Professional Conduct and Practice Archives

In the fine tradition of “10 Things I Hate About You”, it occurred to me that – perhaps to the chagrin of some – I ought ventilate the misconceptions of some newly practising barristers that I have discerned, and which I too, in part, harboured when a young counsel.

Practice as counsel is an unusual vocation. It entails self-employment as a subcontractor advocate in the competitive adversarial justice system, bound by a “cab rank “ rule, owing a duty to the client but a prevailing duty to the system of justice and ordinarily practising as a member of chambers sharing common practice expenses but not fees.

Misconceptions about practice abound. One finds that within 3 to 5 – but sometime more – years of practice, such misconceptions fall away. Reality intervenes.

In no particular order, I canvass below some of those misconceptions. I challenge the barrister reader to declare that they never held any of them.

1. “I am a young professional with a law degree, and a graduate of the Bar Practice Course, so solicitors should brief me without hesitation”

Our challenge when acting as counsel is to, fearlessly and comprehensively, advise clients on their prospects and to appear at court before judges who (on occasions) seem determined to skin us alive.

The newly admitted barrister may pose the proposition: having completed studies –involving two tertiary degrees – and working for a firm of solicitors for several years, and completing the Bar Practice Course, why would solicitors not be falling over themselves to brief me?

There is a succinct answer to this: the lack of experience of counsel.

Reality dictates that acting as counsel is a task which one cannot learn merely by legal study, prior legal experience as a solicitor, reading advocacy books and listening to the war stories of the senior bar, but rather requires the blood, sweat and tears of undertaking practice for a number of years.

Even the cut and thrust of practice as a solicitor for several years, or longer, will not adequately equip a freshly admitted, or even slightly dented, barrister with the ability to fully and consistently cope with the rigours of practice.

Conducting efficiently the adducing of and objection (or not) to evidence and cross-examination, making persuasive oral submissions and responding sensibly on one’s feet to judicial inquiry about evidence, law and submissions made, are critical learned tasks.

One needs to do it, and often, in order to put oneself in the best position to undertake the task to a reasonable, and ever higher, standard. Self – confidence, while an essential character trait for counsel, is not sufficient to cut the mustard.

2. “My chambers owes me a living; my chamber members should recommend me as their junior or to brief if they are unavailable”

To be a member of a good set of chambers is the desire of most barristers. At the base of that desire is the company of colleagues with whom you will mix as counsel – and often socially – on a daily basis. In addition, one might piously hope that silk members of chambers, and other barristers who are jammed or unavailable, would recommend to their solicitors that their chamber colleagues be briefed.

But this hope does not routinely ensue, or if so does not inexorably accrue such briefing. So much is a function of many things.

In part, so much is founded in solicitors having their own stable of counsel, which does not align with the complement of the barristers within any chambers. Furthermore – as noted above under misconception 1 – counsel may be insufficiently experienced per se, or in the brief practice area, to attract such recommendation, or attract it successfully.

Ultimately, it is up to the individual barrister to carve their own niche at the bar. Undoubtedly, from time to time, junior and other briefs will be spawned by recommendations from other members of chambers. But they are not for the asking, nor will suffice to sustain practice. You need paddle your own canoe!

3. “I am already at work for 10 hours a day, 6 days a week, so I am not available outside of hours to solicitors, by email or telephone”

While I concede that the view of barristers may differ on this topic, I find it extraordinary that counsel – who often, as they hope, would be briefed frequently in court such that they are not always available from about 9 am (with preparation) until about 5 pm (when they return from court) – would not make themselves available outside of hours to respond to necessary enquiry.

A barrister is a self-employed independent advocacy sub-contractor professional. Out of hours requests for urgent advice, clarification of an important issue in an existing brief or availability to be briefed often need be addressed promptly. Tradies do it, so why not barristers? It is an occasional, not persistent, occurrence, so why resist?

Nothing is more irritating to a solicitor when they cannot contact counsel promptly and are left hanging. Apart from any other consideration, it tends to portray lack of interest in being briefed on an ongoing basis.

4. “I’m a busy person so I will answer emails or telephone calls from solicitors or other counsel only when able”

This misconception is related to misconception 3 above.

Suffice it to say it is irritating for a solicitor – or a counsel who is briefed with you or against you in a matter – not to receive a response, in a reasonable time, to an enquiring email or telephone call made during working hours.

Sure, the matter in which counsel is briefed and engaged in on any particular day ought be the subject of their principal focus, but that does not give them a licence to ignore the fact that the nature of the profession of a barrister is to service the requirements of others who seek your responsive attention.

The issue is capable of ready management.

First, if a receptionist or group personal assistant will be answering your phone in your absence, arm them with information pertaining to your current court (or other) commitment so that the inquiring solicitor can enjoy some idea as to by when a response is likely. Also give such person access to your electronic diary so that availability enquiries by phone can be addressed, even if tentatively.

Second, unanswered emails (in particular) or telephone messages can be responded to before and after court hours, with apt priority, and those to whom a response is made can if necessary be the subject of polite advice that you are otherwise engaged, but you are happy to briefly respond until better able to do so at length.

Apart from any other consideration, it is discourteous to do otherwise.

5. “I am happy to work 7 days a week, and only take 2 weeks holiday a year”

The barrister who works 12 hours a day, 7 days a week and takes 2 weeks holiday a year is heading for early burnout.

No doubt solicitors are looking for a barrister who is industrious and keen, but the usual consequence of excessive hours of work is that the barrister cannot keep it up – either because they acquire too much work which they cannot service, or or suffer consequent ill-health or relationship breakdown – and their lives and practice turn to dust.

In my experience – as long as they receive adequate notification that counsel will be taking time off in a few months to go on holidays or leave, in particular with loved ones – solicitors appreciate that they are briefing a young barrister who has their work/life balance sorted, and will be in it for the long term. Solicitors who are of a different view are best to be avoided; by parity of reasoning, their continuing in practice is a doubtful prospect.

