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Ethics: Deliberately concealed

Every Issue

Cite as: (2004) 78(4) LIJ, p.80

Despite lack of frankness about sexual misconduct charges, a solicitor has been allowed to return to legal practice.

A High Court decision[1] has allowed a practitioner to return to legal practice after being found to have sexually assaulted his step-daughters and despite the fact that some of the criminal charges he had faced were deliberately concealed from the New South Wales Law Society.

A 42-year-old Sydney lawyer committed the offences while in a relationship with a woman who had four children, including two daughters aged 10 and 12 years. He had been a captain in the Army Reserve (which impressed the Court) when he was made redundant as a solicitor, just as his father was diagnosed with mesothelioma. He had then taken on more work with the army when he became severely depressed and committed the offences. When complaints were made by the children, he was charged with aggravated sexual assault (the aggravation, as the Court pointed out, relating to the children’s ages[2]), pleaded guilty, sought psychiatric help and eventually received a three-year good behaviour bond. The High Court was sympathetic, describing his conduct as “ ... quite obviously totally out of character for the appellant”.[3]

In Ziems,[4] the Court had earlier made it clear that it was necessary to examine “the whole position with meticulous care”. Thus, because he had not sought to practise for five years, had lost his personally important connection with the Army Reserve, was remorseful (if somewhat at a loss to explain his behaviour) and was fully supported throughout by the children’s mother and all those from whom he had sought help, the Court considered he had suffered enough.

Fullagar J (in Ziems) was quoted approvingly:

“ ... the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man’s fitness to practise than the former”.[5]

The Court then went out on something of a social limb when it characterised the nature of the breach of trust as “ ... so remote from anything to do with professional practice that the characterisation of the appellant’s personal misconduct as professional misconduct, was erroneous”.[6]

There was more to come. The judges then had to deal with a significant complication. In April 2000 the appellant and the children’s mother were married. The Court did not make an issue of the timing but the very next month one of the daughters (whom he had assaulted earlier and for which offence he had already admitted his guilt) made further allegations, alleging similar conduct to that already dealt with. Although he denied these fresh allegations, the appellant was again charged and this time convicted and sentenced to two years imprisonment. He appealed (successfully) but, pending the appeal, he chose to make submissions to the Law Society as to its course of action in respect of the earlier offences. Significantly, the appellant made written representations which did not mention the second set of charges.

Candour with the regulator is usually seen as a priority in these matters (just as in admission to practice). So the decision to keep quiet here was not a good sign. The concealment, regardless of whether the solicitor was innocent or not, would ordinarily have proved impossible to avoid or to fit within his “persona” as a merely unfortunate victim of circumstances and human frailty. The ruling is doubly strange because, although the solicitor’s breach of his duty of candour to the Law Society was, appropriately, condemned by the Court as professional misconduct,[7] that was the end of the matter – the Court thought he had lost enough already.

A decision not to be candid with an investigator would in most other defendants with a sexual offence history be considered evidence of a failure to rehabilitate. Here, the omission escaped effective censure because of what the Court described somewhat inadequately as “extraordinary circumstances”.[8] The judgment speaks only of the isolated nature of the original offences and the “powerful subjective case”[9] made on behalf of the appellant.[10]

Yet that is not the only issue: Ziems’ stipulation to consider misconduct in its totality is undoubtedly correct – it is just not so clear from the judgment why the contrast between the early candour of the appellant in his response to the initial complaints, as compared to his lack of candour at a later date with the Law Society, was considered inconsequential.

Personal and professional misconduct may often be different, but sexual abuse combined with deception makes this decision, at the most, provocative and at the least, unsafe.

ADRIAN EVANS is associate professor in law at Monash University and former coordinator of Springvale Legal Service Inc.

[1] A Solicitor v The Council of the Law Society of New South Wales [2004] HCA 1 (4 February 2004). The judgment was unanimous.

[2] Note 1, para 22.

[3] Note 1, para 23.

[4] Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279, per Fullagar J at 287-288.

[5] Note 1, para 18, citing Ziems, note 4 above, at 290.

[6] Note 1, para 33.

[7] Note 1, para 29.

[8] Note 1, para 37.

[9] Note 1, para 36.

[10] This decision immediately drew criticism from the WA and NSW Attorneys-General who said they would be legislating to deem conviction of a serious offence as a trigger for loss of practising certificate: Marcus Priest, “States oppose abuse ruling on lawyer”, 9 February 2004, The Australian Financial Review, p3.


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