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Dealing with misconduct

Dealing with misconduct

By Dr Simon Smith

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In the second of a four-part series on the history of the LIV, Simon Smith looks at the challenges of discipline and conduct dishonourable, discreditable and derogatory in the early years.

In 1862, just three years old, the LIV faced a challenge over the professional behaviour of two members, Kenric Brodribb MLA and Peter O’Farrell. What made it particularly challenging was that they were the current president and vice-president respectively. It was the first time the LIV was directly confronted with disciplining members for alleged misconduct and how to keep the faith with two of the originating principles of 1859, namely to “suppress any illegal and dishonourable practice and promote good feeling and encourage proper conduct among members of the profession”. Not to do so would undermine the very existence of the LIV.

Brodribb was an early supporter of the LIV and in 1861 had been elected MLA for St Kilda. In 1861 he practised under the partnership name of Brodribb, Crisp, Lewis and Guy and it was Arthur Guy who was the catalyst for the ethical problem.

In November 1861, he took instructions to buy land at Geelong as trustee for a Mr Whyte, a land speculator, under the new Nicholson Land Act. That legislation was intended to break the stranglehold of the squatters on landownership. Whyte paid for the land but the title was in the name of Guy. Guy fell out with his partners and the partnership dissolved. The cause was the nature of the transaction, which was an evasion of the requirements of the Nicholson Land Act.

Whyte was in fact a “dummy” purchaser acting on behalf of a squatter. It was common ground that Brodribb was not aware of Guy’s dealings at the time of the purchase. For him to admit that would have been to admit complicity in an illegal act and have put his parliamentary place in jeopardy. The partnership had however pursued Guy for money relating to partnership receipts and had sold up the Geelong property and retained the proceeds, £300. Whyte complained that the money was due to him. Brodribb and his partners refused to concede and Whyte complained to the LIV.

During 1862 there was an extensive exchange of correspondence and a meeting between the LIV and Brodribb. Eventually, the Council censured and suspended Brodribb, Crisp and Lewis as members of the LIV for “dishonourable and discreditable” conduct and in December 1862 the matter moved to a general meeting of members for confirmation. There was however no Christmas spirit in the air. Before the meeting of 40 members, chaired by the “father” of the LIV David Ogilvy, Brodribb launched a counter offensive through the press. If he had acted improperly then they should seek to have him struck off, he challenged. Supported by four barrister testimonials from Messrs Michie, Higinbotham, Wood and Louis he argued that he and his firm had done nothing illegal. It was to no effect. The meeting resolved 24 to 11 to expel Brodribb, Crisp and Lewis. It was clearly recognised to be a matter of professional honour.

The Argus congratulated the LIV. In a passionate entreaty it said:

To its members we may, say – Macti nova virtute! The dignity of the profession has slumbered so long – it has been patient under abuse, and so long suffering, that we are tempted to applaud this first piece of virtue, even though it is a little excessive. We must make every allowance for the newborn sensibility. We must pardon the Institute if its sense of honour is yet a little green and callow. We welcome the promise of a process of self-purgation, and we trust that the LIV will not stop at its first vigorous effort of virtue. The annihilation of its President may be a noble piece of self-sacrifice, but there are yet other tasks for the Institute to achieve before it can pretend to any public consideration as guardian of the professional honour. If really in earnest to commence on that great work, the reformation of attorneys, the Institute must look closely within its bosom. It cannot stop at so paltry offence as Mr Brodribb’s.1

Brodribb continued to practise in Melbourne but eventually retired to England where he died in 1898.

At the same time the LIV was dealing with another case of “conduct derogatory to the profession”, this time involving treasurer and vice-president Peter O’Farrell. A colourful identity with a very successful practice among the Catholic community, O’Farrell was the defendant in Supreme Court criminal libel proceedings brought by the chief clerk of the Police Court Michael Hanify. O’Farrell had taken umbrage at a letter signed “A CATHOLIC” but written by Hanify, published in The Age on 6 November 1862. That letter dealt with the mismanagement of funds of St Patrick’s College and the role of Bishop Goold and his legal adviser O’Farrell. It was not complimentary of either. What followed was an increasingly hostile exchange of letters between the two.

By letter dated 11 November 1862 O’Farrell said of Hanify “I never allow any blackguard (not even such a contemptible one as you) to assail my character without exposing him and his motives to the world and thus doing away with the assault by showing the worthlessness of the fellow who made it” and further “. . . your attack on my character was that of a wanton and cowardly hound.2

It was too much for Hanify and he laid an information for criminal libel against O’Farrell. When the committal came before the Police Court the local press took delight in publishing the exchange and it quickly became a local sensation. Just as promptly, on 10 December 1862, the LIV suspended O’Farrell for “conduct derogatory to the profession”. It did not come back to a meeting of members until March 1863 by which time the proceedings in the Supreme Court had been completed; a jury of 12 found against O’Farrell and Barry J fined him what was regarded as a token £50. LIV members were unforgiving. They could not remove him from the treasurer-ship or vice-presidency, as his terms had expired but they voted unanimously to expel him from the LIV.3 They had taken a stand to protect the reputation of attorneys and the LIV. It would not be the last time.

As for Peter O’Farrell, his business and personal life collapsed after the court case and in 1863 he left the colony for North America. He returned in 1882 a broken man and embittered against the now Archbishop Goold whom he shot and wounded in Brighton in August 1882. Tried a month later on charges including intent to kill he pleaded not guilty. He argued that he had intended only to scare the Archbishop as the latter owed him money. He was convicted on a charge of malicious wounding and sentenced to two years jail. It was a better result than that given to his brother Henry O’Farrell who had attempted to assassinate the Duke of Edinburgh in Sydney in 1868. Henry O’Farrell was hanged a month later in April 1868.

An application to have Peter O’Farrell struck off in November 1882 was adjourned sine die. He died in 1892 aged 72. His career was summarised simply as “one of the oldest legal practitioners in the colony”. Archbishop Goold had died in 1886. 

Dr Simon Smith is writing a book on solicitors and the Law Institute in Victoria 1835-2019 to be released later this year.

1. 13 December 1862, 4.

2. “POLICE”, Argus, 29 November 1862, 5.

3. “LAW INSTITUTE OF VICTORIA”, Argus, 3 March 1863, 5.

 


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