discussed it in that fashion." Mr McDonald denied that any conversation in these terms had taken place, and I believe him. The opponent had every reason to assert such an exchange, but Mr McDonald had no reason to deny it. Moreover, if Mr McDonald had been aware that his firm had briefed the opponent in the matter, or at least that the opponent believed that he held a brief (and the alleged conversation would have established one or other of these propositions) his behaviour on 11 November 1986 becomes incomprehensible. On that day his conduct was consistent only with his evidence, that is, that until that day he knew nothing of the matter. Further, the opponent's evidence fails to establish how Mr McDonald came to be aware of the assault proceedings. Mr McDonald's evidence, which I accept, was that although the briefs to the opponent - or at least the brief concerning the application for dissolution of the Capsanis marriage - crossed his desk, he was otherwise unaware of the Capsanis proceedings which were handled by Ms Watson. All the objective material is to the same effect. Finally, there is no evidence from the opponent that on 11 November he reminded Mr McDonald (and, one would imagine, in no uncertain terms) of the conversation they had had only a few days before. It was not suggested in cross-examination of Mr McDonald that the opponent had done so. He could scarcely have forgotten the conversation while the dramatic events of the day were in progress, or when he came to set down his account in the 'draft affidavit'. Moreover, Mr McDonald in his affidavit of 20 July 1990 deposed, without objection, that on the evening of 10 November 1986 Ms Watson reported that the opponent had told "Bell's office" (Mrs Davies' firm, acting for Noelene Capsanis) that Malcolm McDonald and Co were acting for Knight. Mr McDonald said "Are we?", and Ms Watson said "No." This evidence was not challenged. Ms Watson's remark would certainly have jolted Mr McDonald's memory if the car park conversation had occurred. Hence, I am comfortably satisfied (Briginshaw v Briginshaw (1938) 60 CLR 366) that the opponent did not believe on reasonable grounds that he was instructed by Malcolm McDonald and Co to appear for Andrew Knight. That finding determines particular (a) in the schedule. It may be that, strictly, the opponent's answer to this first complaint, namely that although he was not in fact instructed he believed on reasonable grounds that he was, is strictly matter of URJ THE NEW SOUTH WALES BAR ASSOCIATION v SMITH (Samuels JA) 13 exculpation or excuse, the onus of establishing which lies on the opponent. If so then, a fortiori, I am not satisfied on the probabilities that the opponent held the belief he asserts. Ihave earlier referred to the balance of the complaints and I now set them out in full: "(i) that he was instructed by Malcolm McDonald and Co when in fact he was not so instructed; (ii) that he was personally instructed by Mr Malcolm McDonald when in fact he was not so instructed; (iii) that Mr Malcolm McDonald was not in Court because he was engaged in other work; (iv) that Mr Malcolm McDonald was not in Court because he was not familiar with the aspect of the case being heard." The claimant contends that the opponent lied to the magistrate in these respects. It follows from my rejection of the opponent's evidence about the car park conversation that that encounter cannot be the source of any of these statements. However, neither in the 'draft affidavit' tendered to the Disciplinary Tribunal, and said to be a contemporary account of the events of 11 November 1986, nor in his evidence to the Tribunal did the opponent mention the car park conversation. That first emerged, as far as I know, two and a half years later in the statement annexed to the opponent's affidavit of 30 June 1989. Accordingly, the opponent originally did not seek to attribute the statements made in court to a conversation with Mr McDonald. The explanation he gave in the 'draft affidavit', and to the Tribunal, must therefore be the one to be considered when evaluating the character of those statements. The fact that he later sought to embellish that account by reference to a conversation which I do not think took place, is relevant to a different aspect of this application. His original explanation was, to quote from the 'draft affidavit', that he believed that he "was properly briefed in the matter, it having arisen during the course of my being briefed in Family Law matters, and clearly arising out of them, involving the identical parties. I saw no need to get a separate back-sheet, since the parties and incidents were covered in my Family Law brief......" This explanation is hardly accurate. Andrew Knight was not a party to any matrimonial proceedings and the "incidents", if by that is meant the circumstances of the scuffle on 29 January 1986, could not have been covered in either of the two briefs delivered in the Family Law proceedings in June and July of the previous year. If in answer to the magistrate the opponent had merely insisted that he was briefed by Malcom McDonald and Co, I might have regarded that response as the expression of an honest, though unsoundly based, belief. But when the remaining statements are also considered, it becomes apparent that the opponent could not have had a belief in any one of them. Apart from