Barristers Posting Homophobic Notices in Lifts of Chambers’ Building Found Guilty of Professional Misconduct
In Victorian Legal Services Commissioner v Perry [2025] VCAT 343 and Victorian Legal Services Commissioner v Squirrell [2025] VCAT 244, each decided 17 April 2025, the Tribunal, before a Vice-Presidential Judicial Member, made findings of professional misconduct against two barristers who posted a homophobic notice in each of four lifts in Owen Dixon Chambers East in Melbourne. The lifts were accessible to barristers and members of the public. Each barrister pleaded guilty to professional misconduct. In Perry, the Court wrote:
…
[7] Mr Perry was admitted to legal practice in Victoria on 1 November 1979. At all relevant times he has held a practising certificate entitling him to practise as a barrister. He has not been subject to disciplinary conduct findings in the past.
[8] On 8 August 2022 at 9.27 pm, Mr Perry sent Mr Squirrell, another barrister, an email with an attached document which bore a logo similar to the Victorian Bar logo (the notice). Mr Perry was the author of the notice. The email subject was ‘A new development’ and the text of the email was ‘This is going in the lifts tomorrow’. The notice read:
ESTABLISHMENT OF LGBTQMS REVIEW COMMITTEE
Member of the Bar identifying with one (or more) of the minority groups represented by the anagram above have expressed concerns that briefs from various large litigators both governmental and private have not been disproportionately directed to them.
It is resolved to form a sub-committee to investigate the basis of this concern, how many barristers are affected and what steps can be taken to alleviate the situation.
Membership is open to all members of more than ten years call, be they junior or silk, who fall into at least one of the characters thus, white, male heterosexuals will not be eligible to serve.
The letters ‘MS’ may require explanation. It refers to mud screwers because as the American Jewish comedian the late and great Lenny Bruce once said—Some guys would screw mud.
Expressions of interest should be lodged on the fifth floor, Owen Dixon Chambers East and close on 30 August 2022.
VICTORIAN BAR
10 August 2022
[9] On 8 August 2022, Mr Squirrell printed four copies of the notice at his home. On 10 August 2022, Mr Squirrell displayed a copy of the notice in each of four lifts at Owen Dixon Chambers East. The lifts were accessible to members of the Victorian Bar and members of the public.
[10] The notice was removed from the lifts by an officer of the Victorian Bar on the morning of 11 August 2022.
[11] The fact of the notice and its display was reported in the Herald Sun on 17 August 2022 and The Age on 17 and 18 August 2022.3
Investigation of the complaint and VCAT proceedings
[12] On 17 August 2022, the Victorian Bar made a complaint to the VLSC about Mr Perry.
[13] On 29 August 2022, the VLSC wrote to Mr Perry notifying him of the complaint and their intention to conduct a preliminary assessment of the complaint.
[14] On 15 September 2022, the VLSC wrote to Mr Perry and advised they had decided to investigate the complaint and required that he provide particular information pursuant to s 371(1) of the Legal Profession Uniform Law (Victoria) (Uniform Law).
[15] On 16 September 2022, Mr Perry provided his preliminary response to the notice of decision to investigate the complaint. In this response he admitted to sending the email but did not concede the notice was offensive. He characterised the communication as private and that its purpose was to poke fun rather than cause offense. Mr Perry also raised concerns that the Victorian Bar email system had been hacked.
[16] On 10 October 2022, in a statutory declaration, Mr Perry admitted that, upon reflection, the notice was offensive and resiled from his previous statement that it was not so. Mr Perry clarified that he was the sole author and creator of the notice and stated that his motive was to poke fun at political correctness and wokeism rather than cast aspersions at minority groups.
[17] In response to requests from the VLSC for further information, by letter and statutory declaration dated 21 December 2022, Mr Perry, among other things, stated that he did not know the identity of the person who placed the notice in the lift, and that he did not anticipate the notice would be so placed.
[18] On 19 December 2023, Mr Perry advised the VLSC he would plead guilty to a charge of professional misconduct on the basis of a breach of r 8(a) of the Uniform Conduct (Barristers) Rules 2015 (Conduct Rules). He also agreed he would consent to the penalties which are now agreed between the parties.
