Council of the New South Wales Bar Association v Loukas [2025] NSWCATOD 39

1. Further, s 147 of the Application Act provides as follows:

147 Early termination of proceedings before Tribunal

(1) Proceedings before the Tribunal with respect to a complaint cannot be terminated, whether by withdrawal of the disciplinary application or otherwise, before the Tribunal makes its final decision about the complaint, without the leave of the Tribunal.

(2) The Tribunal may give leave for the purposes of this section if it is satisfied that continuation of the proceedings is not warranted in the public interest.

1. An amendment pursuant to s 140 requires that the Tribunal be satisfied that the variation is reasonable in the circumstances (s 140(1)). Without limiting this, the Tribunal is to have regard to whether varying the application will affect the fairness of the proceedings (s 140(2)).
2. The applicant submitted that the primary focus of s 140 is on procedural fairness. It was contended that the applicant should be considered to be in the best position to know what concessions or amendments ought properly be made, at the time the matter is brought on for hearing. Accordingly, so the applicant submitted, there could be no warrant for the Tribunal to refuse leave to amend, unless procedural fairness is a concern.
3. The Tribunal, however, considers that procedural fairness is not the sole focus of s 140. The express words of s 140(2) are said to be "without limiting subsection (1)".
4. In Tangsilsat v Council of the Law Society of New South Wales [2019] NSWCA 144 (Tangsilsat) White JA noted at [49] that:

"The width or narrowness of the complaint was a matter the Tribunal was entitled to raise having regard to its power under s 140 of the Application Act to vary the disciplinary action on its own motion."

1. The above extract demonstrates that there are additional factors beyond procedural fairness to which the Tribunal is entitled to have regard under s 140 of the Application Act.

1. Section 147 concerns matters referrable to a "complaint". In some cases, the complaint has been treated as the entirety of the disciplinary application and therefore leave to withdraw a part of a complaint has not been dealt with under s 147: see, for instance, Council of the Law Society of New South Wales v DWO [2020] NSWCATOD 123; Council of the Law Society of New South Wales v DRM [2021] NSWCATOD 105.
2. However, in Council of the NSW Bar Association v Thorpe [2020] NSWCATOD 133, the Tribunal exercised its power to grant leave under s 147 for the withdrawal of a single ground.
3. It was there said at [35]-[36]:

"Ground 3 of the application alleged, in summary, that the admissions made by JB to A107 were unlawfully obtained, and that the respondent had reasonable grounds to believe that they were unlawfully obtained, on the basis that A107 was an informant. The respondent's omission to disclose the possible unlawfulness of the admissions was alleged to be a breach of rule 67 of the Bar Rules.

The Council has requested that Ground 3 be dismissed. We note the provisions of s 147 of the Application Act. On the basis of the material before us, there is reason to doubt that Ground 3 could be made out. We are satisfied that, in all of the circumstances, the maintenance of Ground 3 is not in the public interest. Pursuant to s 147 of the Application Act, we give leave for Ground 3 to be withdrawn and note its withdrawal."

1. As s 147 refers to proceedings with respect to the complaint, we prefer the approach that, at least in a case such as this where the grounds all relate to the same substratum of facts, that leave to amend, including the withdrawal of discrete grounds, may occur under s 140. While the submissions before the Tribunal were directed toward this possibility, we propose to consider the alternative position, in any event.

