Council of the New South Wales Bar Association v Biscoe

Applicable legislative regime

1. The Legal Profession Uniform Law (Uniform Law) applies by reason of s 4 of the Legal Profession Uniform Law Application Act 2014 (NSW). Certain conditions in the Uniform Law and the Legal Profession Uniform General Rules 2015 (NSW) must be satisfied in order for a person to engage in legal practice. Relevantly, s 10(1) of the Uniform Law, read with the definitions of "entity", "qualified entity" and "Australian legal practitioner", provides that an individual must not engage in legal practice unless he or she (a) is a person admitted to the Australian legal profession in NSW or another jurisdiction and (b) holds a current practising certificate. Contravention is a criminal offence carrying a maximum penalty of 250 penalty units or imprisonment for two years or both.
2. Further, unless a person has the appropriate qualifications, it is a criminal offence to advertise or represent, or do anything which states or implies, that he or she is entitled to engage in legal practice: Uniform Law, s 11(1).
3. An Australian legal practitioner is also required to take out an approved insurance policy covering his or her practice: Uniform Law, s 211. Breach of this provision exposes the person to a maximum civil penalty of 100 penalty units.
4. Practising certificates are generally issued with an expiry date of 30 June. Until 30 June 2015, practising certificates were granted by the relevant Council under s 41 of the Legal Profession Act 2004 (NSW). A practising certificate was current to the end of the financial year in which it was granted or renewed. For the financial year ending 30 June 2015, relevantly for present purposes, the procedure was as follows. 1. A barrister holding a current practising certificate could seek renewal between 1 April and 7 June of 2015 for a practising certificate to be issued for the 2015/16 financial year. 2. If an application was made after 7 June but before 30 June a late fee was payable but renewal would be granted.
5. If the practitioner applied after 30 June a certificate could not be renewed and the person was required to apply for the grant of a new practising certificate.

January - June 2015

1. By 30 June 2015, the respondent's practising certificate had expired. The applicant had repeatedly sent correspondence to his chambers advising him of the need to renew his practising certificate. The respondent had also been the subject of a complaint made by a former client, AA, to the Office of the Legal Services Commissioner, in December 2014.
2. By April 2015, the respondent had failed to respond to the complaint, and had a conversation with an Assistant Commissioner in that Office as follows: Assistant Commissioner: "We're calling about the letters we sent to you. We have not received a reply." Biscoe: "Over the past few months I've had serious health issues. ... Write to me at xxxxx Engadine NSW 2233. I am not in chambers at present. I am not doing much work." Assistant Commissioner: "Have you spoken to the Bar?" Biscoe: "Yes I am getting help." Assistant Commissioner: "The complaint is from [AA]." Biscoe: "He's the bloke who came around to my place and tried to steal my car." Assistant Commissioner: "Ok. We'll send it all off and Zaky Orya will give you our direct phone number. You'll need to talk to the Bar about changing your details on 'Find a Barrister.'"
3. On 30 June 2015, the complaint was forwarded to the applicant. He was also served with a notice under s 60 of the Legal Profession Act 2004 to which he was required to respond by 16 July 2015.

