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Lawyers should be forced to report harassment, misconduct in ranks: top silk
Lawyers in NSW should have a mandatory duty to report suspected misbehaviour by their colleagues, including sexual harassment, sexual misconduct and bullying, a top barrister says, and the names of confirmed perpetrators should be published.
Sydney silk Arthur Moses, SC, told a barristers’ conference in Sydney on Saturday that NSW should support a recommendation of the Victorian royal commission into barrister-turned-police-informer Nicola Gobbo that new laws be passed to require lawyers to report the suspected misconduct of other lawyers.
Sydney barrister Arthur Moses, SC, says lawyers should be under a legal duty to report colleagues for suspected misconduct.Credit: Louise Kennerley
“Mandatory reporting of misconduct would deter misconduct by lawyers and strengthen public confidence in the legal profession which is sometimes viewed as ‘a club’,” Mr Moses said.
“Too often, rumours and innuendo circulate within the profession and indeed amongst the judiciary about misconduct by their colleagues.”
Mr Moses is a former president of the NSW Bar Association and Law Council of Australia but was speaking in his personal capacity. He said the duty would align lawyers with doctors and police officers.
The royal commission recommended the Victorian government pursue the reform through the Council of Attorneys-General to create uniform laws for lawyers nationally. However, it said if this was not agreed within 12 months, it should be introduced specifically for Victorian lawyers.
Mr Moses said that if “any practitioner has an honest belief held on reasonable grounds about misconduct of a colleague, or a judge, then they should have a duty to report it rather than shrug their shoulders and engage in a whispering campaign”.
The lawyer making the report would need to have a “proper basis” for the report or would be subject to sanction themselves for “frivolous or malicious” complaints.
A lawyer would have a reasonable excuse not to report if a victim of sexual harassment or misconduct confided in them or sought advice and did not consent to the report; or a lawyer who engaged in misconduct sought their advice, because those communications would be privileged.
Mr Moses said NSW Parliament should also change the law to require judges to report misconduct of other judges to the Judicial Commission.
Mr Moses did not agree with a separate recommendation that the Bar Association, the professional body for barristers, be stripped of its power to handle complaints against barristers and the responsibility given solely to the independent Legal Services Commissioner.
He said the Bar Association and the equivalent for solicitors, the Law Society, had “demonstrated that they are able and willing to conduct thorough investigations into practitioners without fear or favour”, but it would promote public confidence if the names of lawyers with misconduct findings against them were published.
The NSW Bar Association is taking disciplinary action against a male barrister who pushed a woman’s head towards a table and said “suck my dick” at a professional dinner in Sydney in 2017.
The NSW Civil and Administrative Tribunal found the man engaged in unsatisfactory professional conduct, and disciplinary orders will be made at a later date. The tribunal is expected to consider lifting a non-publication order over his name.
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