Conflict of Interest? Fit and Proper Person? Barristers Cleared of Misconduct

By Blake O’Connor and Ugur Nedim

Two criminal law barristers have recently been cleared of serious allegations of misconduct.

Walter Sofronoff QC

Mr Sofronoff was previously Queensland’s Solicitor-General and, more recently, led the successful High Court Appeal to have the murder conviction of real estate agent Gerard Baden-Clay reinstated.

But Mr Sofronoff came under fire for representing Brisbane Grammar School during the Royal Commission into Institutional Responses to Child Sexual Abuse.

Brisbane Grammar had employed Kevin ‘Skippy’ Lynch, who allegedly sexually abused students at Brisbane Grammar for many years. Mr Lynch committed suicide after the allegations surfaced.

A complaint was made against Mr Sofronoff by the brother of a former Brisbane Grammar student, who accused the QC of a conflict of interest because he had provided written legal advice to one of Mr Lynch’s victims several years earlier.

That advice was to the effect that the victim had ‘fair prospects of success’ in an action against the school, estimating damages at around $230,000. The victim was due to give evidence against the school at the Royal Commission.

One complainant told the Royal Commission that he could not understand why Mr Lynch was allowed to operate from a room with heavy, soundproof doors under minimal supervision. The victim, BQK, gave evidence that the room featured stocks of tissues and towels which were used to wipe up semen, and “… was set up as a sick conveyor belt of victims for Lynch”.

BQK says he was disgusted that the very same lawyer who advised him to seek damages against the school, Mr Sofronoff QC, was now acting on behalf of the school during the Royal Commission. BQK stated:

“A person that I paid $5,000 to for an opinion almost 10 years ago is buyable by the school. He said earlier that technically there was no issue – again, they’ve missed the point. This is not about technical legalities, it’s about the fact that children were abused, and that’s an indication, Mr Sofronoff, of the fact that he thinks this is all a legal process”.

Despite complaints of a conflict of interest, Mr Sofronoff was cleared of wrongdoing by the state’s Legal Services Commissioner who found that although BQK had been understandably affected by the barrister ‘changing sides’ , there was little prospect of success in any further action because Mr Sofronoff had not fallen short of his ethical duties.

Lloyd Rayney

Mrs Corryn Rayney’s body was discovered in a clandestine park in Perth in 2007. The cause of her death has never been determined. Police said the only suspect was her husband and criminal law barrister, Lloyd Rayney.

Mr Rayney vehemently denied the allegations but was nevertheless charged with murder in 2010 . His case proceeded to a judge-alone trial in the Supreme Court of WA in 2012, where he was found not guilty, the presiding judge noting that: “the case by the state is beset by improbabilities and uncertainties”.

In 2014, Mr Rayney called for a ‘cold case review’ into his wife’s death. Police commenced that review nine months after the request, but ultimately decided there was insufficient evidence to charge anyone else.

Mr Rayney was subjected to a lengthy disciplinary investigation by the state’s Legal Practice Board who found he had disposed of two dictaphones after being named as a suspect, and was therefore not a ‘fit and proper person’ to practise law. The Board cancelled Mr Rayney’s practising certificate as a result.

Mr Rayney appealed the decision to the Administrative Decisions Tribunal, which reinstated his practising certificate in February of this year. Rayney welcomed the decision, saying:

‘That’s all I’ve done as an occupation, and I haven’t been able to practise for a long time.

Like anybody else, it would be nice to be able to earn a living.

I haven’t done anything wrong, I’ve acted entirely properly for the whole time … I’m confident this decision will show that to be the case.’

Mr Rayney has since filed a claim for defamation against the state, arguing that certain comments made during a press conference damaged his reputation and character.

Professional conduct rules

Lawyers across Australia are required to abide by strict codes of conduct, and legal regulatory bodies are supposed to enforce those rules.

The NSW Office of the Legal Services Commissioner received 2,528 written complaints about solicitors in 2014 alone. Of those, 80 resulted in findings of unsatisfactory professional conduct or professional misconduct.

If you feel a NSW lawyer has engaged in misconduct, you can make an online written complaint to the Legal Services Commissioner.

Or if you wish to find out whether your lawyer has had an adverse finding made against them, you can search their name on the disciplinary register.