July - September 2015

1. The respondent did not apply during the renewal period to renew his practising certificate. A letter from the applicant dated 1 July 2015 advised that he needed to complete and lodge a practising certificate application, and stated that in the meantime he must not practise, including by doing chamber work. The letter was sent to the respondent's address in chambers. It was returned to the applicant, but only after it had been forwarded to another address.
2. However, the applicant was advised that on 16 July 2015 professional indemnity insurance for the respondent had been obtained. In 2016, in response to a notice issued by the applicant to the broker, the application form was provided. On that form, Mr Biscoe had indicated (by ticking boxes "No") 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." The applicant submitted that this was dishonest, in light of the respondent's undoubted awareness of AA's complaint.
3. There was further correspondence in July and August 2015 which need not be summarised. In late August 2015, the applicant learned that the respondent had appeared for clients in the Local Court on 25 August 2015 and 27 August 2015. It wrote to him on the latter date drawing attention to the previous correspondence, the fact that the respondent did not hold a practising certificate, the information it had concerning his appearances in the Local Court, and of his need to apply for a new practising certificate.
4. A Certification Officer from the Bar Association contacted the respondent the following morning: Biscoe: "I thought I had renewed my PC. I haven't received any correspondence from the Bar Association." Certification Officer: "What is your current address?" Biscoe: "xxxx xxxx, Haberfield. My father has contacted me about receiving mail at his address in Engadine and I will be collecting it on the weekend. I am to appear in Court today." Certification Officer: "You have to reapply for a PC." Biscoe: "I will come in to complete the application form. Will the PC be issued that day?" Certification Officer: "That is not my decision."
5. On 19 September 2015 the applicant received a complaint from the NSW Police (relating to appearance work in criminal matters undertaken by the respondent on 25 and 27 August 2015).
6. On 23 September 2015 the respondent delivered an application for a practising certificate to the applicant. Parts were dated 27 June 2015, although the statutory declaration was made in September 2015. The application noted that there was a pending complaint against him, and sought a commencement date of 8 September 2015. A box had been ticked stating that "I have read r 13 of the Legal Profession Uniform General Rules 2015 and there is nothing further to disclose regarding matters referred to" in that rule.
7. Also supplied was a response in relation to the AA complaint, a medical certificate dated 21 March 2014 (which was relevant to one aspect of that complaint), a renewal application (dated 27 June 2015) and a statutory declaration, made in response to questions asked by the applicant, identifying some thirty appearances the respondent had made, mostly in the Local Court, but also in the Children's Court, the District Court and the Supreme Court, in July and August for various clients. The respondent maintained that in each case save one no invoice had been rendered by him and he had received no money. In one case, the respondent advised that he had received $742.50 from Legal Aid.
8. On the following day, 24 September 2015, the Executive Director of the Bar Association received a telephone call from the respondent, which included the following exchange: Biscoe said: "I am in Burwood Court and the Magistrate has questioned [my] right to appear. Why is there a question about my appearance at Burwood Court? I said: "Merely handing over a PC Application some months after the renewal period does not of itself constitute approval to practise. Your Bpay payment this morning has not been processed. There is a statutory period of 3 months for the Bar Association to process the application, but I very much hope, but doubt it, that it would take anywhere near this long."
9. A partial transcript from the Burwood Local Court on the afternoon of 24 September 2015 was in evidence. It does not include any mention of the magistrate querying the respondent's entitlement to appear. It does record: "BISCOE: Your Honour, I have spoken to the Bar Association and I have just been given some advice. Despite being told this morning that my application was received, payment received, I have now spoken with the executive director of the Bar Association who has told me they may take up to three months to determine the application to renew. I have got quite annoyed with him saying it is always done in a matter of a day. I don't understand why this has happened. I do not have a practice certificate. I am committing an offence by appearing. I have been told to withdraw."
10. On the same day the Executive Director of the Association wrote to the respondent, advising that the application was not accompanied by the required fee, and that when that was paid, it would be processed within the 90 days specified by s 464 of the Uniform Law and r 111 of the Legal Profession Uniform General Rules 2015. It also advised that he was not permitted to engage in legal practice, or represent that he was a barrister, in the interim.
11. The letter concluded: "I also note that you appeared in a hearing at Burwood Local Court this morning in the matter of R v Sukkar and informed the magistrate that you had received confirmation from the Bar Association that you are the holder of a practising certificate as a barrister. No such confirmation was given to you."
12. Contrary to what the respondent stated in the documents supplied to the applicant on 23 September 2015 as to his appearances, the primary records of the courts tendered by the applicant established that the respondent had appeared on many other occasions, including a number of Duty Barrister appearances at the Mental Health Review Tribunal. Documents obtained by the applicant from Legal Aid established that in fact it had paid claims on a number of occasions after July 2015 which had also not been disclosed in his application. A solicitor employed by Legal Aid proved that invoices had been submitted by or on behalf of Mr Biscoe, and payments made to his bank account, on: 1. 15 and 20 July ($907.50) for legal services provided at Blacktown Hospital for the Mental Health Review Tribunal on 15 July 2015; 2. 22 and 24 July ($418) for preparation for the client TV (the invoice did not expressly disclose when the work was performed); 3. 27 and 29 July ($330) for legal services provided at Blacktown Hospital for the Mental Health Review Tribunal on 27 July 2015.
13. The same schedule also recorded the $742.50 invoiced and received by the respondent for representing a client at the Children's Court Parramatta who pleaded guilty to a lesser charge which had been disclosed in the respondent's application.