[19] On 28 June 2024, the VLSC commenced proceedings at the Tribunal. The original application outlined six charges against Mr Perry.
[20] On 20 August 2024, Mr Perry agreed he would plead guilty to one charge of professional misconduct as above (charge 4 of the original application).
[21] On 21 August 2024, the VLSC filed an amended application for orders, with the one charge of professional misconduct against Mr Perry.
…
THE CHARGE
[26] Charge 1 states that Mr Perry engaged in:
Professional misconduct within the meaning of s 298(b) of the Uniform Law and r 8 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (Conduct Rules) in that, on 8 August 2022, the Respondent engaged in conduct discreditable to a barrister and in doing so contravened rule 8(a) of the Conduct Rules.
PARTICULARS
- On 8 August 2022, the Respondent created a demeaning, humiliating and/or offensive and discriminatory notice;
- The Respondent sent the notice by email to another barrister, Mr Robert Squirrell, with the subject ‘A new development’ and the text ‘[T]his is going in the lifts tomorrow’;
- The notice was subsequently placed in four lifts at Owen Dixon Chambers East, 205 William Street, Melbourne, on 10 August 2022 by Mr Squirrell;
- By creating the notice and sending it to Mr Squirrell, the Respondent enabled the notice to be displayed in the lifts at Owen Dixon Chambers East, 205 William Street, Melbourne, and was reckless as to whether his conduct so enabled the display of the notice, and whether Mr Squirrell would display the notice.
…
CHARACTERISATION
[29] The parties have agreed the conduct is characterised as professional misconduct under s 298(b) of the Uniform Law.
[30] As stated by Deputy President Lambrick in Pharmacy Board of Australia v Hopkinson:
The principles that apply to our approach to such an Agreed Statement are well established. The agreement between the parties is a highly relevant matter for our consideration with respect to the factual findings, the characterisation of those findings and the determinations that should be imposed. It remains, of course, our duty to determine these matters and no agreement between a regulator and the professional person under review can supplant that duty. Nevertheless, departure from an agreed position ought not take place without clear or exceptional reason. The Tribunal will not lightly depart from an agreed sanction where the negotiated settlement and proposed penalty are broadly speaking within the permissible range, having regard to all the circumstances. The Tribunal will, however, reality test and hear submissions in relation to any joint proposal.
[31] The Tribunal’s duty is to determine whether the allegation is proven, consider the characterisation of the allegation and impose the relevant sanction. This duty cannot be supplanted by an agreement between the parties.
[32] Conduct capable of constituting professional misconduct under s 298 of the Uniform Law includes (b), conduct consisting of a contravention of the Uniform Rules. Section 6 of the Uniform Law defines Uniform Rules as including Legal Profession Uniform Rules made under Part 9.2, with section 419 of that part empowering the Legal Services Council to make ‘Legal Profession Uniform Rules with respect to any matter that by this Law is required or permitted to be specified in Uniform Rules or that is necessary or convenient to be specified for carrying out or giving effect to this Law.’ The Legal Profession Uniform Conduct (Barristers) Rules 2015 were made by the Council pursuant to this section of the Uniform Law.
[33] Rule 8 of the Conduct Rules provides that ‘[a] barrister must not engage in conduct which is: (a) dishonest or otherwise discreditable to a barrister’.
[34] The Macquarie dictionary defines ‘discreditable’ as to bring discredit. Discredit is defined as:
—noun 3. Loss or lack of belief, of confidence, disbelief; distrust.
4. loss or lack of repute or esteem; disrepute.
5. something that damages a good reputation.
[35] The joint submissions submit Mr Perry’s conduct was discreditable: he authored a note purporting to be on Victorian Bar letterhead that was demeaning, humiliating, offensive and discriminatory and sent it to a colleague reckless as to whether the notice would be displayed and the harm it would cause.
[36] The joint submissions submit discreditable should take its usual meaning and that it describes a wide range of conduct that is unbecoming of the office of a legal practitioner.
[37] In Victorian Legal Services Commissioner v Lewenberg, a lawyer’s conduct was described as discreditable for allowing religious or cultural solidarity to take precedence over his professional obligation to uphold the principle of equality before the law.
