Discipline

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This article is a topic within the subject Law, Lawyers and Society.

Required Reading

Y. Ross & P. MacFarlane, Lawyers’ Responsibility and Accountability: Cases, Problems and Commentary, Fourth Edition (Butterworth’s, 2012), pp. .

Myers v Ellman[1]

  • Solicitors were officers of the Court and could thus be subject to disciplinary action such as being suspended from the Roll
  • Solicitors could also be ordered to pay costs for less serious offences (professional misconduct)
  • Offences incurring disciplinary action are more summary offences
  • Not necessarily criminal, it must involve a failure on the part of a solicitor to fulfil his duty to the Court and to realise his duty to aid in promoting in his own sphere the cause of justice

Regarding Veron; Ex parte Law Society of New South Wales (1966)

  • Justification for striking someone off the roll: … any longer justified in holding out the solicitor in question as a fit and proper person to be entrusted with the important duties and grave responsibilities of a solicitor
  • Professional conduct: infamous conduct in any professional respect – from a case relating to a medical professional
  • [2] Re R, A Practitioner of the Supreme Court (1927): Unprofessional conduct need not be disgraceful or dishonourable – anything that violates the protocol of law practitioners of good repute and competency
  • [3] Kennedy v the Council of the Incorporated Law Institute of NSW (1939): Simply judged as grave impropriety affecting the solicitor’s professional character
  • [4] Dixon J in aforementioned case: … must be judged by the rules and standards of his profession

Extract from Judgment in Council of the New South Wales Bar Association v Einfeld (2009) NSWCA 255, pp. 44-54

Facts:
  • Marcus Einfeld was a QC, former president of HREOC and judge on the State Supreme Court before becoming a NSW barrister.
  • Einfeld was tried in the Local Court at the Downing Centre in 2006 about a speeding fine and lied saying that he was not the driver of the vehicle in question
  • [5] Under the charges of perjury and perverting the course of justice Einfeld was sentenced to 3 years imprisonment with a SNPP of 2 years
  • Einfeld showed remorse and stated that he will not seek readmission to the roll
Issues:
  • One way of dealing with the application of the Bar Association would be to deal with the facts underlying the two charges in respect of which the defendant pleaded guilty and assess whether those matters .. would be sufficient to justify the orders
  • When, as happens from time to time, a member of the profession so conducts him or herself as to bring disrepute on to the profession ... procedures should be unquestionably complete in examination of relevant conduct

End

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References

Textbook refers to Y. Ross & P. MacFarlane, Lawyers’ Responsibility and Accountability: Cases, Problems and Commentary, Fourth Edition (Butterworth’s, 2012).

  1. Textbook, p. 1940
  2. Textbook, p. 6.21
  3. Textbook, p. 6.22
  4. Textbook, p. 6.23
  5. Textbook, p. 45
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