1. Both parties submitted that this was an appropriate case for leave to be granted to make the amendments.
2. We are satisfied that the proposed amendments to Ground Two are to be considered in accordance with s 140. The test is whether the amendments are reasonable in the circumstances, including with respect to procedural fairness.
3. The first aspect concerns whether the misrepresentation, which has been accepted occurred, was deliberate. In circumstances where the agreed facts are open on the evidence and support the amendment, to the effect that the misrepresentation was inadvertent, and where there is no risk of procedural unfairness to the respondent, the amendments should be made. In so saying, we recognise that in accepting the misrepresentation as not being deliberate, the seriousness of the alleged wrongful conduct is reduced from the position adopted by the applicant at the commencement of the proceedings. To this end, it is relevant that the agreed position was reached after the applicant had the benefit of seeing the evidence of the respondent. It may be inferred that, on reflection and the receipt of evidence from the respondent, the applicant has changed its position, which it is entitled to do. In the absence of some warrant to refuse the amendment, which does not appear to us to be present, we would not refuse leave to amend.
4. This has a flow on effect to the disciplinary findings (the second aspect of the amendments to Ground Two). The applicant now contends that the conduct (i.e., the inadvertent misrepresentation) amounts to unsatisfactory professional conduct and not professional misconduct. This is appropriate.
5. We would therefore grant leave to make the amendments sought to Ground Two.
6. As to the withdrawal of Grounds Three and Four, similar considerations arise. First, we are satisfied that this too is an amendment to the application and may be determined under s 140 of the Application Act, rather than by way of termination of discrete complaints, under s 147 of the Application Act. At least, as here, where the grounds all arise from the same substratum of facts, they may be treated as part of the one complaint or disciplinary application.
7. Second, there is no risk of procedural unfairness to the respondent as the proposed amendments reduce the scope of the application.
8. Finally, even though the deletion of these grounds reduces the scope of the application, as these grounds relate to the same subject matter as the grounds which are being maintained and are, seen in perspective, of lesser gravity than the grounds that are being maintained, they do not meaningfully advance the application. Conversely, the deletion of these grounds does not materially detract from the seriousness of the conduct that remains the subject of the application. In any event, as submitted by the applicant, the protective orders agreed to by the parties include the respondent undertaking further education, including in relation to direct access briefs, which incidentally would go some way to addressing these grounds, had there been anything different in them.
9. Were it necessary to consider the grant of leave to withdraw Grounds Three and Four, under s 147 of the Applicant Act, we would in any event grant leave for the following reasons:

(1) The applicant is electing not to continue with these grounds, after the receipt of evidence from the respondent.

(2) For the reasons just stated, deletion of these grounds does not materially detract from the proceedings.

(3) These grounds were not the subject of an agreement between the parties and their prosecution would require a separate hearing.

1. We do not see that it is in the public interest to continue with these grounds.
2. We grant leave to the applicant to amend Ground Two and to withdraw Grounds Three and Four.

144 Consent orders

(1) The Tribunal may, with the consent of the respondent lawyer contained in a written instrument, make orders without conducting or completing a hearing in relation to the complaint.

(2) Consent may be given before or after the proceedings were initiated in the Tribunal with respect to the complaint.

(3) If consent is given before the proceedings were initiated, an investigation of the complaint (whether commenced or not) may be dispensed with, and any investigation of the complaint already being conducted may be suspended or terminated.

(4) This section does not apply to consent given by the respondent lawyer unless the lawyer and the NSW Commissioner have agreed on the terms of an instrument of consent.

(5) Without limiting what may be included in the instrument of consent, the instrument is to contain an agreed statement of facts (including as to the grounds of complaint) and may contain undertakings on the part of the respondent lawyer.

(6) The instrument of consent must be filed with the Tribunal.

(7) Nothing in this section affects the procedures regarding the initiation of proceedings in the Tribunal where consent was given before the proceedings are initiated.

(8) If consent was given before the proceedings are initiated, the proceedings are nevertheless to be initiated with respect to the complaint in the same way as if the consent had not yet been given.

(9) The Tribunal is to be constituted in the same way as for the conduct of a hearing into the complaint.

(10) In deciding whether to make orders pursuant to an instrument of consent, the Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so.

1. Despite the parties agreeing to the disciplinary facts and form of protective orders, the Tribunal must be independently satisfied that the admitted conduct of the barrister is properly characterised as professional misconduct or unsatisfactory professional conduct, and that the protective orders are appropriate in the circumstances. The discretionary nature of the Tribunal's power under s 144 has been acknowledged in several decisions including: Council of the New South Wales Bar Association v Butland [2009] NSWADT 177 at [29]; Legal Services Commissioner v Maddock [2021] NSWCATOD 46 at [4],[17]-[18]; Council of the Law Society of New South Wales v Feng [2023] NSWCATOD 129 at [7]; Council of the Law Society of New South Wales v Elina [2021] NSWCATOD 98 at [4], [34]-[35].
2. As was summarised in NSW Legal Services Commissioner v Lal [2022] NSWCATOD 144 at [5]:

"When considering an instrument of consent, the Tribunal's task is not simply to endorse the agreement for the sole reason that it is agreed. The Tribunal's task is to make its own assessment of the matter, whilst according appropriate weight to the parties' position...."

