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Court in the Act
4 February, 2004  
High Court gives green light to kiddie fiddling lawyers

High Court off to a flying start in 2004, finding that a solicitor’s indecent assault of two underage girls does not amount to professional misconduct. Such awfulness is too remote from professional practice


Here’s a corker of a decision from the Boys on High.

In its first effort for 2004 the High Court decided today (Wednesday, February 4) that the indecent assault by a NSW solicitor of two of his step-daughters did not constitute professional misconduct.

In a joint judgment from Smiler Gleeson, Michael McHuge, Groucho, Kirbs and The Tub, “A Solicitor” was let off the hook on the indecent assault complaint but was hung on the ground that he didn’t tell the Law Society of NSW about another later conviction for the same offence against one of the step-daughters. On appeal that conviction and sentence of two years imprisonment was later quashed.

The High Court upheld the NSW Court of Appeal’s finding that the failure to disclose these gruesome details to the Law Society amounted to professional misconduct.

A duty of candour when dealing with the Law Society is a professional duty, you understand. However, the High Court said that while it was a breach of trust to grope the under-aged step-daughters, “the nature of the trust and the circumstances of the breach were so remote from anything to do with professional practice” that it would be quite erroneous to characterise this personal misconduct as professional misconduct.

Naturally, this comes as an enormous relief to many right thinking practitioners, who must now be wondering how could Sheller, Mason and Giles on the Court of Appeal have got it so completely arse about?

Those three judges thought professional misconduct “may extend beyond acts closely connected with actual practice which manifests the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice.”

This was drawn from observations of Spigelman CJ in Bar & Grill v J. Cummins. Hastily, the High Court made it clear the NSW Court of Appeal was on the right track in Cummins because the conduct in question (non payment of tax for a very long time) was “closely related to a barrister’s professional activities”.

The High Court has stuck to the 1957 thinking in Ziems case, which distinguished between professional misconduct and “purely personal misconduct on the part of a professional”.

Here’s the official media announcement from the High Court issued today, which gives a crisp summary of the issues and the findings in A Solicitor v The Council of the Law Society of NSW. Enjoy:

“The High Court of Australia today unanimously allowed in part an appeal by a solicitor struck off after convictions for sexual offences and ordered his name be reinstated to the Roll of Legal Practitioners.

The NSW Court of Appeal made declarations he was guilty of professional misconduct in two respects and that he was not a fit and proper person to be a legal practitioner and ordered his name be removed from the roll.

The solicitor, now 42, was convicted of four counts of indecent assault on two girls aged under 16 who are now his stepdaughters. A magistrate sentenced him to imprisonment. On appeal to the District Court this jail sentence was set aside and he was placed on a three-year good behaviour bond. At the time of the offences, April-May 1997, he and others had been made redundant by his law firm and his father had been diagnosed with mesothelioma. He was suffering depression and physical exhaustion from long hours as an instructor training Army special forces. He was a major in the Army Reserve but the convictions led to the end of that career. The offences involved undressing the girls and rubbing them on the back, buttocks and stomach and once touching one girl outside her vagina. The girls complained of two offences. The solicitor admitted the offences and sought psychiatric help. The District Court accepted the conduct was out of character, unlikely to recur and not the most serious examples of indecent assault and noted the support he had, including from the family of the girls mother, whom he married in 2000. In that year, one stepdaughter made further allegations, which the solicitor denied. He was originally convicted but in 2001 his convictions were quashed on appeal.

These later charges were pending when the Law Society initiated proceedings by summons in the Court of Appeal in relation to the first set. The Law Society was unaware of them until the solicitor filed an affidavit in the proceedings in which he referred to the charges and his successful appeal. The Law Society then added a second charge of professional misconduct for failure to disclose.

The Court of Appeal found this charge to be made out, a finding upheld by the High Court because the solicitors professional obligations required him to disclose facts material to the Law Societys decision on any action against him. However the Court overturned the Court of Appeals finding that he was guilty of professional misconduct in relation to the original convictions. It held that the nature of the trust he breached was too remote from his professional practice and to characterise his personal misconduct as professional misconduct was erroneous. The Court also held that at the time of the Court of Appeal decision in March 2002 it could not be concluded that the solicitor was unfit to practise. The solicitor had not renewed his practising certificate for five years and the High Court held that this was as long as an appropriate suspension and no other sanction was required.”

The full text of the High Court judgment can be found at:

http://www.austlii.edu.au/au/cases/cth/high_ct/2004/1.html