October and November 2015

1. On 6 October 2015, the applicant served a noticed under s 95 of the Uniform Law requiring production of a range of documents and information, concerning among other things his dealings with his professional indemnity insurer and details of his practice since July 2015. He was also asked to confirm that the $742 was the only payment received by him for work done since 1 July 2015, and that he had refunded it. (The financial records noted above were not obtained by the applicant until 2016.) There was no response within the time specified.
2. In response to a further letter, the respondent advised that he had returned to Sydney on 21 October 2015, and that he would provide a further response addressing all requirements by 23 October 2015. That did not occur, nor at any later stage was there a further response to the notice.
3. In late September or October, the applicant distributed to various courts information that the respondent did not have a practising certificate. On 13 October 2015, the respondent appeared before Magistrate Milledge, where there was the following exchange: "HER HONOUR: Thank you, good morning. Mr Biscoe, I wonder if I could hand something down to you, please, and you just have a little read of it and you might be able to - BISCOE: What I was going to tell your Honour is that I am in the middle of changing over the status of my practising certificate from the bar to a solicitor so I just told the police prosecutor prior to your Honour actually even coming on that I was going to ask for an adjournment today because they're still in the middle of doing that. HER HONOUR: I think that's wise."
4. The matter was stood over until 29 October 2015. The applicant submitted that this involved dishonesty, because although the respondent made it plain that he could not appear, he advised the Court that "they're still in the middle of doing that" while in fact no application for a solicitor's practising certificate had even been made by that date, and was not received until the following month.
5. On 4 November 2015, the Law Society received an application for the grant of a solicitor's practising certificate. The application did not disclose the respondent's then pending application for a practising certificate from the Bar Association. Nor did it disclose any of the matters referred to in r 13 of the Uniform General Rules, which included "whether the applicant has engaged in legal practice in Australia when not permitted to do so", and whether he was the subject of an unresolved complaint or investigation or disciplinary action.
6. On 18 December 2015, Mr Biscoe wrote to the Bar Association: "Dear Ms Wright, I advise that my practising certificate was not renewed this year and that my professional indemnity insurance with Marsh was therefore not required. I would be obliged if you would send a refund for the policy addressed to myself at [xxx Street] Haberfield NSW 2045. I confirm that no practising certificate was issued for the 2015-2016 financial year. Should you have any queries please don't hesitate to contact the author. Regards, Craig Biscoe"

EN's complaint

1. From at least June 2015, the respondent had been acting for EN in respect of criminal charges originally listed for trial in July, but which were vacated and set down for trial commencing 7 March 2016.
2. The respondent exchanged correspondence with the solicitor for the Director of Public Prosecutions in the matter in August 2015 concerning a variation of bail conditions.
3. On 4 February 2016, the solicitor supplied to the respondent copies of evidence to be relied on by the Crown. The respondent advised the solicitor that another barrister had been briefed, but did not disclose who it was.
4. Bank account records demonstrate that the respondent received payments of $5,000 on 11 December 2015, $5,000 on 10 February 2016 and $5,000 on 12 February 2016 from EN. Text messages between the respondent and EN confirm that she caused the payments to be made. In March 2016, EN made a formal complaint concerning the respondent, which identified the amounts paid and in most cases attached a receipt (she also said that she had paid the respondent $2,000 in cash). The complaint included emails between the respondent and EN such as: "Hi [EN], Sorry I've been busy memorising every page of the brief. I've had my phone off so people won't ring me to other cases. If my phone is off you can call my home number [xxxx xxxx]. I will call you tomorrow. Craig."
5. EN and the respondent exchanged text messages, including two from him on 4 February 2016: "I'm happy with the transcript. Nothing really bad. Good for you" and "1st day separate trial application. 2nd day picking jury. 3rd day start of witnesses. I'm in a good mood after reading the transcript. He's a useless witness and a liar. Will be easy to destroy him. Feel like getting a bottle of wine to celebrate tonight I do."
6. On 29 February 2016, he wrote: "Just driving back home. Spent last couple weeks at parents house preparing for trial. I'll call you when I'm home - probably about 6:30."
7. On 7 March 2016 the solicitor for the DPP received an email from the respondent's email address communicating, in circumstances that need not be recorded in these reasons, that the respondent was unable to appear at the trial. Another barrister informed the court at around 10.45 that the respondent could not appear, and the matter was stood over until 9 March. Ultimately, the trial was vacated a second time, and was fixed for 30 January 2017.