the fact that the first brief delivered in June 1985 had been initialled by him the opponent had never received any instructions personally from Mr McDonald and, so far as the evidence goes, had never discussed any of the Capsanis affairs with him. The opponent had no grounds at all for asserting that Mr McDonald was not in court because he was engaged in other work, or that he was not there because he was not familiar with the aspect of the case being heard. The opponent (and, as I have said, the car park conversation for either of two reasons may be excluded from consideration) could not have known what Mr McDonald was engaged in that morning. He must have known that Mr McDonald, unless for some improbable 14 UNREPORTED JUDGMENTS reason he perused the Capsanis file in his spare moments in the office, would have known nothing about that matter; and, of course, nothing about the assault proceedings before the court on the day in question because there were no papers relating to that matter in the firm's office. It was put to the opponent in the witness box that the reference to Mr McDonald early in his response to the magistrate was no more than an attempt to deflect the inquiry away from Ms Watson who, as he then knew, had twice rejected him. The opponent's answer was that he ought to have said that Ms Watson had knowledge of the matter, but that Mr McDonald was in fact his instructing solicitor. I do not find this explanation a persuasive one. Accordingly, I am satisfied, according to the principle in Briginshaw, that the opponent had no belief in the truth of the statements he made to the magistrate, and that he deliberately misled the court by making them. He did so in an attempt to rebut the wounding and embarrassing challenge to his professional conduct which no doubt took him by surprise. He endeavoured to protect himself by seeking credibility in reckless detail about Mr McDonald's situation. Particular (b) is also established. Before going further I recapitulate the findings of fact which I have made. The opponent did not dispute that he was in fact not instructed by Malcolm McDonald and Co to appear for Andrew Knight on 11 November 1986. He tendered, and the claimant accepted, as the issue under par (a) of the schedule to the summons, the question whether he believed on reasonable grounds that he was instructed. I have found that, however the onus lies, he had no such belief. I am satisfied that the opponent made the statements in par (b) of the schedule in order to persuade the magistrate that he was instructed. I have found that he had no belief in their truth. Hence by asserting their truth, as he at least impliedly did, he deliberately misled the Court. The opponent submitted that since the truth or falsity of the statements was irrelevant to the proper administration of justice there could be no 'misleading' capable of amounting to professional misconduct. However, Prothonotary of the Supreme Court of New South Wales v Costello (1984) 3 NSWLR 201 is authority directly to the contrary of that submission. The opponent did not contest the proposition that if he had had no belief on reasonable grounds that he was instructed to appear for Andrew Knight his appearance constituted professional misconduct. It is necessary to consider the legal basis of that concession. First, in order to determine the orders to be made if professional misconduct should be established. Secondly, because in my opinion in a disciplinary matter the Court exercising the grave power of disbarment should not be wholly bound by the way in which the immediate parties choose to conduct the contest. The claimant contended that professional misconduct on the part of a barrister consists in behaviour on his part, which would reasonably be regarded as disgraceful and dishonourable by his professional brethren of good repute and competency: Prothonotary of the Supreme Court of New South Wales v Costello (1984) 3 NSWLR 201 at 203. R26, which I have already quoted and which deals with acting without instructions, although not directly binding the opponent who was not a member of the Association (but who regarded himself as bound by its tules), nevertheless stated a principle which all barristers were obliged to adopt. Hence to act knowingly in breach of it (or, presumably, to act without believing that its requirements had been fulfilled) amounted to professional misconduct, presumably because such conduct infringed the definition stated in Costello. Alternatively, R21 of the Rules of the Bar Association encapsulated principles URJ THE NEW SOUTH WALES BAR ASSOCIATION v SMITH (Samuels JA) 15 binding on all barristers by proscribing "anything contrary to the standards of practice becoming a barrister." A barrister who sought to appear without reasonable grounds for believing that he was instructed by a solicitor would engage in conduct contrary to those standards. As it happens the requirement that a barrister must be instructed by a solicitor is a comparatively late prescription. There is a succinct account of the history of the rule in In re T (a Barrister) [1982] 1 QB 430 at 434-6 from which it appears that as late as 1850 there was no established rule that required counsel appearing in court to be instructed by a solicitor, although that was the approved practice. Indeed even in 1888 the position was not wholly clear, and