1. Sections 296 and 297 of the Uniform Law provide as follows:

296   Unsatisfactory professional conduct

For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.

297   Professional misconduct

(1)  For the purposes of this Law, professional misconduct includes -

(a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.

(2)  For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.

1. Section 298 of the Uniform Law identifies certain other conduct that is capable of constituting unsatisfactory professional conduct or professional misconduct. Those categories include contravention of the Uniform Rules, including the Barristers Rules: s 298(b).
2. The principles are not in dispute.
3. As noted above, professional misconduct may be made out where the conduct is unsatisfactory professional conduct that involves a "substantial" or "consistent" failure to reach or maintain a reasonable standard of competence and diligence: s 297(1)(a). Relevantly, for unsatisfactory professional conduct to be found under this provision, the conduct must be in connection with the practice of law: s 296.
4. Alternatively, professional misconduct may be made out, whether in connection with legal practice or otherwise, where the conduct would "justify a finding that the lawyer is not a fit and proper person to engage in legal practice": s 297(1)(b).
5. Only one of either subsections (a) or (b) of s 297(1) of the Uniform Law need be proved, to warrant a finding of professional misconduct: Tangsilsat at [62]-[68].
6. There are no precise limits to, or fixed categories of, conduct that may warrant the imposition of disciplinary sanctions on a legal practitioner: Clyne v The New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 199-200; Bechara v Legal Services Commissioner (2010) 79 NSWLR 763; [2010] NSWCA 369 at [44].
7. In Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563, Rich J said that:

"...a charge of misconduct as relating to a solicitor need not fall within any legal definition of wrongdoing. It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure to either understand or to practise the precepts of honesty or fair dealing in relation to the courts, his clients or the public. The particular transaction the subject of the charge must be judged as a whole and the conclusion whether it betokened unfitness to be held out by the court as a member of the profession in whom confidence could be placed..."

1. In Council of the Law Society of New South Wales v Webb [2013] NSWCA 423 the NSW Court of Appeal said at [22] in relation to the definition of "professional misconduct" in s 497(1)(a) of the former Legal Profession Act 2004 (which is in almost identical terms to s 297(1)(a) of the Uniform Law):

"The distinction made by that definition is between conduct which involves a "substantial" failure to reach or maintain the required standard and conduct which involves a "consistent" failure to do so. The former directs attention to the nature and consequences of the failure, which may be sufficiently serious to raise questions as to the lawyer's competence and diligence and thereby warrant the description "substantial". The reference to a "consistent failure" is to ongoing or persisting acts of failing on different occasions to reach or maintain the required standard. The same or similar failures which occur on a series of related occasions and are explained by an overarching error of judgment on the part of the lawyer (which is not itself the or a relevant failure which is the subject of complaint) do not involve a "consistent failure" in the sense in which that expression is used in this definition."

1. The Court of Appeal in New South Wales Court of Appeal in Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 stated the relevant considerations when determining who is a fit and proper person under s 297(1)(b) at [169]:

"...as the majority judgments in Ziems, (particularly that of Kitto J show), a finding of unfitness involves more than an objective analysis of the impugned conduct, absent often relevant (often extenuating) circumstances. The question of fitness to engage in legal practice focuses not only on the objective circumstances of the conduct in question but also on the personal qualities of the lawyer in question, and other circumstances that bear upon the conduct. Unfitness is ultimately a finding about character, although conduct plays an important role in the evaluation of character."

1. In Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407 the Court of Appeal made extensive observations in relation to the statutory term "in connection with" at [51]-[52]. It is a relational term, that can be described as "having to do with". The nature and strength of that relationship may vary.
2. The test for whether a person is engaged in the provision of legal services as a barrister is set out in s 6 of the Uniform Law, which relevantly defines "engage in legal practice" to include "practise law or provide legal services, but does not include engage in policy work". Legal services are defined to mean "work done, or business transacted, in the ordinary course of legal practice": s 6 of the Uniform Law; Council of the New South Wales Bar Association v Mack [2024] NSWCATOD 120 at [41].
3. In determining whether a practitioner's activities occur in connection with his or her legal practice, the Tribunal is to assess the true character of the overall dealings, specifically, the practitioner's activities and the relationship with the client: Vaughan v Legal Services Board (2009) 25 VR 536; [2009] VSCA 187 at [60]- [61], referring to Carr v Swart [2007] NSWCA 337; Solicitors' Liability v Gray (1997) 77 FCR 1.