[38] In Legal Services Commissioner v Merkin, the barrister’s conduct included persisting with an appeal ground alleging interference with a transcript, when there was no evidence to support the assertion, and raising a question about the integrity of a judicial officer. The circumstances in the charges were described as ‘…discreditable for a barrister and were likely to diminish public confidence in the administration of justice…’.
[39] Referring to disciplinary cases in other fields, the submissions reference Psychology Board of Australia v Goode, where a psychologist who had referred, amongst other things, to homosexuality as ‘distasteful’ was described as expressing discreditable views.
[40] Further, the joint submissions reference Nursing and Midwifery Board of Australia v Wilcox, where an enrolled nurse’s offensive correspondence, which included homophobic remarks, was held to be professional misconduct.
[41] The words used in the notice written by Mr Perry are not in dispute. With respect to the context and circumstances in which the notice was written Mr Perry has stated:
(a) He was the sole author and creator of the notice;
(b) He sent the notice in a private email as a joke;
(c) He admitted, on reflection, the notice was offensive and resiled from his preliminary response that he did not consider it offensive; and,
(d) His motive was to poke fun at political correctness and wokeism rather than cast aspersions at minority groups.
[42] The joint submissions submit that professional misconduct under s 298 of the Uniform Law does not need to be tied to the definitions in sections 296 and 297. Connection with the practice of law is not necessary for proof of professional misconduct under section 298.
[43] Mr Perry concedes his conduct was discreditable as he authored the notice purporting to be on Victoria Bar letterhead that was demeaning, offensive, humiliating and discriminatory towards members of the lesbian, gay, bisexual queer and trans community and to members of the general community.
[44] The notice is offensive because of the following two meanings.
[45] Firstly, the inclusion of ‘MS’ in the LGBTQI acronym, referencing ‘mud screwers’, has the implicit meaning that the sexual preference of members of the LGBTQI community is akin to ‘screwing mud.’ The notice suggests sexual deviancy by members of LGBTQI community.
[46] The suggestion that sexual deviancy attaches to the LGBTQI community in the present day is offensive, both legally and socially. It is contrary to principles of equality and is legally discriminatory. Gender identity and sexual orientation are attributes the basis of which discrimination is prohibited by Victoria’s Equal Opportunity Act 2010 (Vic). Homosexuality was decriminalised in Victoria over 40 years ago. On 9 December 2017, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) amended the Marriage Act 1961 (Cth), recognizing marriage as the ‘the union of two people to the exclusion of all others.’ On a social level it reveals a disrespectful and demeaning attitude towards members of the LGBTQI community.
…
[48] Secondly, the phrase in the notice that members of the LGBTQI community ‘have expressed concerns that briefs from various large litigators both governmental and private have not been disproportionately directed to them’ suggests members of the LGBTQI community receive briefs on the basis of identification with the LGBTQI community. This is an affront to those barristers’ professional standing.
…
[49] As Mr McDermott stated:
The notice reflects adversely on all of us as it suggests to the world at large ‘you’re not welcome here because there is something wrong with you’ and/or that you are just some sort of walking protected attribute getting briefs without experience or merit.
[50] Both messages, of sexual deviancy and undeserved briefs, convey an impermissible attitude to the LGBTQI community and are antithetical to the inherent principles relevant to the uniform and consistent application of the law and general principles of equality, fairness, diversity and inclusion.
[51] The conduct did not occur in the course of Mr Perry’s professional practice, so no clients were directly affected. However, the conduct is indirectly connected to legal practice. Firstly, it was displayed in the four public lifts in his workplace, Owen Dixon Chambers East, and was able to be viewed by barristers and members of the general community. Secondly, as referred to above, it implies barristers from the LGBTQI community receive undeserved briefs. Thirdly, the logo on the notice was similar to the official Victorian Bar logo, so sought to attribute the views in the notice to the Victorian Bar, the barrister’s professional body.
[52] Mr Perry has admitted the conduct alleged in the charge, he has admitted its characterisation as professional misconduct and pleads guilty.
