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On 21 December 2021, the Court of Appeal in Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 ("EFA") provided guidance about the position in relation to common law professional misconduct. As a result, this case will be influential in the Law Society’s decision-making in the years to come. 

EFA is a barrister who allegedly made sexual comments towards a barrister’s clerk, held her head and moved it “to and from his crotch area”. The alleged behaviour occurred during a dinner attended by barristers, barristers’ clerks and other invited guests. 

The New South Wales Court of Appeal upheld the Tribunal’s decision that the alleged conduct constituted unsatisfactory professional conduct and that the penalty was proportionate. 

Common law professional misconduct? 

Until the decision in EFA in December 2021, Allinson v General Council of Medical Education and Registration [1894] 1QB750 was the seminal judgment in determining professional misconduct at common law. 

Common law professional misconduct, per Lopes LJ – was “conduct [that] would be reasonably regarded as disgraceful or dishonourable by professional colleagues of good repute and competency.” 

EFA, however, upheld that in the common law of NSW there does not exist a distinct category of professional misconduct that can be defined by conduct that is regarded as “disgraceful or dishonourable” by professional peers and divorced from the test of a “fit and proper person to engage in legal practice”. 

The Court held that the “traditional common law definition” of professional misconduct is incorporated into the inclusive definition in section 297 of the Uniform Law. 

The Court was clear that the critical criterion for professional misconduct remains that of a “fit and proper person”. 

The Court also found that an assessment of whether a solicitor is a “fit and proper person” in the context of professional misconduct, does not necessarily entail roll removal. 

The Allinson case will still have a role in determining whether a solicitor is fit and proper. However, the Court highlighted that the “fit and proper test” requires consideration of other circumstances which are not captured by the Allinson test which focusses solely on the conduct under consideration.