Re A Barrister [2012] FMCAfam 823

ORDERS

The Registrar of the Federal Magistrates Court of Australia be requested to refer the conduct of [the barrister] in this matter to the Legal Services Commissioner.

IT IS NOTED that publication of this judgment under the pseudonym Re A Barrister is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

Reasons

One issue, central to the parenting decision, was the father’s allegations that the mother was abusing illicit substances. The importance of such an issue is obvious in cases where parties have young children in their care.

REASONS FOR JUDGMENT

In this matter I made orders referring the conduct of Counsel for the mother to the Legal Services Commissioner. It is appropriate that I provide brief reasons for such an order.

Counsel appeared for the mother in a parenting case that came before the court on 4 and 5 June 2012. As is apparent from the reasons for judgment on the application for interim parenting orders Jobling & Mason [2012] FMCAfam 822 the mother’s case was difficult and required careful presentation.

This issue had been raised before the court in the past. There were orders in place requiring the mother to submit to random drug screens. The orders provided for a mechanism whereby the mother was required to submit a sample to a laboratory within 24 hours of a request from the father’s solicitors. As the mother was represented the requests were sent from the father’s solicitor to the mother’s solicitor.

Strict compliance with the mechanics of the orders is necessary to enable reasonable inferences to be drawn in cases where:

The drug screens show no traces of drugs; and

The person does not provide a sample within the time frame set out in the orders.

The evidence of clear screens, if taken strictly in accordance with the orders (absent low creatinine levels, which cast doubt on the reliability of urine samples), is circumstantial evidence of non-use of such substances. Whilst positive screens (showing traces of drugs) is direct evidence of use. A failure to provide samples strictly in accordance with the orders is circumstantial evidence from which one may infer the use of drugs. As a result, scrupulous compliance with orders relating to drug testing must be expected of legal practitioners acting for clients the subject of such orders.

At the interim parenting hearing counsel for the father alleged that the mother had failed to undertake a number of drug tests that had been requested. Counsel for the mother failed to provide an accurate answer, when asked by the bench to respond to this allegation:

HIS HONOUR: So has the wife been requested to undergo tests?

COUNSEL FOR THE MOTHER: Your Honour, I do have copies of drug screens… So she has complied.

When squarely taxed with the questions Counsel said that the mother:

…alleges that he [counsel for the father] is misinformed.

As a result, counsel for the father was asked to produce the relevant documents, at which point counsel for the mother commenced a speech about other issues (including raising questions about why the father was legally aided), diverting attention away from this issue. Counsel said:

With all due respect, your Honour, the major issue appears to be that my client has been living in transitional housing. She has now been provided accommodation in (omitted), which has got to be semi-well, it is going to last for a few years, it’s called long transitional housing, so because (omitted) is so far away from the school that the child was attending she did not request the father to agree to a change of school. The father did not agree. However, this is where she does admit to a breach of the orders and I have explained the procedure to her, but she does have very limited funds, unlike the father. I don’t know why the father is legally aided; he is earning, according to my client, over $50,000 a year. He has a house and yet is getting Legal Aid and my client is not.

The matter was adjourned until 3.22pm, providing ample time for counsel to inspect subpoenaed material and obtain full instructions (if she had not done so already). I note here that counsel for the father appeared to be properly prepared, handing up a draft minute of orders sought by the father, prompting counsel for the mother to say she would do likewise after lunch:

It was clear that there was a significant issue relating to the drug tests. The solicitors for the father claimed to have made a number of requests that the mother did not fulfil, and produced letters (made exhibits in the proceedings) confirming that the requests had been made to the mother’s solicitors. The father’s counsel was squarely put on notice by the bench that he would need to produce the letters, which he provided in the afternoon.

When asked if she had instructions from her solicitor about the letters Counsel first said:

…I cannot contact my instructor to find out that we actually received the letter.

After being queried about this and whether she had telephoned her instructor counsel for the mother said:

I could, your Honour. I haven’t…

The matter was adjourned at 5.09pm until the following day. On 5 June 2012 the matter commenced at 9.57am Counsel for the mother was again asked to provide a clear response to the question of whether her solicitor had received the letters requesting that the mother undertake drug screens.

Counsel advised that she had been unable to contact her instructor.

The apparent lack of any instruction to counsel on such an important issue, the absence of the solicitor from court and the apparent failure of the solicitor to make himself available to be contacted on either day gave rise to real concerns about the solicitor’s standards of practice.

As a result I raised with counsel that I was considering referring the solicitor to the Legal Services Commissioner. I then enquired as to whether the solicitor wanted an opportunity to be heard on that question. Importantly, it was made clear to counsel that I would set another time or provide an opportunity to be heard then, but would not hold two hearings.

Counsel proceeded to make submissions on the question saying:

Right. Well, your Honour, it was my instructions from Ms [M] that she did not receive the requests. I do not believe – I believe that if those requests were received by my instructor, he would have sent them on. What I did say was that if both matters are of the fact that my instructor did receive the requests and did send them on, which I verily believe he would have, then it’s possible that if Ms [M] did not receive those requests, as she was living in share houses, it’s possible – and she had moved several times – it’s possible that those might have got lost, somehow, with the mail of numerous other people in those houses. I don’t know what the reason is but I do not think there’s any need to report my instructor because he’s a very ethical lawyer who would have done everything he was required to do under the circumstances. If he had received those requests, he would have sent them on, your Honour. My client…

Mindful of how counsel had conducted the interim hearing I interrupted her to confirm that she was acting upon instructions: it became apparent that she was not acting on instructions.

