The NSW Law Society has responded to (8) eight recent credible reports about solicitors engaging in systemic gross professional misconduct, bullying and threatening conduct, unlawful conduct, and corrupt conduct, by stating reasons including the standard of proof was not met in accordance with the Briginshaw v Briginshaw Principle or that such behaviours are allowable and disqualified as constituting any degree of misconduct.

The reports concerned solicitors acting with a pack-mentality to take advantage over self-represented parties within the NSW Civil & Administrative Tribunal, NCAT.

Evidence of manifestly excessive advocacy where Port Stephens Council utilised the legal experience of solicitors totalling over (100) one hundred years against unrepresented parties, as well as bullying and intimidation tactics, headlined the reports.

Briginshaw is old caselaw from 1938 concerning allegations of adultery, where the husband had accused his wife of being unfaithful, but had not actually seen any instance of sexual activity or evidence of it having occurred.It’s a case that’s used as a measure of evidence to a certain standard, and that standard is the civil standard of proof.

Neither the NSWLS or the Office of the Legal Services Commissioner makes any reference to any standard of proof, let alone Briginshaw or any other legal principle as a criteria for lodging of complaints about solicitor misconduct.  But more important there is no mention of providing documentary evidence at the time of lodging the complaint.

The (8) eight cases before the NSWLS of recent were redirected for investigation by the Office of the NSW Legal Services Commissioner, an agency which is documented to regularly take no action against rogue solicitors, and instead chooses to palm off the task to the NSWLS as the easy option.  NSWLS is expected to protect its members.
“It begs the question as to what the Commissioner actually does, and the answer may be it’s just another token government office full of serial non-performers more interested in protecting their publicly-funded benefits than actually doing the job they’re paid to do; the OLSC may just be a glorified post office box,” stated Telina Webb of NSW Freedom of Information who recently filed the (8) eight detailed reports.

These words may seem harsh but they join the growing public opinion which follows disappointment on receipt of notifications ‘you didn’t provide the evidence’ and ‘such behaviours are disqualified as misconduct’.
“Prior to being informed about the excuse of Briginshaw, I have openly invited the NSWLS to view the copious evidentiary documents in my possession alone, but nobody asked for anything.  It’s evident to me they’re not interested.  I guess we only have to look at the indisputable evidence provided to the NSWLS concerning the documented corrupt conduct of solicitor Terence Goldberg who committed fraud against a church, with no action being taken, as the example of what to expect.  In fact, the ex-President of the Society Juliana Warner now President-elect of the Law Council of Australia, who was fully informed, took no action about Mr Goldberg but instead had the informer formally restrained and silenced by NSW Police.  Wow!”

“It really does make my reports of no consequence whatsoever, and the public has the right to know what they can expect from both the Commissioner and the Society as they work together for the benefit of solicitors and not the public,” stated Ms Webb.

“I’d say if you want to get something out of your system, air a legal grievance, feel as though you’re fulfilling your civic duty to report solicitor misconduct, then by all means write to the OLSC.  That’s about as much satisfaction as you’re going to get.”

“As for me, I will continue to call out misconduct of any kind regardless of who’s doing what.  No doubt I can expect the same treatment as Mr Goldberg’s informer?  There is a clear message here of who’s who in the zoo; and there is apparently no hesitation in using and abusing powers of position to protect legal associates.

It also begs the questions how damaging and unethical must solicitor misconduct be before something is done to bring them to account and are those reporting these actions expected to be legally trained in order to meet the required standard of proof at first instance?”

Those reports and the responses from the NSW Law Society will be published on this Site shortly.
Contact:

NSW Law Society – Professional StandardsMark Cohen, Team Leader(02) 9926 0110
NSW Law Society – Professional StandardsNadya Haddad – Deputy Director, Investigations(02) 9926 0110
Office of the Legal Services CommissionerKevin Kong Kwan, Acting Assistant Commissioner(02) 9377 1888