The distinction between solicitors and barristers is a traditional feature of English legal systems, including Australia’s. The main difference between the two today is that barristers specialise in court advocacy and are normally instructed by solicitors, who deal with clients directly, operate trust accounts and also do non-court work such as writing correspondence, conveyancing, preparing legal documents and handling estates.
There are many aspects to the solicitor-barrister relationship. In some ways the relationship is symbiotic: solicitors need barristers when a case requires specialist advice or is going to trial, and barristers need solicitors to refer work to them. It is certainly in the interests of solicitors to have good relations with at least some barristers and vice versa. However, many (but not all) barristers consider themselves to be the more senior arm of the profession, to the chagrin of solicitors.
When a barrister is instructed by the solicitor, the two act as a team in preparing for and presenting the client’s case. The solicitor’s role is to obtain the client’s instructions, sort the facts in a digestible format for the barrister and to gather the relevant information and evidence in preparation for hearing. The barrister on the other hand provides advice and performs the advocacy work in court. When the solicitor and barrister work well together, that is to the benefit of the client, whose chances of a favourable outcome are increased.
However, two Discipline Applications brought against solicitors in the Queensland Civil and Administrative Tribunal (QCAT) in 2013 show that disputes can arise between solicitors and barristers that can have serious consequences for the legal practitioner found to have acted unethically.
On 16 October 2013 Milton solicitor Ros Janes was found guilty of professional misconduct for misleading the District Court. The District Court proceeding was a body corporate matter, and Janes instructed a barrister named Shannon Moody before terminating her retainer. Janes then filed an affidavit and appeared before the District Court, blaming Moody for the failure to comply with the Court’s directions to file an Outline of Argument. The Court referred the matter to the Queensland Bar Association so that Moody could respond, leading to the Legal Services Commissioner commencing disciplinary proceedings against Ms Janes.
The QCAT hearing largely turned on the communications between Ms Janes and Ms Moody in the lead up to Janes’ appearance in the District Court, and involved extensive cross-examination of both women, with the tribunal finding Moody to be the more impressive witness. Other factors that lead to the court preferring the evidence of Moody were that:
– Janes’ typed notes of conversations with Moody in many respects did not accurately reflect an allegedly contemporaneous handwritten note she made of a conversation with Moody
– Janes’ admission that Moody had raised an extension of time with her on four occasions
– Janes’ claim that at the time she did not know the submissions prepared by Moody were not an Outline of Argument as directed by the Court
– an untruth in her affidavit concerning when Moody advised her the Outline could be prepared by
– Janes’ denial that she had requested Moody to withhold preparation of the outline when she had requested an extension from the Registry for filing of the Outline on the ground that the parties could resolve the proceeding
– her claim that she had asked Moody to prepare the Outline urgently but then had not contacted Moody for another two weeks
– Janes effectively conceding that paragraphs 28 and 29 of her affidavit were incorrect.
Janes was publicly reprimanded and ordered to pay a fine of $10,000 and costs fixed at $2,000.
Meanwhile, Gold Coast solicitor Karen King was found guilty of professional misconduct in November 2013 after the Tribunal found that she breached an undertaking she made in 2006 to a barrister to pay his outstanding fees in full within an agreed time. The barrister was only ever paid $5,000 of the approximately $29,000 owed to him. Ms King denied the undertaking was given with her authority, however the Tribunal preferred the evidence of the solicitor in her employ who emailed the undertaking to the barrister.
Ms King was also found guilty of other charges, including withdrawing trust monies without authorisation, failing to provide an itemised bill and failing to comply with a written notice from the Commissioner. However, the Tribunal accepted the Commissioner’s submission that the failure to honour the undertaking to the barrister was the most serious of the charges.
The Tribunal ordered that Ms King should be struck off as she was not a proper person to remain on the roll. A significant factor which contributed to this conclusion was her lack of insight into her offending behaviour, as demonstrated by her various attempts to mislead the Commissioner and the Queensland Law Society, including the fabrication of evidence to support her position. In this way, the Karen King case had a disturbing similarity to the case of Paul Anthony Dempsey, who in 2009 was struck off, partly for knowingly giving false evidence to the then Legal Practice Tribunal in an attempt to defend himself against the charges he faced.
Both of these cases from 2013 show that solicitors should act honestly and ethically at all times in their professional dealings with barristers. In particular, solicitors should not blame barristers they instruct when things go wrong without good cause. And of course, when solicitors provide undertakings to barristers they must honour them.
Another important aspect to these cases is that when a lawyer is investigated, he or she would be best advised to be honest and frank in responding to any allegation of wrongdoing, including making full admissions where appropriate rather than attempting to conceal such lapses. Legal practitioners who admit their wrongdoing and express remorse are treated more leniently than lawyers who compound their predicament with implausible explanations for the evidence against them. The way Ros Janes and Karen King both responded to investigations and proceedings against them contributed to the substantial penalties imposed on them.
Perhaps solicitors would be well served to read Dr Tom Altobelli’s Working With Barristers publication.Posted on