6. “I cannot understand why my solicitor and my client do not accept my advice about settlement (or procedure)”

The incidence of non-acceptance of advice of counsel, broadly speaking, is inversely proportional to their experience; the more experienced counsel is, the more likely their advice routinely will be accepted. So much is understandable.

More importantly, however, counsel need remember that they are merely providing advice in respect of the litigated cause or dispute, not dictating the course of action the client must adopt.

In our legal system, the role of counsel – informed by their ethical obligations (see misconception 7 below) – includes giving advice to clients, through our briefing solicitors, when requested, and sometimes proactively if circumstances require. There is no obligation to accept that advice, as the solicitor or client may harbour a contrary view. Indeed, that contrary view may prove correct, but that is not the point because it is the client only who is directly impacted by the ultimate outcome.

All counsel, however experienced, will feel some irritation at advice proffered not being accepted, but that is just part of the game. For counsel to take it to heart is – purely and simply – hubris. Get on with what you have to do!

7. “I have to argue every point because my solicitor and client want me to, and they are paying my fees”

Counsel ought be respectful of, but avoid being slavish to, the argument and evidence dictates and preferences of the briefing solicitor and client. A barrister is an officer of the court, owing a higher duty to the system of justice, notwithstanding the concomitant duty owed to the briefing solicitor and client.

The Barristers Rule 2011 expressly provide, in effect, that not only may counsel not argue a point which they consider to be unarguable, but also that they ought not argue weak points that they consider will be wasting the court’s time.

Certainly counsel should always sit down and explain carefully to solicitor and client why it is that the point or points in question are unarguable, or that to argue same (or lead certain evidence) would be a waste of the court’s time and only attract unnecessary judicial irritation. Usually that will mollify solicitor and client, but not always. The solicitor, if experienced, may well persuade counsel to the contrary.

Importantly, a barrister need scrupulously discharge their ethical obligations, and not attract a reputation with the judiciary as an poor, unreliable or unethical practitioner. Do otherwise, and you best take up a different calling.

8. “I am a busy barrister, so Continuing Professional Development is a waste of time and effort for me; I only do it to keep my practising certificate”

How many times have I heard the shallow at our bar declare this, and some of those had more than the said 3 to 5 years’ experience.

To be busy as a barrister does not mean necessarily that you are going about your craft in the right way in every respect.

To the contrary, you may be cultivating and persisting in erroneous or out-dated substantive law, procedural or ethical practices, notwithstanding that you are not corrected by your peers or the judiciary. There will be new practices and law afoot which you need master before they permeate through to daily court practice. Why would you not want to get ahead of the game?

CPD is a critical part of any professional’s practice. Indeed, the 10 CPD points – with some compulsory subjects as part of that – which barristers are obliged to accumulate annually in order to renew a practising certificate is much less than what is required in almost all other professions.

Every barrister – in the writer’s view – ought attend regular CPD sessions in their practice and the compulsory spheres, even if to do so results in a surfeit of CPD points. Offer, too, to present or assist in CPD sessions, as that affords even better learning.

Attendance on CPD occasions where solicitors are present in the audience – and asking questions – will often afford an encouragement of those solicitors to brief you on account of your interest (and apparent expertise) in the legal sphere in question.

9. “That judge (or tribunal member) is a ba*tard to appear before (or does not like me or my client)”

I defy any barrister to declare they never have said or thought such a thing. But, in truth, the proposition only has to be stated in abstract to be quickly dismissed.

Personalities differ. In consequence, clashes can occur in any professional discourse. No doubt this can happen even between counsel and members of the judiciary, but infrequently.

Fortunately in our democratic society we enjoy an independent and well trained judiciary. They have an important task to discharge in any dispute that comes before them, namely to attend the prescribed procedure, evidence, substantive law and argument, make necessary interlocutory rulings and then deliver or facilitate a timely adjudication or jury verdict. Counsel are charged with assisting the court in that regard.

In the occasional clashes that do occur between counsel and the judiciary, the invariable genesis is an argument over evidence adduced or submission made which requires critical evaluation by the judge in order to properly understand the import of it, sometimes because the evidence is plainly objectionable or submission weak. So much has nothing to do with a judge being disposed against a particular counsel (or client), nor generally indisposed, but rather is part of the cut and thrust of the adversarial system.

In short, counsel should get over it, and concentrate on abiding the cardinal rules of good advocacy: prepare well, construct and advance the best possible case theory, and conduct and argue the case – persuasively and ethically – so as to make it as easy as possible for the judge to find in favour of their client. So abided, clashes with the bench will be few and far between.

10. “That barrister I appeared against is very rude (or unethical)”

Not for one moment am I suggesting that this never occurs but, ordinarily, one should engage in some reality testing and self-examination before concluding it, let alone saying it to colleagues.

Again, counsel practise in an adversarial system. Some degree of tension – if not heat – will exist between opposing counsel in some legal disputes. That need be managed. It should not be used as an excuse for enmity arising at the bar table, or from what ensues thereat.

There will often be disparate views as to the manner in which a case may be conducted within legal and ethical constraints. Be not too quick to judge or condemn others. You may soon be in the same or like position as your opponent in another matter. Be pragmatic; you cannot choose on what side of a dispute you will be briefed.

I have a particular practice which – to the best of my recollection – I have deployed in every court appearance in which I have engaged in the last 40 years. At the end of the hearing, upon the judge leaving court, I always turn to my opposing barrister (or solicitor advocate) and thank them. Invariably such salutation is reciprocated. Quite apart from common courtesy, what I find is that any tension which has, or may have, developed is dissipated by such exchange.

And, for good measure, I will add an eleventh misconception:

11. “The Bar Association does nothing for me”

Perhaps I have been too involved in the affairs of the Association over the years, and therefore this misconception piques me more than others. Some had the temerity to say it to me when I was President….how foolish of them!