1. Here, we are particularly concerned with two types of conduct: first, what might be described as offensive conduct; and second, misrepresenting the professional nature of the relationship between barrister and client.
2. Offensive conduct has been held capable of constituting professional misconduct. For instance:

(1) In Council of the Law Society of New South Wales v Sideris [2024] NSWCATOD 3, the practitioner was found guilty of professional misconduct for, inter alia, sending discourteous correspondence to a solicitor and to the representatives of the client of that solicitor in proceedings.

(2) In Council of the Law Society of New South Wales v Malakhov [2023] NSWCATOD 182, the Tribunal accepted that the solicitor was guilty of professional misconduct by, in the course of representing a client in domestic violence proceedings, making a statement to the wife of the client which grossly exceeded the legitimate assertion of the rights of his client in a domestic violence dispute (contrary to r 34.1.1 of the Uniform Rules) that intimidated her or could reasonably be seen to intimidate a person in her position.

(3) In Council of the Law Society of New South Wales v King [2018] NSWCATOD 157 (King) the practitioner forwarded a letter to the Associate of a Judge who was presiding over proceedings in which the respondent's client was a party. The letter contained comments which were derogatory of the client and the partner of a client, and contained information of a confidential kind and was prima facie the subject of legal professional privilege. The Tribunal considered that this conduct, aggregated with the practitioner's subsequent threatening behaviour and improper demand for immediate payment of costs, constituted professional misconduct.

(4) In Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 the practitioner, after the dismissal of an extension of time application in the Federal Court, sent an email to the Judge's Associate attaching a letter containing serious allegations against the Judge and requesting that the Judge vary his decision.

(5) In Ellis v Law Society [2008] EWHC 561, the practitioner conducted "inappropriate, offensive and derogatory" correspondence directed to and about the Law Society, a litigant, members of the judiciary and others which "crossed the line" in terms of acceptable criticism: at [33].

1. In relation to the conduct the subject of Ground Two, the misrepresentation was inadvertent. Nevertheless, the conduct occurred in the context of a professional conduct investigation. Owing to the high standards generally expected of legal practitioners, a practitioner subject to an inquiry is under a duty to assist with the investigation in good faith. The applicant relies on the following cases to support the proposition that careful attendance to these obligations is a part of proper professional conduct:

(1) In Legal Practitioners Conduct Board v Lind (2011) 110 SASR 531; [2011] SASCFC 104, the practitioner failed to assist the Board over the course of its inquiries in relation to the practitioner's unprofessional conduct and failed to respond to repeated requests of the Board over several years. The Supreme Court of South Australia considered the practitioner's unprofessional conduct in her dealings with the Board "very serious": at [16].

(2) In Law Society of New South Wales v Grech [2006] NSWADT 73 the Tribunal found that the respondent had clearly and unjustifiably failed to assist and co-operate with the Law Society in its investigation of a complaint, where he was "obliged to provide appropriate assistance": at [109]. The respondent sent a letter in response to the Law Society's various letters which did not provide any answers to the Society's questions, and also failed to forward to the Society many of the documents it requested: at [107] and [110].

(3) In Council of the New South Wales Bar Association v Dwyer [2015] NSWCA 302, the practitioner engaged in conduct on six separate occasions that was knowingly deceptive or misleading of the Council in dealings with the Council in relation to his position and conduct as a legal practitioner. The Court of Appeal concluded that a person who did so is guilty of professional misconduct and, further, "is not a fit and proper person to remain on the Supreme Court Roll.": at [32].

(4) In Malfanti v Legal Profession Disciplinary Tribunal [1993] NSWCA 171 at 7 the Court of Appeal recognised the principle that a solicitor who appears before the Tribunal is bound to assist in its investigations.

