In addition to the sections of legislation that Southall, Kaye, Spencer, Peake and Barrister ABC (a short-term pseudonym required by court action) ignored (thereby breaking the law), the Australian Solicitors Conduct Rules (“ASC Rules”) and the Victorian Bar Incorporated Practice Rules (“Vic Bar Rules”) respectively state:
1 Application and interpretation
1.1 These Rules apply to all solicitors within Australia ….
5 Except as is otherwise provided, these Rules apply to and bind all barristers.
Thereby making compliance with the Rules non-optional and mandatory.
In light of the fraudulent misrepresentations and conduct of each of the barristers, it is incumbent upon the Ethics Committee to properly assess the barristers’ conduct. This is particularly so given that the “About the Victorian Bar” page clearly states [emphasis mine]
Our Values
The values underpinning our operations, activities and programs are:
* Independence of government, client, solicitor, colleague and self-interest
* A strong enduring community of barristers who maintain the highest professional and ethical standards
* Excellence and innovation borne of a deep understanding of the law
* Supporting the right of all members of society to access quality legal representation
* Vigorous and fearless representation of our clients’ rights and interests
* A system of law that secures justice in a free and democratic society
Code of Conduct
The conduct of members of the Victorian Bar is regulatedby the Legal Profession Act 2004 and our Rules of Conduct (Practice Rules). These documents set out the high standards of behaviour expected of barristers in carrying out their professional duties, including their duty to the Court and to the client.
Compliance with these standards is overseen by the Bar’s Ethics Committee on a day-to-day basis, and by the Legal Services Commissioner, as required
The Legal Profession Uniform Law Application Act 2014 states:
30 Objectives
The objectives of the Victorian Legal Services Board are—
(a) to ensure the effective regulation of the legal profession and the maintenance of professional standards
Sir Gerard Brennan of theBar Association of Queensland [bracketed inserts in the original]:
The first, and perhaps the most important, thing to be said about ethics is that they cannot be reduced to rules. Ethics are not what the [lawyer] knows he or she should do: ethics are what the [lawyer] does. They are not so much learnt as lived. Ethics are the hallmark of a profession, imposing obligations more exacting than any imposed by law and incapable of adequate enforcement by legal process. If ethics were reduced merely to rules, a spiritless compliance would soon be replaced by skilful evasion[1].
Of course, Sir Gerald talks about the ideal world, contrary to the situations where ethics are significantly diminished and/or almost entirely ignored, and even the Rules skilfully evaded, as they were by the barristers against me, in their conduct toward both the court and myself.
I refer to an article in The Age dated 5 March 2010[2] where it says:
The Court of Appeal said in a recent judgment that Paul Scanlon, QC, should be ”condemned” over his conduct as defence counsel in a Warrnambool civil trial two years ago that caused a ”miscarriage of justice”. … In comments echoed by the Court of Appeal in its decision over the Warrnambool case, Victoria’s Chief Justice, Marilyn Warren, cited the Melbourne case in a speech to judges last year as an example of a lawyer motivated by victory ignoring duty to the court. ”There is a line between permissibly robust advocacy and impermissible dereliction of duty,” she said…. Court of Appeal justices Marcia Neave, Bernard Bongiorno and David Byrne late last month ordered a retrial. They found Mr Scanlon had breached the rules of cross-examination, misstated evidence and was unfair to Ms Baulch.
I reiterate some of the comments in relation to the various barristersaddressed in this website:
[Each of the barristers] should be ”condemned” over [their] conduct.
There is a line between permissibly robust advocacy and impermissible dereliction of duty.
[Each of the barristers] breached the rules of cross-examination, misstated evidence and [/or] was unfair to [both the court and to me].
Each of the barristers should be condemned for their conduct because they well and truly crossed the line into dereliction of duty and exhibited a clear lack of good faith – none of the barristers can be said to have been acting in good faith when they each knew the truth and facts but created documents, settled documents, made submissions and/or addresses contrary to what they each knew.
In fact, the Legal ethical obligations, misconduct and discovery | ALRC[3] states, inter alia, that:
4.49 The duty to act with candour, including not to mislead the court, is articulated in legislation and professional rules, and reflects the position at common law. The duty—both proscriptive and prescriptive—is a central obligation owed by lawyers and necessarily has general application to the conduct of matters by lawyers.
4.54 Specific legislative articulations of the duty of candour are broad, often included within the scope of overarching obligations. For example, the Civil Procedure Act 2010(Vic)[4]contains overarching obligations including to act honestly.