The Bar Association of Queensland has been servicing barristers for over a century. For the many members who serve on the Bar Council and the various Bar committees, the task is unremunerated, involves long hours and is truly selfless in character. In addition, the Association is served by a skilled Chief Executive and staff.

In truth, the Association, over the years, has served as a professional association (or, perhaps, union) for members, without peer.

The President, Vice-President and Chief Executive are in frequent consultation with the State Attorney General of the day and their department, and the Chief Justice and other judges of the various courts, State and Federal. Maintaining a collective professional relationship with such persons is critical.

Frequently, detailed written submissions are made by the Association to Government – State and Federal – on legislation and on issues close to the interests of the bar and the public generally. These are written by experienced Association barrister members. Governments listen to the bar, for good reason. We are those who will be briefed to impugn or uphold legislation enacted. Furthermore, the Association will issue apt media releases and otherwise publicly agitate if Government overreaches.

In addition, the Association affords a raft of other services directly to member barristers.

It undertakes the legislative protocol of issuing practising certificates to barristers annually, that ensuring all barristers are fit and proper persons to practise and carry the requisite minimum insurance (for public and barristers’ reputational benefit respectively).

It provides free access to senior barristers at short notice for confidential ethical advice on issues encountered in practice. This is afforded by the Ethics’ Counsellors’ Committee which I chair.

It conducts the Bar Care Scheme, consisting of member access to free (3 sessions but sometimes more) and confidential psychological counselling.

It initiated and maintains a low cost life and disability insurance scheme for members bereft of medical qualification, one without equal among professional associations of Queensland.

It initiated and maintains a statutory liability limitation scheme in favour of barristers which caps their potential professional liability (with few exceptions) to the minimum statutory level of insurance cover.

Finally, it provides to the bar full CPD throughout the year, and at the annual conference near the close of the practising certificate year.

Enough said.

In this 2021 paper Peter Dunning KC dives deep into the art, and ethics, of discrediting witnesses in cross-examination and otherwise.

The Ethics of Discrediting Witnesses

In Victorian Legal Services Commissioner v Lennon [2024] VCAT 744 (6 August 2024), the Victorian Civil and Administrative Tribunal found the respondent solicitor guilty of professional misconduct in relation to what was found to be threatening conduct engaged in by the practitioner towards a prospective witness in a forthcoming hearing to which the lawyer’s former firm was a party. The tribunal member wrote:

REASONS

This proceeding concerns charges of professional misconduct under the Legal Profession Uniform Law (Victoria) (‘Uniform Law’) brought by the Victorian Legal Services Commissioner (‘Commissioner’ or ‘VLSC’) against Mr Patrick Lennon (currently a non-practising lawyer) in relation to a series of text messages he sent to Mr Dimitrios (James) Podaridis between 8.05pm and 8.30pm on Friday 10 July 2020 (‘Text Messages’). Mr Podaridis was proposing to give evidence for the defendant in proceedings associated with the recovery of debts owed to Mr Lennon’s former legal practice, and it is alleged Mr Lennon made threats to discourage Mr Podaridis from giving that evidence (or to change it). The Text Messages (redacted to remove swear words) were as follows:

The context for the messages is that:

(a) Mr Podaridis (who was or had been a barrister) was to give evidence for his second cousin, Ms Maria Lantouris, the defendant in a civil trial in the County Court that was due to commence on the Monday (‘County Court Proceeding’). The plaintiffs in that proceeding (‘Plaintiffs’) were:

Argyle Lending Pty Ltd (‘Argyle Lending’), a company owned by Mr Lennon’s wife; and
Mr Lennon and Ms Nicola Mazzeo trading as Lennon Mazzeo Lawyers (‘LM Lawyers’).

(b) The Plaintiffs were seeking to recover the sum of $500,000 (plus interest) that they alleged Ms Lantouris had agreed to pay to resolve outstanding fees (of more than $800,000) owed by her brother (Dr Nicholas Sevdalis) to LM Lawyers for legal services it had rendered to him. The arrangements had been documented in a loan agreement between Argyle Lending and Ms Lantouris and a guarantee she gave in favour of Mr Lennon and Ms Mazzeo. Mr Lennon had prepared the loan documents and Ms Mazzeo had prepared the guarantee.

(c) Mr Podaridis had been involved in brokering the deal as between the Sevdalis family (i.e. Dr Sevdalis and Ms Lantouris) and the Plaintiffs. In the proceeding, the Plaintiffs contended that, when he received the loan agreement and guarantee, he was acting as agent for Ms Lantouris. This was in the context of her defence that there was uncertainty as to the terms of those documents.

(d) As he explained in his letter to Mr Aidan McCarthy (a VLSC investigator) dated 2 February 2023 (‘February 2023 Letter’), Mr Lennon believed that Mr Podaridis had ‘become disenchanted with the Sevdalis family’ and was ‘very much part of the plaintiffs’ camp rather than Ms Lantouris’s camp’ in the context of the litigation.[1] However, after Mr Derek Begg [2] — solicitor for the Plaintiffs — had proofed him, a decision was made not to call Mr Podaridis to give evidence for the Plaintiffs.[3]

(e) As a ‘courtesy’, Mr Podaridis had advised Mr Lennon that he had been asked to speak to one of the defendant’s counsel.[4]

(f) At 6.45pm on 10 July 2020, Mr Begg sent Mr Lennon an outline of the evidence that Mr Podaridis was proposing to give on behalf of Ms Lantouris.[5] By his own account, Mr Lennon says he was ‘furious with Mr Podaridis because he should have been a witness in the case and told the truth’.[6] He ‘los[t] [his] temper with Mr Podaridis and gave him a piece of [his] mind’.[7] He used ‘ugly swear words [to add] extra force to the abuse’ and suggests the messages were ‘nasty and calculated to offend’.[8]

The Commissioner’s Application for Orders dated 16 May 2023 (‘Application’) included 17 charges. However, at the hearing the Commissioner only pressed three of them (with the remaining alternative charges to fall away if the Tribunal found them proven). They can be broadly summarised in the following terms:

in the course of legal practice, threatening a proposed witness to change or refrain from giving evidence (‘Charge 1’);(in the alternative to Charge 1) Mr Lennon, an officer of the Court and a Plaintiff in the County Court Proceeding, threatened a proposed witness to change or refrain from giving evidence
(‘Charge 4’); and
sending text messages which were likely to be (and were in fact) made public and bringing the profession into disrepute (‘Charge 16’).

