Neil Sands
A disciplinary tribunal has dismissed all charges against a barrister accused of having sex with his client, finding that the pair became emotionally “entangled” but never slept together.
The misconduct charge against barrister “Mr J”, who has name suppression, hinged on the complainant’s allegations that they had sex twice at her home before her broke off the affair when his wife – a close friend of the client – found out about it via a text message on his phone.
Mr J was also charged with misrepresentation, with prosecutors alleging he lied when he denied having sex with the complainant, who was someone he and his wife had known for more than 30 years and who he was acting for in proceedings stemming from her divorce.
The Lawyers & Conveyancers Disciplinary Tribunal accepted the barrister’s evidence that the extent of his physical relationship with the client was a kiss on the lips after a dinner. After the incident, he realised he had romantic feelings for her and subsequently told her he could no longer act for her.
In a written decision published on Wednesday, the tribunal described Mr J as “a credible witness… consistent, measured, helpfully responsive to cross-examination”.
“He made concessions when they were due, even though they did not necessarily portray him in a favourable light,” it said.
In contrast, it found aspects of the client’s evidence were “loose”, “vague” and “unreliable”, questioning whether a bill for more than $82,000 that the barrister sent her after the pair’s relationship ended had influenced her decision to lay a complaint.
“We formed a view that a primary purpose of her complaint was related to the fees remaining unpaid and that she had been more invested in a relationship with the practitioner than she admitted,” it said.
“Some of her actions seemed directed towards her sense of competition with the practitioner’s wife. Some parts of her evidence were vague or unreliable.”
‘Arguably unwise’
The client met Mr J through his wife, a friend from her school days, and regarded him as a trusted family friend.
He began acting for her in January 2018 and both parties accepted that there were frequent phone calls and visits to her home, resulting in the pair developing feelings for each other before he severed the relationship in April 2022 and transferred her file to another lawyer three months later.
After considering the level of physical intimacy between the pair, the tribunal said: “We are unable to find the allegation that the practitioner had sex with the complainant to be made out to any acceptable level of proof.”
It added: “The practitioner may arguably have been unwise to take on this brief, but that is a view in hindsight. It was not improper for him to do so and he acted as a reasonably conscientious lawyer should in terminating the retainer.”
It said no disciplinary response was warranted and dismissed the misconduct charge.
The tribunal raised concerns that the second charge of misrepresentation was laid at all. It questioned why a standards committee charged him with dishonestly responding to questions about a sexual relationship when he had never made any admissions that one took place.
The tribunal made name suppression orders for both parties permanent and invited counsel for both sides to file memoranda on cost, which it said would be decided on the papers.
The decision is available here.
0 Comments