Consideration

1. It should be stated at the outset that the non-participation by the respondent in this proceeding means that the Court lacks the benefit of any explanation for what appear, on their face, to be flagrant and sustained breaches of the respondent's legal and ethical obligations.
2. There is a basis to infer that some of the breaches of the respondent's obligations may have been associated with psychological and financial pressures he was experiencing at the time. The inference receives support from the contents of certain communications from the respondent to the applicant. The evidence also suggests that prior to the events outlined above, the respondent was a barrister in good standing.
3. Acknowledging as we do the possibility of extenuating circumstances which have not been disclosed to the Court, it remains necessary to evaluate the conduct of the respondent over this period and determine the appropriate response. The unchallenged evidence compels the conclusion that each of the grounds is made out. Some of those grounds, considered alone, would not suffice to warrant removal of the respondent's name from the roll. Considered as a whole, the relief sought by the applicant is warranted.
4. First, any barrister, let alone one of 10 years standing, must be taken to know the importance of maintaining a current practising certificate, and having a renewal application determined prior to 1 July. We do not accept that a barrister could believe that an undetermined application for a renewal entitled him or her to practise. In the present case, the respondent must have known that he had not even applied to renew, or for a new certificate, until he had announced his appearance in dozens of matters after 1 July 2015. That conduct involved a conscious misrepresentation of the truth to the courts and tribunals in which he appeared, to his opponents, to his clients, and to Legal Aid.
5. Secondly, any barrister must be taken to know that approved professional indemnity insurance is essential, and the respondent must have known that he lacked it when he continued to appear in the first fortnight of July 2015. The statements made by the respondent in his application for insurance as to the absence of complaints and investigations were false, and it is difficult to see how their falseness could not have been known to the respondent in light of the conversation he had with the Assistant Commissioner concerning AA's complaint. Similarly, although it is possible to have overlooked a small number of appearances in his account in his application for a practising certificate, it is very difficult to reconcile the limited disclosure of his receipt of fees with the undoubted receipts which were made to him by Legal Aid, and which had been paid into his bank account at the time he was drafting his application to the Bar Association.
6. Thirdly, the statement made by the respondent to the Local Court on 13 October 2015 that the Law Society was "in the middle of doing that", namely, issuing him a solicitor's practising certificate, was false. It is difficult to see how that could not have been false to his knowledge, because he had not supplied any application to the Law Society and would only do so some weeks later. It may be said that the respondent made it clear that he could not at present appear in the court as a legal practitioner. But the obligation of candour and honesty required by legal practitioners extends not merely to the large matter that he could not appear but also to the reason which he volunteered as to the status of his application for a practising certificate. Further, the reason proffered by the respondent was relevant to the Court's decision to adjourn the matter to a date shortly thereafter.
7. Finally, but most importantly, the respondent must have known, as he was taking thousands of dollars from EN, that he was not entitled to do so, and was committing an offence by representing that he was a barrister. It is plain that he told the solicitor for the Director of Public Prosecutions that another barrister had been briefed, but was obtaining money from EN on the basis that he would defend her at trial.
8. This Court recently addressed the applicable principles in Council of the Law Society of New South Wales v Kinchington [2017] NSWCA 278 at [28]: "[F]itness to practise law carries with it as an essential characteristic, that the person concerned exhibit honesty and integrity. As explained by Spigelman CJ in New South Wales Bar Association v Cummins: 'Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity.' There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people."
9. Neither clients nor fellow practitioners` nor the judiciary nor the public could have confidence in the respondent performing his professional obligations. The respondent's conduct falls within the description given by this Court in Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407 at [120]: "The facts which have been established reveal, in my view, that the respondent's conduct would reasonably be 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."
10. The fact that the respondent has continued to engage in legal practice, including by repeatedly making dishonest statements about his entitlement to do so, for nine months after he ceased to hold a practising certificate, makes this a clear case for making the orders sought by the applicant.
11. The Court makes the following orders: 1. Declare that Craig Anthony Peter Biscoe has been guilty of professional misconduct. 2. Declare that Craig Anthony Peter Biscoe 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 s 22 of the Legal Profession Uniform Law. 3. Order that the name of Craig Anthony Peter Biscoe be removed from the roll. 4. Order that Craig Anthony Peter Biscoe pay the costs of the Council of the New South Wales Bar Association of these proceedings. 5. Direct that the Council of the New South Wales Bar Association serve on Mr Biscoe a copy of this judgment.

Amendments 09 November 2017 - [50] Spelling of "Association" in order 5 corrected 09 November 2017 - [6] "Legal Profession Uniform General Rules (NSW)" replaced by "Legal Profession Uniform General Rules 2015 (NSW)" "providesthat" replaced by "provides that"

[19] "made in September 2016" replaced by "made in September 2015"

[20] "27 June 2016" replaced by "27 June 2015" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2017