While Mr Lennon did not participate in the hearing,[9] in the February 2023 Letter, he accepted that he had sent the Text Messages, but took issue with the key aspects of the charges, disputing that:

the Text Messages were sent ‘in the course of legal practice’;[10]
by sending the Text Messages, he ‘threatened’ Mr Podaridis (or that Mr Podaridis felt threatened);[11]
he intended to cause Mr Podaridis to change his evidence;[12] or
the Text Messages were ‘public communications, or communications which were likely to come to the attention of the public’.[13]

For the reasons that follow, I am comfortably satisfied and find that the Text Messages were threats made by Mr Lennon to a witness in the course of legal practice and that, by sending the texts, Mr Lennon sought to have Mr Podaridis refrain from giving evidence. Ultimately, I find that Mr Lennon’s conduct in sending those Text Messages justifies a finding that he is not a fit and proper person to engage in legal practice and, as such, represents professional misconduct within the definition in section 297(1)(b) of the Uniform Law.
It is strictly unnecessary to make a finding in respect of the alternative Charge 4. However, I am satisfied that Mr Lennon was an officer of the Court and a Plaintiff in the County Court Proceeding at the time of sending the Text Messages. I am also satisfied that this would still justify a finding that he is not a fit and proper person to engage in legal practice for the purposes of section 297(1)(b).
The remaining alternate charges — being charges 2, 3 and 5 to 15 of the Application — fall away and I express no view on those charges.
However, having regard to the findings in respect of Charge 1 and for the reasons which follow, I am not comfortably satisfied that, in the context they were made, the Text Messages Mr Lennon sent privately to Mr Podaridis were ‘likely to be made public’ as alleged and, as such, find that Charge 16 (and the alternative variant of that charge, being charge 17) has not been proven.

…

Mr Lennon intended that Mr Podaridis refrain from giving his evidence

In the Particulars, the Commissioner contends that the Text Messages:[44]

were intended to have the effect of discouraging Mr Podaridis from giving evidence as a witness for the defendant to the County Court proceeding or otherwise changing his evidence so that it was not unfavourable to the Respondent’s interests as a plaintiff to the County Court proceedings.

Particulars

…

The Respondent had received the outline of evidence only shortly before sending the Text Messages.

The Respondent was angered that Mr Podaridis had, in his opinion, changed sides and/or been misrepresenting his allegiance to, among others, the Respondent prior to the provision of the outline of evidence.

The Respondent had a telephone conversation with Mr Podaridis and a subject of that telephone conversation was Mr Podaridis’ proposed evidence.

The Text Messages followed that telephone conversation.

In support of these contentions, the Commissioner relies upon ‘the context in which the text messages were sent, the content of the messages and the Respondent’s account’.[45] In particular, she submits that:[46]

[p]laced in context, the Tribunal may infer that the Respondent and his fellow plaintiffs had already determined that Mr Podaridis’s evidence would be unhelpful to them but the Respondent had, until 10 July 2020, assumed that Mr Podaridis would assist the plaintiffs’ case by not giving evidence in the Lantouris proceeding.

In his February 2023 Letter, Mr Lennon contends that it was ‘not [his] intention to cause Mr Podaridis to change his evidence’.[47] He contends that Mr Podaridis had been motivated to give evidence to avoid being sued by Ms Lantouris, and Mr Lennon simply wanted him to tell the truth.[48] He believed that, if Mr Podaridis indicated he would not ‘sign up to’ the outline of evidence, Ms Lantouris’ lawyers would ‘not take the risk of seeking to compel him to give evidence’.[49]
The Commissioner refers to the decision of Byrne J in R v McLachlan (‘McLachlan’)[50] in support of the proposition that, while it may be ‘legitimate’ to persuade a witness of errors in their proposed evidence ‘by the application of reasoned argument’, using ‘improper pressure’ (i.e. threats and abuse) to do so amounts to ‘an unlawful interference with the process of justice, or contempt’.[51] In that case, a police officer, who had threatened to bring perjury charges against a witness he believed was to provide false evidence was found guilty of criminal contempt of court.
In any event, the Commissioner contends that the suggestion that Mr Podaridis’ true evidence would assist the Plaintiffs is ‘inconsistent with the plaintiffs’ early decision not to call him’.[52] She suggests that what Mr Lennon ‘sought to do was threaten Mr Podaridis so that he would give evidence in favour of the plaintiffs, or not give evidence at all’.
Mr Lennon accepts that he was upset to hear that Mr Podaridis was to give evidence for Ms Lantouris after Mr Podaridis had led him to believe that Mr Podaridis was in the ‘plaintiff’s camp’. Prior to receiving the outline of Mr Podaridis’ evidence for the defendants, it was Mr Lennon’s understanding that Mr Podaridis would not give evidence (because the Plaintiffs had determined not to call him).
By his own admission, Mr Lennon was hoping to persuade Mr Podaridis not to swear up to the evidence outlined, such that Ms Lantouris’ legal team would not call him. In other words, the intention was effectively to dissuade him from giving evidence at all.
It has been observed in the context of charges of contempt of court that, ‘however proper the end’ may be (e.g. it may be a proper end to try and persuade a witness not to give false evidence), ‘the means must not be improper’.[53] The outcome in McLachlan makes it clear that even the threat of a lawful act (in that case, to bring perjury charges) may be improper, and interference by way of ‘force or threat of force’ is self-evidently improper.[54]
For these reasons, I find that Mr Lennon’s intentions in sending the Text Messages was to cause Mr Podaridis to refrain from giving evidence.