Counsel for the mother was then advised that I would give her an opportunity to be heard on whether she should be referred to the Legal Services Commissioner on the grounds that she had made submissions on behalf of the solicitor without instruction. The matter was adjourned after the following exchange:

HIS HONOUR: Call the next matter please.

COUNSEL FOR THE MOTHER: Sorry, your Honour, does your Honour still require us to come Thursday? Is that – I didn’t quite hear that.

HIS HONOUR: It doesn’t trouble me. I’m giving you an opportunity to be heard about whether I should refer it and that opportunity will be on Thursday.

COUNSEL FOR THE MOTHER: Well, if your Honour wishes to refer it…

HIS HONOUR: All right then.

COUNSEL FOR THE MOTHER: Refer it because there are no grounds, your Honour. I’m not coming on Thursday.

At this point there were two basis upon which I considered referral was called for:

Making submissions on behalf of a solicitor as to whether they should be referred to the legal services commissioner without instructions; and

Making the disrespectful remark in the final exchange.

On Thursday 7 June 2012, the solicitor for the mother appeared before me to make submissions on whether he should be referred to the Commissioner. Despite the remarks of counsel for the mother that she was ‘not coming on Thursday’, she did attend on Thursday and sat at the bar table, briefed in another matter.

When the solicitor for the mother was called upon to make submissions as to whether his conduct should be referred to the Legal Services Commissioner, counsel for the mother proceeded to interject from the bar table. Her first interjection was ignored. Her second interjection, directed to the solicitor across the bar table, without reference to the bench, proceeded as follows:

COUNSEL FOR THE MOTHER: Mr [solicitor], if I may interrupt. Your Honour, I know that there was going to be…

HIS HONOUR: Sit down, Ms [counsel].

COUNSEL FOR THE MOTHER: Sorry, your Honour, I just need…

HIS HONOUR: Sit down, Ms [counsel].

COUNSEL FOR THE MOTHER: It’s just that there’s been a misrepresentation.

HIS HONOUR: Sit down.

COUNSEL FOR THE MOTHER: Sorry, your Honour.

HIS HONOUR: You said on Tuesday, quite insolently, that you were not going to appear today on this matter and that you wouldn’t be here. I am now hearing submissions from Mr [solicitor], not hearing submissions from you. You’re not a party to this question that Mr [solicitor] has to answer. You will not interrupt it. If you continue to, I will have security come and remove you from the court.

COUNSEL FOR THE MOTHER: Thank you, your Honour. I just wanted to clarify…

HIS HONOUR: Yes, Mr [solicitor].

COUNSEL FOR THE MOTHER: …that – did you get my email, Mr [solicitor].

A few moments later counsel interjected again, at which point I directed my Associate to ask security to remove counsel from the court.

The submissions from the solicitor were to the effect that he was available to be telephoned by counsel during the hearing of the parenting matter on the Monday and Tuesday earlier that week.

HIS HONOUR: …Were you available to be contacted by phone if counsel required your instructions urgently on…

SOLICITOR: I would’ve been in the office. I would have been available. I would have had clients from time to time, which…

HIS HONOUR: But you were there with a secretary?

SOLICITOR: Yes, I was. Yes.

HIS HONOUR: So if counsel from court had have rung and said, “There’s a difficult issue that’s arisen. I need to speak to him while I’m in court”, the secretary would have interrupted.

SOLICITOR: Of course. Of course.

Whilst the solicitors handling of the matter was less than perfect (in not briefing counsel with all of the drug screen request letters) I did not ultimately exercise the discretion to refer his conduct to the Legal Services Commissioner.

On reviewing the whole of counsel’s conduct of the matter to prepare these Reasons it appears that the following issues relating to the conduct of counsel should be referred to the Legal Services Commissioner:

Making submissions without instructions (with respect to whether her instructing solicitor should be referred to the Legal Services Commissioner).

Making a disrespectful comment to the court in response to being offered an opportunity to be heard on whether she should be referred to the Legal Services Commissioner.

Interjecting repeatedly when a solicitor was making submissions and continuing to make interjections, despite directions to desist, until security was requested to remove her from the court.

Failing to obtain instructions from her instructing solicitor as to whether drug test requests had been made by the opposing solicitor in the matter, despite a lengthy adjournment during the day on Monday and an overnight adjournment to Tuesday.

Alleging that her client had complied with test requests and that counsel for the father was ‘misinformed’ by his solicitor, effectively calling into question the honesty and professionalism of the husband’s solicitor, without instructions from her own solicitor.

Advising the court on the afternoon of the first day of the hearing that ‘I cannot contact my instructor’, when it appears on the solicitor’s version he was available if telephoned, and counsel when pressed said ‘I could, your Honour. I haven’t’.

I am not privy to the advice, if any, that counsel gave her client, nor the client’s actual instructions. As a result I make clear that the grounds of the referral that has been made should not be seen as impliedly limiting the scope of any more general enquiry or consideration by the Legal Services Commissioner.

The referral of counsel to the Legal Services Commissioner is not a decision that I make lightly. I recognise the complexities faced by counsel in appearing in difficult cases and the rights of litigants to engage an advocate of their choice. I have waited some weeks to prepare the reasons and issue the order to allow the barrister time, should she have sought to do so, to request a further mention of the matter to make submissions to at least demonstrate some degree of insight into the issues and a commitment to address those issues. Unlike many cases where a practitioner is called upon to show cause, the barrister in this case has made no apology, nor demonstrated any insight into the deficiencies of her conduct. A referral to the Commissioner is warranted in this case.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment ofRiethmuller FM

Date: 10 August 2012