in that year Sir Richard Webster QC, the Attorney General of the day, delivered an opinion which is generally taken to set out the modern rule. But the only reason tendered in support of the rule is one which lacks relevance in New South Wales. Sir Richard, having stated the rule, went on to say: "One very grave reason for this tule is obvious. In contentious business, which frequently affects the rights of other persons, it is most important that the facts should be, as far as possible, accurately ascertained before advice is given. For this purpose, as a barrister cannot himself make proper inquiry as to the actual facts, it is essential that he should be able to rely on the responsibility of a solicitor as to the statement of facts put before him." That explication was, of course, influenced by the practice of the Bar in England which has always forbidden counsel to interview witnesses in conference, either before or during the running of a case, with the exception of expert witnesses who are regarded as instructing counsel. That preclusion has, however, never obtained in New South Wales. I do not suggest that Sir Richard had no other weighty reasons by which to support his opinion. Nevertheless, it is this one which he chose to advance. In my opinion the rule (as I will call it) is essential to the maintenance in this State of a divided legal profession. It acknowledges and protects the assumption upon which the structure stands, that solicitors deal directly with the public and that barristers do not, and provides the essential insulation between barrister and lay client. While the present system remains it would be contrary to the public interest to permit barristers to ignore so basic a feature of it. To deal directly with the public inevitably involves dealing with the client's money. Barristers are under no obligation to keep trust accounts, are not subject to the provisions of Pt6 of the Legal Profession Act 1987 or of the regulations made under the Act, and their accounts and financial records are not open to the scrutiny of auditors as contemplated by s63 of the Act. Barristers, save under the general law, are simply not accountable in respect of financial dealings with their lay clients which, as matters stand, are not to occur. The New South Wales Bar Association v Kalaf, Court of Appeal, 11 October 1988, unreported, is instructive upon this point. The merits of the current dichotomy are irrelevant for present purposes. It has been in recent times the subject of controversy and investigation, and has withstood the assaults of its critics. Those who practise as barristers do so subject to the precepts it entails; and to take instructions directly from a member of the public is (with very limited exceptions) incompatible with practice at the Bar. But is it behaviour which satisfies the description adopted in Costello? I do not think that it is. A barrister may act, although without instructions from a solicitor, in an entirely honourable way and represent his client with unswerving dedication and efficiency. Of course, in acting in this fashion he will break other rules of the Bar, particularly if he is to take a fee. Even so, I do not regard such 16 UNREPORTED JUDGMENTS conduct as, without more, disgraceful or dishonourable. Some may perceive moral obliquity in failing to observe what I have called an "essential" rule of practice at the Bar, which every barrister impliedly undertakes to honour upon signing the roll of counsel. However, absent any aggravating factors in the actual conduct of the lay client's business, I do not consider that to act contrary to the requirements stated in R26 can without more be reasonably regarded as disgraceful or dishonourable. (For an aggravated case of the kind see Kalaf) The question of whether that definition remains appropriate as the test of professional misconduct was not pursued, no doubt because the concession made was seen to render it unnecessary. In any case, as Priestley JA pointed out in Costello at 207, it was said in Allinson v General Medical Council [1894] 1 QB 750 when the definition was formulated, that it was not exhaustive (at 763) but defined (in effect) "at least one kind" of professional misconduct (at 760). In Oidwai v Brown (1984) 1 NSWLR 100, another medical case, it was said that a practitioner was guilty of misconduct in a professional respect if his conduct "would reasonably incur the strong reprobation of professional brethren of good repute and competence": see at 105 per Priestley JA with whom Samuels JA agreed (at 102). See also Pillai v Messiter (No 2) (1989) 16 NSWLR 197 and Childs v Walton, Court of Appeal, 13 November 1990, unreported. I do not doubt that pejorative epithets such as "disgraceful" or "dishonourable" implying moral turpitude have a place in the formulation of relevant criteria. Similarly "strong reprobation", which might involve moral outrage, or might describe the professional reaction to gross incompetence without moral obliquity (see Pillai at 208 per Samuels JA) is also a serviceable criterion in particular cases. In my view, however, in a case such as the present it is possible to advance a rather more objective test influenced by the High Court's rough division of professional rules into two classes - those which are "mainly conventional" and those which are "fundamental": Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 199-200. The fundamental rules there in contemplation were seen "to rest essentially on nothing more and nothing less than a generally accepted standard of common decency and common fairness": at 200. But I think that there may be fundamental rules of professional practice which do not depend upon decency and fairness, unless in a somewhat remote degree. I regard the proscription of a barrister's appearing without the instructions of a solicitor (except in the cases excepted) as constituting such a fundamental rule, because the obligation to observe the restriction and to decline instructions from the public represents the kernel of a barrister's mode of practice. To ignore these restraints is, as I have said, to act in a manner incompatible with practice at the Bar. Accordingly, and for that reason I regard the opponent's behaviour in the present case as amounting to professional misconduct. The concession was rightly made. I am satisfied that, applying any of the conventional tests, the making of the statements particularised in the schedule constituted professional misconduct. The magistrate sought the opponent's response to the challenge made to his retainer. It was wholly improper of the opponent to have endeavoured to deploy in his defence statements of facts which he did not believe to be true. The final question is whether the finding of professional misconduct is such as to demonstrate that the opponent has been shown not to be a fit and proper person to be a member of the Bar: Ziems v Prothonotary of the Supreme Court of New URJ THE NEW SOUTH WALES BAR ASSOCIATION v SMITH (Samuels JA) 17 South Wales (1957) 97 CLR 279 at 297-8. In approaching this question it is necessary to bear in mind that the disciplinary jurisdiction exercised by this Court is wholly protective, designed to protect public interest and the due administration of justice. No question of punishment arises. But it is legitimate to consider the possible deterrent effects upon other practitioners of orders made, and thus the protection of the public by that means. In the present case I feel bound to take into account, although it is not an independent head of complaint, the opponent's evidence about the conversation in the car park which, I regret to say, I regard as a deliberate fabrication. Hence in this respect the opponent lied to this Court. It is beyond doubt that a practitioner whose conduct is under scrutiny by the Court is bound "to display candour and complete honesty in the conduct of the case": Kalaf, per Kirby P at 4. If he fails to do so his lack of candour "must be taken into account in judging the extent of the moral incapacity against which protection is required": Kalaf, per Samuels JA at 2. The episode arose out of an arrangement which I have described, which was acceptable in the circumstances, useful, and indeed important, to a barrister in the opponent's circumstances striving to overcome ill health and to put together a modest practice. I am inclined to think that the opponent appeared for whichever members of the Capsanis clan needed his services without applying his mind to the necessity to get separate and distinct instructions in each case. I can understand how this came about. In the statement annexed to his affidavit he says: "IT now believe that I unwittingly acted indiscreetly in assuming that I was properly briefed in the matter in question. I am now aware of the importance of not accepting a brief from an instructing solicitor on a casual basis......1 now understand that I should not proceed to represent clients in Court without clear written instructions so to do, from my instructing solicitor, when dealing with substantive matters". I would accept that it is highly improbable that the opponent will forget in the future what his membership of the Bar demands in this respect. In the statement he goes on to say: "I did not believe that I was misleading the Court on 11 November 1986 when I responded as I did." I am sceptical about the accuracy of this assertion. For reasons which I have set out at some length and will not repeat I do not accept that the opponent believed in the truth of the statements made in court on that day, of which the claimant complains. In my opinion the opponent, no doubt badly shaken by an unexpected attack, and apprehensive, although not fully realising the frailty of his position, offered a reckless defence, asserting facts in whose truth he had no belief. He dealt lightly with the truth, both before the magistrate and before us. It is the latter occasion that I find the more disturbing. It lacked the stress which was no doubt exerted by the circumstances of 11 November 1986. The opponent had ample time to consider the contents of his affidavit and its annexures, and what he would say in evidence in this Court. Thus the conversation in the car park has a premeditated character which the exchange with the magistrate necessarily lacks. Nevertheless I am not prepared to say that he is unfit to be a member of the Bar; or that the protection of the public requires his disbarment. That being so I see no purpose in suspension, which would bring no insights denied to him now. Despite the serious nature of his conduct before the magistrate, and of his subsequent untruthful evidence to this Court, I think that there are factors which