Conduct is inconsistent with Mr Lennon being a fit and proper person to engage in legal practice

The Commissioner contends that by sending the Text Message, Mr Lennon engaged in conduct that would justify a finding that he is not a fit and proper person to engage in legal practice.[55]
In her submissions, the Commissioner points to the obiter comments of Ryan J in her decision in the County Court Proceeding that the Text Messages were ‘vulgar and abusive in tone’ and that sending such messages to a witness ‘on the eve of the trial [was] entirely inappropriate and fell far short of the standard expected from an officer of the court’.[56]
The Commissioner submits that it is ‘undoubtedly the case that the conduct would reasonably be regarded as disgraceful and dishonourable by lawyers of good repute and competency’ and that the ‘sending of the text messages and the intent behind them, indicate that the Respondent is not of good character’.[57]
In closing, Ms Fitzgerald contended that the Tribunal could be comfortably satisfied that Mr Lennon’s conduct, which ‘amounts to contempt’, is inconsistent with being a fit and proper person to engage in legal practice. (Although she clarified, in response to a question I raised, that it was not necessary for me to make a finding as to criminal or civil contempt.)
In his February 2023 Letter, Mr Lennon suggests that the question of ‘whether his conduct is to be regarded as disgraceful and dishonourable is for the Commissioner to decide, objectively’.[58] Of course, that letter was written before the Commissioner decided to refer the charges to the Tribunal. It is now for the Tribunal to determine whether the conduct falls within the definition of professional misconduct in section 297(1)(b).
During the hearing, I drew Ms Fitzgerald’s attention to the following observations of White J in Attorney-General v Gregory (‘Gregory’):[59]

The community can rightly be uneasy if an attempt to influence a key witness by one who is in a privileged position as an officer of the court, is not treated with the gravity which that conduct deserves. … An understanding as fundamental as the integrity of a witness’s evidence from influence or corruption is not learned with experience. One might venture to suggest that a member of the public would know so. A practitioner of mature age and 10 years experience, even without the benefit of a great deal of litigation work, who makes such a basic error of judgment is not a fit and proper person to practice.

Of course, those comments were made in the context of an attempt to ‘suborn a witness’ (i.e. have them give false evidence) as opposed to refraining from giving evidence in a civil proceeding. However, Ms Fitzgerald contended that the principles expressed by White J were nevertheless appropriately applied in the context of this case. She noted that, at the time he sent the Text Messages, Mr Lennon had 31 years’ experience, was an officer of the court and was a plaintiff in the County Court proceeding. The attempt to have the witness change his position or not give evidence weighed, with ‘enormous gravity’, on his fitness. This contention was said to be ‘enhanced’ by Mr Lennon’s attempts to ‘cast his conduct in an acceptable light’ in the February 2023 Letter.
Even though Mr Lennon was angry with Mr Podaridis, may have acted when he was ‘disinhibited’ as a result of having too much ‘red wine with and after dinner’[60] and believed that the evidence Mr Podaridis proposed to give was false, it was entirely improper to make threats to seek to dissuade Mr Podaridis from giving that evidence.
The decision in Gregory makes clear that the integrity of a witness’s evidence from influence or corruption is ‘fundamental’. Consistent with that decision, I consider that for Mr Lennon — a solicitor, with more than 30 years’ experience in criminal law — to make ‘such a basic error of judgment’ clearly establishes that he is not a fit and proper person to practice.
I add that this is applicable whether the basic error was made by Mr Lennon in the course of legal practice (i.e. for Charge 1) or as an officer of the Court and one of the Plaintiffs in the County Court Proceeding (i.e. for the alternative Charge 4).

…

(emphasis added)

The link to the full decision may be found here.

[1] Tribunal Book (‘TB’), 619-624 [7(b)].

[2] The person referred to in the Text Messages as ‘Derek’.

[3] Letter from Mr Begg to the Commissioner dated 7 September 2022: TB, 644.

[4] February 2023 Letter [7(d)].

[5] TB, 646.

[6] February 2023 Letter [7(h)].

[7] Ibid [7(i)].

[8] Ibid [10].

[9] Mr Lennon sent an email to Mr McCarthy on 21 June 2024 advising that he was ‘not engaging in the proceeding’ because he perceived it to be ‘a witch hunt and of no utility’: Exhibit AMM-2 to the Affidavit of Aidan Michael McCarthy dated 23 July 2024.

[10] February 2023 Letter [11].

[11] Ibid [7(k)].

[12] Ibid [6].

[13] Ibid [12].

…

[44] Particulars [34].

[45] AOS [43].

[46] Ibid [44].

[47] February 2023 Letter [6].

[48] Ibid [7(h)].

[49] Ibid [7(g)].

[50] [1998] 2 VR 55.

[51] AOS [45].

[52] Ibid.

[53] R v Kellett [1976] 1 QB 372, 388 (cited in McLachlan [1998] 2 VR 55, 60).

[54] Ibid, 392 (cited in McLachlan [1998] 2 VR 55, 61).

[55] Particulars [43].

[56] AOS [51] (citing Argyle Lending Pty Ltd & Ors v Lantouris [2021] VCC 259 [43] and [45]).

[57] AOS [51]–[52].

[58] February 2023 Letter [5].

[59] [1998] QCA 409.

[60] February 2023 Letter [5].

Allegations of fraud against a party or witness ought not be made lightly, or indiscriminately, by counsel. A clear and considered properly arguable foundation – accompanied by informed instructions – for same ought exist.