1. In Johns v Law Society of New South Wales [1982] 2 NSWLR 1 Moffitt P said at 6:

"The obligation to inform and assist has always been regarded as

resting upon a solicitor or barrister whose conduct is the subject of an inquiry

whether by the court or the committee, as appears in the court's observations

on numerous occasions, an example being in Re Veron; Ex parte Law Society

of New South Wales (1966) 84 WN (Pt 1) (NSW) 136, at p 141."

1. Again, the principles were not in dispute. However, we are conscious that each case must be decided on its own factual circumstances and what might be an appropriate protective order in one case may not suffice in another, or be excessive in yet another case.
2. The jurisdiction of the Tribunal is protective, not punitive: Law Society of New South Wales v Bannister (1993) 4 LPDR 24. That protective function contains elements of both individual and general deterrence. As Beazley JA said in Law Society of New South Wales v Walsh [1997] NSWCA 185 at 40:

"The court's duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner who is the subject of the disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. Thus, it is relevant to take into account the effect the order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of solicitors. In this sense, any penalty imposed should contain an element of general deterrence, 'publicly marking the seriousness of what the instant solicitor has done'."

1. In Law Society of New South Wales v Maharaj [2017] NSWCATOD 79 at [24] the Tribunal summarised the considerations applicable to the formulation of relevantly appropriate protective orders:

"(1) the gravity of the misconduct

(2) the deterrent effect of any protective order on the further conduct of the practitioner

(3) the deterrent effect of any protective order on the conduct of other practitioners;

(4) the enhancement of confidence in the public in the integrity of the profession"

1. Section 302(1) of the Uniform Law provides that upon a finding that a lawyer is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may make "any orders that it thinks fit". A finding of professional misconduct does not require a protective order that either the name of the practitioner be removed from the roll, or that the practitioner be suspended from practice: A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1 at [15]; Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 210. An order for roll removal is only appropriate where it is demonstrated both that the lawyer is presently not fit to practise and is likely to be unfit for the indefinite future: Council of the Law Society of New South Wales v Green [2022] NSWCA 257 at [67] cited in de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard (No 2) [2024] NSWCA 299 at [241] (per Gleeson JA).
2. Nevertheless, circumstances may make such an order necessary. For instance, in Council of the Law Society of New South Wales v Sideris (No 2) [2024] NSWCATOD 121, the Tribunal found it necessary to recommend removal of the practitioner's name from the roll because of his "continuing pattern of behaviour, his lack of demonstrable insight, and his attitude towards the Law Society as regulator and the Tribunal in disciplinary proceedings which are ultimately concerned with the protection of the public, are damaging to the standing of the legal profession": at [135].
3. The Tribunal in that case emphasised the need for deterrence when considering the appropriate protective orders to be made: at [133]-[134]. In addition to protecting clients and other members of the profession, removal of a practitioner's name from the roll is ultimately concerned with maintaining the reputation of the legal profession and public confidence in it: Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 at [49].
4. In Council of Law Society of New South Wales v Rogers [2021] NSWCATOD 124 the Tribunal considered that the finding of professional misconduct against the practitioner warranted a reprimand.
5. In Council of the New South Wales Bar Association v Levick (No 2) [2018] NSWCATOD 108 at [54]- [56] the Tribunal considered the function of a reprimand in serving the protective purpose of disciplinary proceedings. Particularly, at [56] the Tribunal said:

"In our view a reprimand should bring home to the respondent and other members of the profession the seriousness and the necessity of being truthful in their professional dealings with the applicant and in their other professional dealings. We are therefore of the view that a reprimand is appropriate in this case."

1. In Council of the Law Society of New South Wales v Bunton [2020] NSWCATOD 67, the Tribunal made observations regarding the sufficiency of a reprimand in meeting the seriousness of the impugned conduct amounting to professional misconduct in all the circumstances. The Tribunal said at [30]:

"Whilst we are satisfied that the finding of professional misconduct is made out, the penalty imposed should be reflective of the seriousness of the offence. We think that a reprimand is an appropriate penalty. There is no evidence of the Solicitor having any other relevant adverse disciplinary history and he has readily admitted his misconduct, and the seriousness of it. He has also co-operated with the Law Society and has demonstrated a clear understanding of the seriousness of his conduct in the way he has presented his response to the application to the Tribunal. We are conscious that an order of this kind will be given publicity through the internet and should not be regarded as an insignificant penalty."