[53] The imputation of both deviancy and the unmeritorious receipt of briefs by barristers in the LGBTQI community is objectively offensive and demeaning. For these reasons the conduct constitutes discreditable conduct by a barrister. Taking into account the agreed facts and the plea by Mr Perry, I am satisfied professional misconduct is established on the balance of probabilities. The notice was authored by Mr Perry and, by sending it to Mr Squirrell, he was reckless as to whether it would be publicly displayed. This conduct constitutes discreditable conduct which would reasonably be regarded as disgraceful or dishonourable by barristers of good repute and competency.
[54] I am satisfied the characterisation of the conduct is professional misconduct under s 298(b) of the Uniform Law in contravention of Rule 8(a) of the Barristers Conduct Rules.
…
[60] Mr Shaw made a plea in mitigation on Mr Perry’s behalf and made the following submissions (summarised):
- Mr Perry has been in legal practice for 45 years, 40 years as a barrister. His practice in the common law shrunk to 10% of its previous volume during the COVID-19 pandemic and never recovered. Although now largely retired from practice, he volunteers and does pro bono work for the Southport Community Legal Service in criminal and family violence cases. He is now supported by the aged pension which is supplemented by occasional paying briefs.
- Within four weeks of the notice being placed in the lifts, Mr Perry ‘…reflected on the matter, … he displayed insight into his conduct and accepted that the note was offensive.’ Mr Perry has read the letter by Mr McDermott and fully appreciates the note is offensive on the grounds detailed above.
- Further, Mr Perry admits by authoring the notice he enabled the actions of another, Mr Squirrell, and was reckless as to whether it was publicly displayed.
- Mr Shaw submitted a reprimand will ‘…sully his reputation and he will be severely embarrassed.’ The embarrassment will emanate from family, friends, colleagues, the profession and the public becoming aware of his conduct. Mr Shaw submitted this was ‘both educative and a denunciation of his actions’ and meets the purpose of general deterrence.
- Mr Shaw submitted Mr Perry is not homophobic. For twenty years he attended at St Agnes Anglican Church in Glenhuntly, a congregation which openly welcomed attendance by members of the LGBTQI community. He was a lay Deacon and worked alongside Vicar Nigel Wright.
[61] In a character reference written on his behalf, Mr Perry was described as mild in demeanour, and that his actions were out of character and not reflective of his opinions. The evidence of Mr Perry’s otherwise good character is supported by the submissions about his voluntary pro bono work and ministrations in his church.
[62] I take into account Mr Perry’s plea of guilty to the serious charge of professional misconduct which is an indicator of his remorse. I note he has no prior matters alleged against him.
[63] He has admitted the offensive imputations in the notice he authored and that he was reckless as to whether it was displayed.
[64] The factual context of this charge is unique. It has the hall marks of a university ‘prank’ were it not for the age of the protagonists and the offensive nature of the notice. Mr Perry does not have any prior disciplinary matters alleged against him and has led a successful career as a barrister, until this incident. It constitutes a serious lapse of judgment.
[65] I accept the proposed penalties are appropriate as meeting the purposes of specific and general deterrence, as well as protection of the community and maintaining the standards of the legal profession.
[66] A reprimand is a strong sanction. Judge Hampel stated it is ‘…[A] powerful statement to the practitioner of how far below the standard of their profession they have fallen by their misconduct. It is in that sense a more personal sanction… A reprimand goes to their personal integrity.’
[67] I accept the submission a reprimand is a substantial penalty and carries considerable personal cost. It serves the purposes of both general and specific deterrence. I accept the likelihood of a repetition of the conduct is minute.
[68] The completion of an additional five Continuing Professional Development units over the next 12 months, as approved by the VLSC, is aimed at relevant education for Mr Perry and will serve to enhance the standing of the legal profession. It also has the added advantage of protection of the community.
[69] The donation of $5,000.00 to a charity is a significant financial penalty for Mr Perry, given his financial situation. In addition, the financial penalty is remedial in nature and for the benefit of the community as the donation will support the legal services provided to the LGBTQI members of the community through the Fitzroy Legal Service Q+ Law program.
…
(emphasis added)
Similar findings were made in the other matter.
The link to the decision in Perry is here.
The link to the decision in Squirrell is here.