The Queensland Barristers’ Rules – contained in the Barristers Rule 2011 (Qld) – provide by rule 64:

A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that:

(a) available material by which the allegation could be supported provides a proper basis for it, and

(b) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it not made out.

Rule 65 of the Victorian Legal Profession Uniform Conduct (Barristers) Rules 2015 (the Rules) is to the same effect.

In Sandbach v Victorian Legal Services Commissioner [2024] VSCA 143 (27 June 2024), Mr Alan Sandbach, formerly a barrister admitted to practice in the state of Victoria, was granted leave to appeal a decision of the Victorian Civil and Administrative Tribunal (VCAT) in relation to a charge of professional misconduct for breach of rule 65 of the Rules but had his appeal dismissed by the Victorian Court of Appeal.

The charge arose out of submissions made by Mr Sandbach over the course of several hearings in 2016 in the Costs Court before a Victorian Supreme Court judicial registrar.

Mr Sandbach made and repeated claims that an opposing counsel relied on a false document, an invoice dated 15 February 2016 (the 15 February invoice), prepared by solicitors for clients seeking taxation of a bill of costs.

To summarise some background to the proceedings in the Costs Court, in early 2012, Mathieson Nominees approached AJH and asked it to act for the liquidators of Sprint Homes Pty Ltd (in liq) (‘Sprint Homes’) in relation to public examinations of various individuals related to the affairs of Sprint Homes. AJH agreed to do so and entered into a costs’ agreement with the liquidators and Mathieson Nominees who was funding the public examinations. AJH rendered bills to Mathieson Nominees for work performed and Mathieson Nominees paid the bills in full. Mr Sergey Sizenko (the Complainant) is a legal practitioner whose firm (Victorian Legal Cost Assessors) was instructed by Mathieson Nominees and one of its directors, Ian Mathieson (collectively, the Mathieson parties) to seek a review of the costs claimed in the AJH bills. As a result, the Complainant issued a summons for taxation against AJH on behalf of the Mathieson parties. After the summons was filed, AJH raised questions as to whether the ‘indemnity principle’, which allows for the recovery of costs which the relevant party is liable to pay its solicitors (including where the costs have not actually been paid) prevented the recovery of the full amount of the taxable bill of costs by the Mathieson parties. In short, AJH submitted that the Mathieson parties had no liability to pay the Complainant the costs, the subject of the summons.

The February invoice was issued by the Complainant for $320,000 plus GST and contained some matters that one would not ordinarily find on a solicitor’s invoice including that, after the date and invoice number, there was a heading “Ship via” with no corresponding entry and on the next two lines were the headings “Bill to” and “Ship to”.

Mr Sandbach was briefed to appear on behalf of AJH and submitted in substance that counsel for the Mathieson parties had engaged in unethical conduct because he undertook work without having received a backsheet and also, particularly in relation to the 15 February invoice, that, amongst other things, it was “plainly a false invoice” and “a fraud” and “on no view could this bill be a genuine bill in accordance with any form of retainer.”

The judicial registrar expressed scepticism about the basis upon which the applicant was putting the allegations against counsel and cautioned Mr Sandbach about continuing to press the submission. The Mathieson parties were ordered to file an affidavit deposing to their liability to pay the February invoice. An affidavit was filed on behalf of Mathieson Nominees which deposed to the facts that the Complainant refrained from billing for his work for several years and told the Mathieson parties that he did not expect the 15 February invoice to be paid immediately and that he was prepared to wait for payment.

At the next appearance the applicant criticised aspects of the affidavit and was warned about making allegations without any basis.

The Complainant formally complained to the Victorian Legal Services Commissioner (VLSC) about fraud allegations having been made, there was an investigation and the VLSC made application to VCAT for determination.

The VLSC relied upon a breach of rule 65 of the Rules as constituting professional misconduct within the meaning of ss 297(1)(a) and 298(b) of the Legal Profession Uniform Law (the Uniform Law).

Section 297(1)(a) of the Uniform Law states that ‘professional misconduct’ includes unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence or diligence.

Section 298(b) of the Uniform Law provides that conduct consisting of a contravention of the Uniform Rules is capable of constituting unsatisfactory professional conduct or professional misconduct.

In closing submissions Mr Sandbach contended there was a reasonable basis for him to allege the 15 February invoice was a fraudulent and false document including because it was “more than irregular, it was a nullity.”

The charge of professional misconduct was heard by Justice Quigley, the then President of VCAT in November 2022 who found it was contrary to any reasonable interpretation of the relevant facts to conclude that the Complainant falsified the 15 February invoice to prove his retainer with the Mathieson parties and thus his entitlement to legal fees. Her Honour did not accept the applicant’s contentions that a fraud allegation was supported by, amongst other things, the inclusion of references to “freight and shipping” on the 15 February invoice as the invoice had been created using MYOB software which contains pre-existing invoice templates for freight and shipping and the invoice did not record amounts against those items.

Her Honour ultimately concluded that the applicant was guilty of professional misconduct under ss 297(1)(a) and 298(b) of the Uniform Law and, as a result, concluded that the applicant be reprimanded pursuant to s 299(1)(b) of the Uniform Law and be prohibited from applying for a practicing certificate under s 303(1)(j) of the Uniform Law for a total of 12 months commencing on 16 April 2023.

Justice Quigley held that in pressing the fraud allegation Mr Sandbach was “grasping at straws” and put “his client’s desires before his dignity as a legal practitioner and before his paramount duty to the court”.

Mr Sandbach appealed from the decision of Justice Quigley to the Victorian Court of Appeal on 12 separate grounds, only 3 of which proceeded with a grant of leave and were ultimately dismissed.

Two of the grounds for which leave was granted allege the primary Judge misstated the barrister’s submissions, misapplied the correct legal test for breach of the rule and asked the wrong legal question.

