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Decisions of the Superior Courts of New South Wales, 1788-1899

Ex parte Attorney General, in re O'Reilly [1835] NSWSupC 31; sub nom. Ex parte Attorney General, in re O'Reilly (1835) NSW Sel Cas (Dowling) 744

discipline of attorneys - striking off legal practitioners - champerty and maintenance - convict escape

Supreme Court of New South Wales

In banco, 7 March 1835

Source: Sydney Herald, 12 March 1835

Exparte the Attorney General.  The Attorney General moved on the affidavits of the Chief Police Magistrate and David Chambers, Esq., Crown Solicitor, that Edward Dormer O'Rielly [sic] one of the Attorneys of the Supreme Court be called upon to answer such interrogatories as the court may deem meeting, touching the matter disclosed in their affidavits in reference to the case of Richard Baldwin, a prisoner charged with receiving stolen property, who was admitted to bail to appear at the sessions but who effected his escape.  The affidavit of the Chief Police Magistrate set forth that in the month of September last one Richard Baldwin was apprehended by the police on a charge of receiving stolen property, and on searching his house a considerable quantity of property of various kinds of a suspicious appearance was taken therefrom; some part of the property was identified by persons who had been robbed and the prisoner was committed for trial.  Mr. O'Reilly, who appeared in behalf of the prisoner on that occasion, demanded that the unclaimed property taken in the house of Baldwin should be delivered up to him; but the Chief Magistrate objected to that step, as in accordance with the regulations of the police, property so found was liable to be detained for a certain time for the inspection of the public.  Mr. E. D. O'Reilly called on the Chief Police Magistrate on he following day and again demanded the property, but produced a deed of assignment from Baldwin of the said property over to him, as a consideration for his professional services.  The magistrate still persisted in the liability of the said property to the detention of the police, and Mr. E. D. O'Reilly finding his applications and deed of assignment unavailing, entered an action of trover against the Chief Police Magistrate, which was subsequently withdrawn.  The Attorney General quoted the law in reference to unprofessional conduct of this nature and the liability of practitioners thereupon.  Other affidavits of Mr. David Chambers set forth the alleged connivance of persons in aiding the escape of the said Baldwin, by inducing the crown officer to accept of insufficient bail, and afterwards exulting on the success of their agency in the business.   The Court ordered Mr. O'Reilly to appear on Saturday next to answer its interrogatories touching the affidavits in question.

 

In banco, 21 March 1835

Source: Dowling, Select Cases, Vol. 4, Archives Office of New South Wales, 2/3463[ 1]

 

[p.39]

[Saturday

21st March]

 

[An attorney suspended from practising for three months for taking an assignment in goods, from a prisoner charged with felony of goods in the hands of the police suspected to have been stolen.  Suspension from practising is a quasi striking off the roll so long as the suspension continues.]

 

Exparte the Attorney General (Kinchela)  In re E.D. O'Reilly Gentleman

 

On a former day in this term The Attorney General obtained a rule calling on Edward O'ReillyGentleman, one of the Attornies of this Court to shew cause why he should not answer the matter of the affidavits which he then produced charging him first with unprofessional conduct in taking an assignment in goods of certain goods & chattels claimed s the property of a person charged with felony, prior to the trial of the latter, in consideration of fees advances by him to counsel, & in consideration of his services as an attorney in and about collecting evidence &c preparatory to the trial of his said client; & secondly in committing at the escape of a felon from Justice.  In October last two persons named Irving & Baldwin were committed to Gaol by theSydney bench of Justices to take their trial, the former for stealing & the [p.40] latter for feloniously receiving certain goods & chattels proving them to have been stolen.  The prisonerBaldwin was afterwards admitted to Bail.  In procuring Bail Mr O'Reilly acted as agent.  On the day appointed for trial Baldwin had absconded.  Before he was committed for trial certain goods & chattels seized in his house under a search warrant were detained by the Justices in the police office on suspicion & until the event of the trial.  After commitment Mr O'Reilly took an assignment of those goods dated 7th November 1834 from Baldwin, in consideration as the assignment stated "of the fees paid and advanced by the said E.D. O'Reilly to counsel & in consideration of his personal services in and about collecting evidence" to meet the charge then pending.  The goods were described as "all those goods" (without a schedule) "now wrongfully detained in the police office, to have and to hold the same to his own use &c.  The assignment was witnessed by a marks woman only.  Mr O'Reilly [p.41] on the 8th November demanded the goods of the Magistrates in writing, & enclosed to them a copy of the assignment, & threatened an action if they were not delivered up & he did in fact take out, & cause process to be served on the first Police Magistrate without the notice required by the statute 21 Tac 1.  The other prisoner was tried and convicted at the last January gaol delivery.