The barristers knew the facts when they examined or cross-examined (or prepared the questions for either) and therefore were derelict in their conduct. It is therefore questionable if they should retain their roles as a barrister at all or be disqualified (or, as a minimum, suspended). In relation to Southall, his conduct is such that it additionally evidences that he should not deserve to retain his elevated standing as a Queen’s Counsel. As a minimum, I contend that each of the barristers should be immediately suspended during the investigation[5]. They had a sacred trust to the court, but, in the name of justice, they perpetrated gross injustice by dishonour and fraud. Let’s end this charade.
The About the Victorian Bar specifically says that “Compliance with these standards is overseen by the Bar’s Ethics Committee on a day-to-day basis”, and that further compliance is only “by the Legal Services Commissioner, as required” – in other words, not just passed across without assessment by the ethics committee first.
Failed to assess the claims
Southall told Pagone J that as a result of my application in relation to s29 of the CPA, that Southall and Kaye had had to go before the Victorian Bar ethics committee.
But before going that far, could I indicate that because – Your Honour may not – having, if I might say so, properly not read beyond the front piece of the summons and any of the very lengthy supporting submissions/application, or the affidavit, Your Honour would not – may not know and would not know that indirectly at least, whilst it is directed against the defendants – the plaintiffs, my clients – indirectly, it seeks to impugn conduct of myself and to a lesser extent my junior[6].
[A]lthough the allegations against myself, and to a lesser extent Ms Kaye, are as I said indirect or derivative, they do bring into issue our conduct within the meaning of the Bar rules, the ethics rules. … Rule 92 of which – 92E of the Victoria Bar rules of conduct, “Barrister must refuse to accept or retain a brief or instructions to appear before a court if the barrister has reasonable grounds to believe that the barrister’s own personal or professional conduct may be attacked in the case”[7].
The difficulty with that, Your Honour – and, if you like, my learned junior and I are here courtesy of the ethics committee, because if I can take you to paragraph 7 of that application at the bottom, there’s a number of allegations relating to myself. The last paragraph, “In fact, Mr Southall QC is himself bound by overarching obligations and the plaintiffs’ supporting legal team, Ms Kaye, barrister, and Ken Smith & Associates, are also bound by overarching obligations with Mr Smith of Ken Smith having signed a proper basis of certification.” The next page, “The defendant asked for orders under section 29 in her favour on the grounds that the plaintiffs and their legal representatives have contravened their overarching obligations as follows,” and bearing in mind, Your Honour, the summons is directed only at the plaintiffs but in effect it brings in the conduct of myself and my junior. We say there is absolutely no basis[8].
And then she makes a number of other serial allegations about my conduct being in breach of overarching obligations. Accordingly, to get to the point, rule 92E of the rules of conduct for counsel require that where counsel’s conduct may be brought into question they must seek the leave of the ethics committee to appear in the matter … We have done that twice. … We may have to put the matter to our indemnity insurer. … We are unsure as to how our role affects us in the sense that we would need to go back to the ethics committee or go to an indemnity insurer[9].
I would have thought then that the ethics committee would have had an interest in the real facts put against Southall and Kaye rather than the ethics committee being told by Southall and Kaye that my accusations were unfounded (as if either of them would admit to the truth of what I had said).
Passed their own responsibility on to the legal services commissioner
No, from every appearance, the ethics committee was not actually interested in what two of their barristers had done, they were only interested in passing their responsibility on to the legal services commissioner. Why have an ethics committee if they are not willing to take action against their members of the Bar? It appears to me to be a lion with no teeth or claws.
Summary
It is my personal opinion, based on what happened with me, that the Vic Bar ethics committee took to heart a comment made by Geoff Bowyer of the Law Institute of Victoria when he said in 2014 in the LIV Code of Ethics that “We act together for the mutual benefit of our profession” [emphasis mine].
However, again based on what happened with me, they seem to have missed his further comments that “We primarily serve the interests of justice”, “We observe strictly our duty to the Court of which we are officers to ensure the proper and efficient administration of justice”and “We seek to maintain the highest standards of integrity, honesty and fairness in all our dealings”. It is a shame that they did not take these later assertions into account and make them reality. That is my opinion, and I am entirely entitled to have that opinion.
[1] From The Lawyers’ Compass – your ethics starting point, in his Continuing Legal Education Lectures No. 9/92 – 3 May 1992.
[2] “Senior barrister ‘should be condemned’ over courtroom behaviour that led to two retrials”
[3] The Australian Law Reform Commission
[5] The Legal Profession Uniform Law Application Act 2014 at Schedule 1 ss77, 82 and 278 seem to dictate this as being the correct procedure.