The Court of Appeal considered at [102] of the decision that: “while the ultimate issue for VCAT was whether the applicant believed on reasonable grounds the material provided a proper basis for the fraud allegations, it was implicit and/or inherent in the submissions of the applicant (who appeared for himself before VCAT) that the 15 February invoice was a fraudulent and false document and that he believed it to be so.”

The third ground to receive leave contended that there was no evidence by which Justice Quigley could find Mr Sandbach had made the allegation of fraud without instructions and without consulting his client about the possible consequences once the allegation was made.

The Court of Appeal found that there were two elements that had to be established in order to make out this ground: that the client was aware and was advised and that the client still wished the fraud allegation to be made.

In Mr Sandbach’s circumstances, the Court of Appeal concluded it was open to the primary Judge to infer that the client was aware and had been advised as to the consequences of fraud allegations being made.

Mr Sandbach’s grounds of appeal included grounds in relation to the penalty imposed.

Despite Mr Sandbach’s submission that he had an ‘hitherto unblemished record of ethical conduct in the course of his practice’ and that the judge’s finding of guilty ‘reflects a departure from a long record of ethical conduct in practice’, Mr Sandback had in fact been involved in 2 previous proceedings that related to conduct.

The Court of Appeal referred at [213] to the “[f]irst, in 2003, the applicant successfully appealed against a decision of the Victorian Legal Profession Tribunal (VLPT) which found the applicant guilty of unsatisfactory conduct charges brought by the Victorian Bar, arising from the applicant’s use of the word ‘untruths’ in characterising a fellow barrister’s submissions across two hearings during a proceeding in October 2001. In the appeal reasons, Victorian Bar Inc v Sandbach, the VLPT found that the applicant’s language constituted ‘sledging’ rather than a breach of r 82 of the Rules of the Bar that were in force at the time.”

And at [214] of the decision the Court of Appeal referred to the “[s]econd, in 2018, the Victorian Bar Council determined that the applicant was not a fit and proper person to hold a practising certificate. As a result, the Bar Council cancelled the applicant’s practising certificate effective 31 December 2018 and disqualified him from applying for a further practising certificate for four years from that date.” The Bar Council’s determination was based on the applicant’s conduct in respect of his tax affairs, which encompassed certain tax-related conduct, the applicant’s conduct in court proceedings relating to his tax affairs and his conduct appearing before a Council Committee hearing.

The Court of Appeal referred at [227] to the primary Judge’s conclusion that the applicant’s lack of insight and remorse was a primary aggravating factor in the penalty exercise, particularly given his 35 years’ experience in the profession, and relied on the following matters in that regard:

(a) the applicant’s demonstrated lack of insight and remorse and inability to rehabilitate or otherwise curtail his behaviour following warnings;

(b) the applicant offered no apology to the Complainant, the Tribunal or the legal profession;

(d) the fact that it was the third occasion the applicant had been before the Tribunal (or its predecessor in relation to matters of professional conduct.

The Court of Appeal recorded at [229] that the primary Judge acknowledged that there is nothing inherently wrong with robust advocacy but took the view that by making the fraud allegations the ‘line had been crossed by the [applicant].’

It was determined that the grounds of appeal in relation to penalty had no real prospect of success and therefore no leave was granted. The Court of Appeal found at [266] that there was no doubt the matters raised in relation to prior conduct were relevant to penalty and at [268] that the primary judge had not mischaracterised the applicant’s submissions by failing to distinguish between unblemished or exemplary behaviour in the course of practice (which excluded tax-related conduct) as opposed to work-related conduct more generally. This is because the applicant’s ‘tax affairs and bankruptcy’ are not distinct from, or irrelevant to, the applicant’s professional conduct.

The appeal was dismissed resulting in Mr Sandbach being banned from applying for a practicing certificate for 12 months commencing on 16 April 2023 (being the time at which the prior prohibition on the applicant obtaining a practicing certificate was to cease).

A link to the full decision is here.

Review of the VCAT decision may also be found in Hearsay 91:Misconduct Finding Against Barrister Making Unfounded Fraud Allegation About Deponent’s Evidence

Although said now close to 25 years ago, the following statement by O’Keefe AJA in the New South Wales Court of Appeal decision in Spanos Enterprises v South Sydney Council [2000] NSWCA 41 continues to resonate in terms of a common misconception by the public as the role of counsel where instructed to cross-examine witnesses called by another party. In that case a party appealed on the ground that their counsel omitted to cross-examine witnesses on uncontested evidence, despite instructions being furnished by that party’s director that counsel do so. O’Keefe AJA wrote:

[13] There is, in the minds of some members of the public, a belief that counsel or other legal representatives are merely mouth pieces for the client. That is not the situation at all. Counsel appearing for a party has duties to that party which are of a very high order. Counsel also has duties that are of wider impact, duties owed to the Court. A duty is owed to the Court to properly conduct proceedings. The Court is not a forum in which persons are to be asked questions merely because a client wants that to happen.

[14] Questions may be asked that are relevant to the issues before the Court or relevant to the credit of a particular witness or witnesses, if credit is relevant at all. It will be relevant only if there is a factual issue between the parties and one has to evaluate the credit of competing witnesses in relation to that issue. That did not occur in the present case.

[15] The witnesses were in two categories. The first category consisted of local residents or lay people; the second category consisted of the council officers. The first category of witnesses gave evidence of late-night-into-early-morning dancing with many, many people present, lots of noise, lots of strobe lights and a great deal of rubbish left behind. That was not contradicted by the affidavits filed on behalf of the respondents below and when Mr Spanos gave his oral evidence he did not contradict what had been said by the local residents, indeed he conceded that, except in one instance, he had been at each of the dance parties that the local witnesses had referred to. There was thus no issue between the parties on the facts, so that there was no matter relevant to any issue about which they could be cross-examined. There being no relevant factual issue between the parties, the credit of the local residents was not in issue either. Thus there were no questions that could properly be directed to them on this matter.

