THE NEW SOUTH WALES BAR ASSOCIATION v SMITH [1991] NSWCA 213

THE NEW SOUTH WALES BAR ASSOCIATION v SMITH [1991] NSWCA 213

The Court held, by majority, that the opponent appeared in court knowing he was not instructed by a solicitor, and knowingly made false statements to the magistrate and this Court. Such conduct constituted professional misconduct and demonstrated that he was not a fit and proper person to remain on the roll of barristers. The absence of proper instructions and deliberate misleading of the court amounted to breaches of fundamental rules of practice essential to the profession's integrity.

Parties
Claimant: The New South Wales Bar Association; Opponent: Smith
Jurisdiction
Australia
Judgment Date
09 May 1991
Procedural Posture
Disciplinary Proceeding / Court of Appeal Decision
Outcome
Name removed from roll of barristers (by majority); costs to claimant
Legal Topics
Professional Misconduct, Barristers—requirement for Instructing Solicitor, Dishonesty Towards the Court, Disciplinary Orders
Legal Profession Professional Misconduct Barristers—requirement for Instructing Solicitor Dishonesty Towards the Court Disciplinary Orders

Case Brief

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Parties

The New South Wales Bar Association

Claimant

Smith

Opponent

Procedural Posture

Disciplinary Proceeding / Court of Appeal Decision

Legal Issues

  1. 1 Whether a barrister's appearance for a member of the public in court without an instructing solicitor constitutes professional misconduct
  2. 2 Whether misleading the court as to the existence of instructions constitutes professional misconduct
  3. 3 Whether subsequent lack of candour in disciplinary proceedings aggravates misconduct

Ratio Decidendi

The Court held, by majority, that the opponent appeared in court knowing he was not instructed by a solicitor, and knowingly made false statements to the magistrate and this Court. Such conduct constituted professional misconduct and demonstrated that he was not a fit and proper person to remain on the roll of barristers. The absence of proper instructions and deliberate misleading of the court amounted to breaches of fundamental rules of practice essential to the profession's integrity.

Court Disposition

Name removed from roll of barristers (by majority); costs to claimant

Orders

  • Opponent's name be removed from the roll of barristers
  • Opponent to pay claimant's costs of the proceedings in the Court of Appeal