1. In Council of the Law Society of NSW v Petrovich [2019] NSWCATOD 44, the Tribunal considered that the solicitor's conduct did not warrant a finding that he was not a fit and proper person to retain his practising certificate, or warrant an order such as a suspension or the imposition of practising conditions. The Tribunal said at [28], in relation to the appropriateness of a reprimand:

"The Instrument of Consent appropriately reflects orders which are commensurate with the circumstances and which adequately protect the public interest. In coming to these views we have had regard to the fact that the solicitor has cooperated with the Law Society in these proceedings, has acknowledge his failures and has taken steps to ensure non-compliance with undertakings in the future is most unlikely to occur. His record is relatively unblemished and his referees speak well of him."

1. The Tribunal accepts the agreed facts in relation to the Introduction and the Complaint, as set out above.

1. As to the agreed facts in relation to Ground One, we are satisfied from the evidence of the correspondence that the statements set out in the agreed facts were made.
2. Further, we are satisfied as follows:

(1) The respondent was aware that Person A had expressed her view that she feared the Client and had been controlled by him for years.

(2) The email to Person B of 4 September 2019 uses intemperate, pejorative, offensive and abusive language in, inter alia, suggesting Person B was controlling of her daughter and acting in a fashion that was detrimental to her daughter's health. It was a personal attack on Person B and also disparaging of Person A. It also expresses personal views.

(3) The email of 5 September 2019 is in hostile and insistent terms that Person A speak directly to the Client, which, in the context, was intimidatory. It also expresses personal views.

(4) The email of 14 September 2019 to the Client purports to advise the Client of his "entitlement" (which, in the context of correspondence from a barrister, even if that barrister is a family member, suggests a legal entitlement) to correspond directly with Person A and that correspondence was forwarded to Person B, which taken in context, was threatening and intimidatory. It also ignored the expressed fears and concerns of Person B.

(5) The email of 7 October 2019 to both Person A and Person B threatening that defamation proceedings would be taken unless certain action was taken by them was threatening, intimidatory and hostile in context. The correspondence expressed personal views about Person A's allegations of domestic violence and had the potential to improperly interfere with Person A's decision making about her involvement in legal proceedings.

1. There are several examples in the authorities where abusive or threatening correspondence was seen as amounting to professional misconduct. These are referred to above.
2. Professional misconduct involving a substantial departure from appropriate standards as contemplated by s 297(1)(a) of the Uniform Law, concerns conduct in connection with legal practice. As the respondent was acting as a barrister at this time (for reasons set out in relation to Ground Two) the conduct in sending the correspondence the subject of Ground One was in connection with legal practice.
3. The agreed facts include that the correspondence of 5 September 2019, 14 September 2019 and 7 October 2019 each taken individually was unprofessional and amounted to professional misconduct. The Tribunal is satisfied that these pieces of correspondence each reflect conduct which was inappropriate and unprofessional. The correspondence is aptly described as threatening, intimidating, and expressing personal views.
4. The conduct represented a substantial departure from the maintenance of a reasonable standard of competence and diligence. It was a substantial departure because the conduct was far removed from the measured, temperate and rational correspondence one expects from a barrister. It was instead peppered with personal attacks and personal views in relation to a person who the respondent knew was considered, at least by his Client and Person B, to be a vulnerable person. This is not to suggest that lawyers may not issue correspondence in stern terms or correspondence that speaks of serious consequences. However, one should be able to expect the correspondence of a lawyer to be rational and reasoned and not a personal attack; even where the surrounding circumstances are fraught with stress and anxiety. Adapting the words from King at [46]: "the public is entitled to assume that [barristers] will maintain appropriate standards of conduct even in stressful circumstances".
5. We are satisfied that the conduct in relation to the correspondence of 5 September, 14 September and 7 October amounts to a substantial departure from the reasonable standard of competence and diligence and that the conduct amounts to professional misconduct within the meaning of s 297(1)(a) of the Uniform Law.
6. The Instrument of Consent does not engage with the characterisation of the email of 4 September 2019. Ultimately, it is not necessary for us to decide whether the email of 4 September 2019 amounted to unsatisfactory professional conduct, as we are satisfied Ground One is already made out by reference to the remaining pieces of correspondence.
7. We note that the agreed facts also include reference to the remorse of the respondent and his insight into why his conduct was inappropriate. We accept that this is relevant to the protective orders, but do not consider here, that it affects the characterisation of the respondent's conduct (that is the finding that the respondent is guilty of professional misconduct in relation to Ground One).