[16] If one looks at the council officers as the second category: they gave evidence that they paid various sums of money on various occasions to attend the dance parties at which they were present. There was no issue about those facts either. That money was collected and that the amount varied according to the time of entry was absolutely clear, and common ground. So there was nothing left to cross-examine the council officers about.

[17] In these circumstances, a mere statement in the affidavit of Mr Anthony William Spanos sworn on 5 October 1999 that he said to counsel then appearing, “I want you to cross-examine the council witnesses”, takes the matter no further. A client who gives such an instruction without there being a proper basis for it does not give an instruction which counsel is bound to, or indeed may properly, act upon. That is because, as I have said earlier, there are duties to the Court beyond those owed to the client.

[18] This ground of appeal, in my opinion, is not merely misconceived, it is quite mischievous.

(emphasis added)

A recent survey of Judges in England and Wales records a significant perception as to a lack of judicial support. Such results are in accordance with a survey conducted by the UN Office on Drugs and Crime’s Global Judicial Integrity Network. In July 2024, a Regional Judicial Conference on Integrity and Judicial Wellbeing held in Nauru, attended by judges and stakeholders from across the globe officially adopted the ‘Nauru Declaration on Judicial Wellbeing’.

The UK Law Gazette reports as follows:In depth: Morale on the bench has nosedived – but the UK is not alone | News | Law Gazette

Why is the legal industry talking about Artificial Intelligence (AI), and in particular generative AI?

There certainly is a lot of hype around AI, however, generative AI is much more relevant to the daily practice of law, which is all about language. In recent years the legal world has become well-acquainted with technological disruption, experiencing successive waves of changes in practice and procedure. While the emergence of generative AI has fuelled unparalleled excitement for some legal professionals, others may be taking a more considered approach.

The use of AI is fast making its way into the court system, and it is also interesting to note that several top law firms in Australia have already adopted generative AI tools such as Lexis+ AI.

What are some of the key considerations for Australian barristers when considering the use of generative AI solutions?

While the adoption of generative AI can save you incredible amounts of time, there are several key considerations for barristers.

1. AI won’t replace your expertise

Clients are entitled to expect that any work that is done on a brief is a barrister’s own work and reflects the application of their skill, knowledge, experience, and judgment.

It is important to understand the strengths and weaknesses of the GenAI tools you use so that anything you produce, is work:

on which you have exercised independent forensic judgment,
on which you have advised independently,
which you have reviewed and edited where necessary,
which you believe is correct and reliable based on your training, expertise, and research, and therefore you can independently explain and support.

2. The value of legally trained Large Language Models (LLMs)

As a barrister, every day is different, and each case requires a specifically crafted strategy to account for the distinct aspects of that case.

The practice of law is all about understanding, synthesising, creating, and communicating language. Because of their ease with language, LLMs are particularly well suited to use in fields like law. An LLM trained on vast amounts of text data can produce fluent responses to text drafted by the user (prompts). However, generic LLMs such as Chat GPT or CoPilot are not specifically trained for legal use cases.

AI systems that are intended for use in a legal context offer more assurance of accuracy and usefulness. While LLMs find “plausible” responses to your prompts, they lack the “reasoning” needed in legal research and strategy, and they can’t replace your expertise in addressing a matter that has come to you for a reason.

3. Learning to prompt effectively

Learning how to optimise your prompting (prompt engineering), is a key consideration when seeking time efficiencies in your daily work. Whether that’s in summarising lengthy and complex case law quickly and easily, analysing your opponents’ submissions to quickly familiarise yourself with the salient points, or asking it to provide you with a first draft in short order, you and your practice will benefit from the time saved.

Out-of-the-box AI solutions may not work particularly well for legal use cases without proper training data and adequately designed safeguards.

4. Safeguards

Let’s talk about safeguards. It’s important that before you embark on using AI, you understand how to use it effectively but also understand its limitations. The NSW Bar Association and the Supreme Court of Victoria have already issued guidelines on the use of generative AI in litigation. The main premise of these guidelines is that if AI tools are to be used, the barrister must ensure that the use of AI supplements and does not substitute the barrister’s legal skill.

Introducing Lexis+ AI

Lexis Nexis has just launched Lexis+ AI in Australia. It’s like having a well-read, trusted colleague with an encyclopedic memory that you can converse with, and who can analyse and apply LexisNexis’ integrated legal content for you, sitting on your desktop.

The assistant can complete many of the tasks which are the staple of your daily work: research, drafting, summarising cases, and uploading and analysing documents.

Unlike other free or general-purpose LLMs that you may have used that draw their answers from the World Wide Web, Lexis+ AI is only drawing from trusted LexisNexis content. This process is known as Retrieval Augmented Generation (RAG) which means that we point the AI model at our content, and it bases its responses only on our content.

What are some of the practical applications of Lexis+ AI?

Trial preparation – this is often a time-consuming and technical task requiring the analysis and synthesisation of large amounts of content. Generative AI can save you time by finding relevant cases and providing summaries of relevant judgments, giving you a springboard to determining your strategy.

Catching cases – Generative AI can support your research and ensure that you’re ahead of the curve by making sure you don’t miss a case or uncover cases that your opponent hasn’t identified.

Reviewing opposing arguments – uploading your opponent’s submissions will allow you to have a summary of their approach at your fingertips in moments. This gives you back time to dedicate to how you will tackle their arguments from a strategic point of view.

Using traditional legal research methods in combination with generative AI responses will arm you with more objective and decisive data points.

As with any type of research, using AI is a tool. The responses will always be your first “useful” draft, and the need to check and double-check against citations will remain to ensure completeness, reliability, and accuracy.

It is your expertise in the law and its application that is required to ensure that the first draft turns into something you are confident with.