mitigate this behaviour. His initial fault, although professional misconduct for the reasons which I have explained, deserved no more than a protective and advisory 18 UNREPORTED JUDGMENTS rebuke. It is not suggested that it was stimulated by any improper motive or intent or attended by any prejudice to the lay client. It was the product of foolishness rather than anything else. The lies which followed were told in an ill-conceived attempt at self-protection. I recognise, as I have said, that the opponent's untruthful evidence before this Court was not stimulated by any immediate pressure. But I would not regard it (it is not itself the subject of any complaint) as influencing the consequences of the misconduct charged so as to require removal from the profession. I believe that the opponent is deserving of censure. Ihave found him guilty of professional misconduct. I think that the matter can rest there. I do not think it appropriate to make the declarations sought. The findings will suffice to indicate my views. I would propose that the Court records a finding that the opponent is guilty of professional misconduct in the respects alleged in the summons and orders the opponent to pay the claimant's costs. Mahoney JA The Bar Association seeks an order that Mr Smith be removed from the roll of barristers. It has established: that he appeared before a Local Court knowing that he was not instructed in the proceeding by a solicitor; that, when his retainer was challenged, he gave the Magistrate to understand things which he knew to be untrue; and that, in the proceeding before this Court he said things in his defence which he knew to be untrue. The Association submits that Mr Smith is not a fit and proper person to be a barrister. It relies, inter alia, upon the matters to which I have referred. The details of those matters are set forth in the judgment of Samuels JA which I have had the advantage of reading. Ihave, with regret, come to the conclusion that the Association should have the order which it seeks. I regret that that order is to be made. It will have a serious effect upon Mr Smith: he will not be able to practice the profession to which he has so far devoted his life. And the evidence does not suggest that he is, as it has been put, an inherently evil person. But the court, in the exercise of its protective function, must consider whether he is a fit and proper person to be allowed to practice as a barrister. That is to be judged not merely by what he says but by what he does. One of the things, if not the thing, at the heart of the role of a barrister is that he is to be both frank and honest with the court before whom he appears. He is to do what he legitimately can do for his client. But in doing that he must not mislead the court: a fortiori, he may not tell the court something that he knows is false. As Samuels JA has demonstrated, that is what Mr Smith did before the Local Court. But in addition he attempted to support his case before this Court by saying that he had a conversation, with Mr McDonald, which, as Samuels JA has demonstrated, he did not have. A court cannot place trust in the word of a person who acts in this way. I appreciate the pressures that may have been upon Mr Smith. What he said to the Magistrate was not, I suspect, premeditated. It was, I suspect, a wrong committed on the run. And he may have felt himself under pressure to support what he did when he came before this Court. But, giving full weight to the circumstances, a person who acts as he has acted is not, in my respectful opinion, a person who is fit or able to discharge the obligations of a barrister. URJ THE NEW SOUTH WALES BAR ASSOCIATION v SMITH (Meagher JA) 19 I have considered whether a suspension would be appropriate. But Mr Smith has persisted in his claims, in respect of what he said to the Magistrate and in respect of the alleged conversation with Mr McDonald, to the end of the present proceeding. I do not think that in these circumstances a suspension as appropriate. What is to be done in this regard upon any subsequent application for re-admission will require consideration if and when such an application is made. I would order that Mr Smith's name be removed from the roll of barristers. He should pay the Association's costs of the proceeding before this Court. Meagher JA I have had the benefit of reading in draft the judgment of Samuels JA, and agree with it on all matters except the question of penalty. On this question I agree with Mahoney JA, whose draft judgment I have also read. Mr Smith lied to the magistrate, and has subsequently lied to this Court, and on oath. It must be in the public interest that the profession be purged of those of its members who succumb to the temptations of mendacity. The legal system can only operate effectively if magistrates and judges can accept the word of legal practitioners, and it must be in the public interest that the legal system can operate effectively. I agree with the orders proposed by Mahoney JA. 1. That the Opponent's name be removed from the roll of barristers. 2. That the Opponent pay the Association's costs of the proceedings in the Court of Appeal. Counsel for the Claimant: NR Cowdery QC/P Garling Counsel for the Opponent: BR Pape/T Muir Solicitors for the Claimant: Dibbs Crowther and Osborne Solicitors for the Opponent: Yvonne Swift and Company