1. We are satisfied that, as particularised, the correspondence between approximately 31 August 2019 and 9 April 2020, sent by the respondent, establishes that he was engaged in the provision of legal services as a barrister.
2. In particular:

(1) The emails referred to in the agreed facts are sent from his barrister's chambers.

(2) The emails variously refer to the respondent's "client", and refers to him as a "the legal representative of' the Client and are signed off as a barrister.

(3) The email of 1 September 2019 to Person B refers to the commencement of legal action.

(4) The email of 5 September 2019 is signed off as "Barrister-at-Law".

(5) Correspondence to the Client includes legal advice.

1. Although in response to a query by the applicant, the respondent wrote to the applicant maintaining that he was engaged in a "private capacity", that assertion is undermined by his subsequent statement that he was "assisting [the Client] in dealing with correspondence received by [Person B]." That conduct squarely falls within the definition of legal services when one looks to the nature of the correspondence outlined above.
2. We are satisfied that the respondent was engaged in a professional relationship with the Client.
3. In advising the applicant that the relationship was personal, the respondent misrepresented the nature of his relationship with the Client. Nevertheless, we accept that this was inadvertent given the familial nature of the relationship, the absence of a retainer and that no fees were charged. As most of those emails had the respondent's Barrister's email footer at the end of each email including details such as his Chambers and its contact details, a person receiving those emails, and viewing the footer of those emails, would have considered the respondent was acting in his capacity as a barrister, and not simply as a relative of the Client, which the respondent accepts.
4. The respondent's conduct falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer within the meaning of s 296 of the Uniform Law. This is in circumstances where the applicant was asking the question in the context of a disciplinary investigation, the answer to which had the capacity to assist or detract from the progress of the inquiry.
5. One might have expected the respondent to reflect on his conduct and anticipate that a layperson (or even solicitor) would interpret his communications as coming from a barrister. The respondent did not do anything to make his intention to act in a private capacity clear to the recipients of the communications. In light of the high standards expected of this respondent as a barrister, he should have assessed and determined the nature of his relationship with the Client from an objective perspective. Even if this had not been adequately done at the commencement of the professional relationship with the Client, when the matter came to the applicant's attention and the applicant approached the respondent, this was the time for careful and calm reflection. We are satisfied that, had this been done, the correct position would have been represented at the first opportunity.
6. Even though we accept that there was no deliberate misleading of the applicant, the conduct represented a departure from the requisite standard of competence and diligence contained in s 296 of the Uniform Law.
7. The respondent is guilty of unsatisfactory professional misconduct. As we have accepted the misrepresentation was inadvertent, we also accept that the departure was not significant in the sense of raising the conduct to professional misconduct.

1. The parties have agreed to protective orders. These are set out above.
2. At the hearing, the Tribunal invited the parties to make further submissions in relation to why these protective orders were sufficient and whether there was a legitimate additional protective purpose in making other orders. For instance, we noted that the Tribunal has the power to suspend a practitioner: s 302(1)(h), Uniform Law. Also, the Tribunal may recommend that a person's name be removed from the roll: s 302(1)(f). We are mindful that despite some of the conduct amounting to professional misconduct, such orders were not sought.
3. Ultimately, the Tribunal has come to the view that the protective orders agreed by the parties are appropriate. This is for the following reasons:

(1) The respondent has provided evidence that proves his remorse is genuine and that he understands why the conduct he engaged in was wrongful. For instance, he has said:

(a) he regrets a number of the statements used in the correspondence set out in the agreed facts;

(b) he agrees that in some of the correspondence he became personally involved and lacked detachment;

(c) he concedes that he did not know at the time whether it was appropriate to communicate as a private person or barrister, and regrets that the lines became blurred;

(d) he concedes that, in hindsight, the involvement of appropriately qualified third parties would have been a sensible and reasonable approach, and that it was remiss of him not to suggest this;

(e) he concedes he lacked insight in relation to these matters and is sorry for it;

(f) in relation to his correspondence with the interstate Police, he regrets stating that he acted for the Client, and regrets including his personal opinion in the letter in circumstances where he lacked objectivity and personally knew the parties and the personalities involved; and

(g) he notes that he was wrongly focusing on the fact that he was attempting to assist the Client privately, and that his misrepresentation was inadvertent.

