It’s
hard to credit that after almost a year of probing, prodding and high
level threats, an investigation by the Bar Association of NSW into a
possible disciplinary breach by former Federal Court judge Marcus
Einfeld has collapsed in a pile of dust. Einfeld’s apparent crime was
to appear in the High Court without a NSW practising certificate. Last
August he was counsel for Kala Subramaniam, a former employee of the
colourful Sydney legal character Leigh Johnson.

The
Subramaniam case caused a lot of grief and had its origins in 1995 when
a car owned by Johnson failed to stop at a red light in Surry Hills.
Johnson was charged but the following year Subramaniam made a statutory
declaration that she was the driver. The ensuing series of cases and
appeals have been labyrinthine, but it was the High Court appeal last
year that landed Einfeld in strife with his old club, the Bar
Association.

Justinian
carries the increasingly hysterical correspondence between the bar
authorities and Einfeld. The bar council ultimately resolved to make a
“complaint” to the Administrative Decisions Tribunal about the former
Federal Court judge appearing in the High Court without one of its
precious tickets to practise. This was a matter either of professional
misconduct or the lesser offence of unsatisfactory professional
conduct.

Einfeld’s explanations for the failure were many: he
had been away in remote parts of the world assisting “oppressed and
suffering peoples” and consequently communications were unreliable; he
thought the bar’s CEO Philip Selth had promised to issue a special
emergency ticket so he could do the case in Canberra; no-one told him
that he had not met the Bar’s conditions for a certificate.

He
suggested that the Bar as a whole should be grateful to him for his
magnificent achievements. He emailed the president, Ian Harrison SC,
saying the job he was doing in the Solomon Islands will result in
“considerable work for members of the NSW bar”. Modestly, he thought
his public profile “might bring some recognition, even lustre, to the
NSW Bar as an institution.”

After the Bar resolved to make a
disciplinary complaint, Einfeld swung Bernie Gross QC into the picture
to help him. Gross looked at the correspondence and the documents and
was struck by an amazing thing. All along Einfeld was on the roll of
barristers in the ACT, where the High Court sits. He was perfectly
entitled to appear as counsel without a NSW ticket because he had one
from the ACT.

Ah, the beauty of a federal system. What is so
unnerving is that at no point in the better part of a year’s
investigations and reports did this occur to the hierarchy of the NSW
bar, or to Einfeld for that matter. And this is the outfit that is
statutorily charged with regulating a sizeable chunk of the NSW legal
profession.

Mercy on us.

Peter Fray

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