(2) He has admitted to some of his conduct amounting to professional misconduct, a very grave admission; and does not shy away from the wrongful conduct.

(3) He does not try to justify his conduct and unreservedly accepts it was wrongful.

(4) He acknowledges that he applied his good intentions "so inaptly" and deeply regrets the pain and offence caused.

(5) The conduct is all related to a single substratum of events concerning a family member.

(6) He has admitted that his professional judgment was clouded by the conflict of interest in him acting for his family member. This, in particular, may be addressed by further education, which is planned as part of the agreed to protective orders.

(7) The respondent has cooperated with the applicant and the Tribunal to resolve these proceedings in an efficient manner.

1. In the circumstances, we are satisfied that the respondent's conduct does not warrant a finding that he is unfit to practise now or in the future and therefore it is appropriate that he retain his practising certificate. The conduct is all within the same substratum of events and might be described as an anomaly, fuelled by personal circumstances which he now understands should have led him to not act at all; but also makes it unlikely to be repeated.
2. As the conduct is unlikely to be repeated, therefore, in respect of specific deterrence or orders specifically designed to affect the respondent, these orders are appropriate.
3. In respect of general deterrence, the way in which these proceedings have ultimately been brought and the intense remorse and admissions by the respondent indicate that this is not a proceeding that has demonstrably wider implications. It is limited to its unusual facts. While an incident of the protective orders imposed will be to publicly mark the seriousness of the respondent's conduct, this is sufficient to act as general deterrence, as this case has limited utility in protecting the public from similar defaults by other practitioners.
4. In conclusion, we are satisfied that in the unique circumstances of this case, the proposed protective orders are sufficient to protect the public with respect to this particular barrister as we are satisfied the conduct will not be repeated, but also it has the necessary wider protective effect by acting as a reminder of a barrister's obligations to consider their actions carefully, especially when family members are concerned, and keeping one's professional obligations at the forefront.

1. We note that the respondent has agreed to pay the applicant's costs and disbursements incurred to date on the indemnity basis. The Tribunal has power to make such an order pursuant to clause 23 of Sch 5 of the NCAT Act.

1. Ultimately, we are satisfied that the Instrument of Consent:

(1) contains an appropriate statement of the relevant facts as supported by the evidence;

(2) contains an appropriate acknowledgement by the respondent that the conduct occurred as detailed; and

(3) contains an agreement for measures for protective orders which we consider appropriate.

1. It follows that we should make orders in accordance with those contained in the Instrument of Consent.

1. The Tribunal orders, by consent, that the respondent:

(1) be reprimanded;

(2) pay a fine to the applicant of $5,000;

(3) undertake, complete and pass any reasonable educative course that the applicant requires him to undertake being the following courses (or any other course as agreed by the Applicant) within 12 months from the date the orders are made:

(a) NSW Bar Association CPD seminar entitled 'Mastering Direct Access: Navigating Pitfalls and Best Practices';

(b) Law Society of NSW seminar entitled 'Deepening your knowledge of Domestic and Family Violence: Mastering a trauma informed approach to practice'; and

(c) In Good Faith Foundation CPD seminar entitled 'Trauma informed Legal Education'.

(4) provide a statutory declaration to the applicant within 1 month of completing the educative courses referred to above and confirm that he has completed the learning and to describe what he has learnt within those courses; and

(5) agrees to pay the applicant's costs and disbursements incurred to date on the indemnity basis,

(6) with respect to the Application, by consent, order that Grounds 3 and 4 in the Application filed 8 August 2023 be discontinued; and

(7) that Ground Two be amended to be as set out in the Instrument of Consent.

(1) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act):

(a) The respondent's client will be referred to as "the Client".

(b) The former wife of the client will be referred to as "Person A".

(c) Person A's mother will be referred to as "Person B".

(2) The parties have 28 days to exchange and file with the Tribunal any submissions as to whether the confidentiality orders made under s 64(1)(a) of the NCAT Act should not be continued.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.