Mr O'Reilly now on this day appeared by his counsel Mr Wentworth & produced affidavits in reply to the charged of his having connived at the escape of Baldwin sufficient in the judgment of the Court to purge him of that matter.  As to the taking of the assignment of Baldwins goods, that fact was admitted & sought to be justified on the ground that it was notoriously the practice for some professional men in this Colony to take assignments of goods from prisoners under similar circumstances.

The Solicitor General (Plunkett) was heard contra, and contended that it was highly disgraceful, scandalous and criminal for [p.42] an Attorney to act in the manner charged against this gentleman.  He cited ComDigTitAttorney 13.14. where it is said "An attorney ought not to prosecute an action to be paid in goods; for that will be champerty.

Per Curiam;  If the practice upon which Mr O'Reilly justifies the taking of this assignment, does really exist, we are of opinion that it is high time it should terminate for a more nefarious practice cannot well exist amongst any practitioners of the law.  We are bound to give credit to the sincerity of the statement, from the openness and candour with which this gentleman avows the act of which complaint has been made.  To countenance such a practice would lead to the most dangerous consequences.  It is of the last importance that the avenues to a court of Justice should be kept clear from pollution.  This can be affected only by deceiving the integrity of those who are admitted to practice in the honorable [p.43] profession of the law.  It is needless to point out all the evils which might arise from this practice.  On the one hand it holds out a great temptation to bribery, corruption & perjury by enabling the Attorney to tamper with the due course of Justice in the preservation of false witnesses; on the other, property so acquired may give the attorney an interest in the conviction of his client at all hazards, in order to silence him from making any after claim to the property assigned.  Looking at the whole of Mr O'Reilly'sconduct in this transaction we think it is highly discreditable.  Willing, however, to think that as a young practitioner he was led into this departure from the correct conduct of a professional man by the practices he has pleaded, we are unwilling to visit him (as this is the first instance of the kind brought under our consideration) with any very great degree of severity; but for the [p.44] sake of example, & to mark our sense of a practice so disgraceful we do order and adjudge that Mr Edward Doowan O'Reilly be suspended from practising in this Court as an attorney for three calendar months.  In conclusion we now desire it to be understood that if any similar instances be brought before us, we shall order the offender to be struck off the role of Attornies.

On  subsequent day Mr O'Reilly applied by counsel to be permitted to continue to an end such causes as he had commenced as an attorney at the time of his suspension.

Sed per Curiam.  That cannot be permitted.  His suspension is a quasi striking off the roll, so as long as his suspension continues.-

 

In banco, 28 March 1835

Source: Sydney Herald, 30 March 1835[2 ]

 

In the course of the day, Mr. Wentworth moved that in the case of Mr. Edward Dormer O'Reilly, an Attorney of the Court, who had been suspended from practising for three months, all suits which had been put into his hands previous to the award of such sentence of the Court, should be allowed to go on, without changing the Attorney.  The learned gentleman founded his motion on the 12th Geo. IV. Cap. 3, which gave certain privileges to legal practitioners witheld [sic] in prison for debt, and other restraints.  It was submitted that the Court would not deal more harshly with Mr. O'Reilly than if he were actually in prison.  Mr. W. pursued an ingenious argument for some length, but the Court refused the application.

 

In banco, 30 March 1835

Source: Australian, 3 April 1835[ 3]

 

Mr. Sydney Stephen moved that Mr. F. Stephen be entered on the rolls as attorney in all those untried cases in which Mr. O'Reilly had been entered as attorney.  He stated, that the motion was made with the consent of all parties.  Mr. Gurner stated, that each case must be the subject of a separate motion.  The court replied, that they would grant the object of the motion, but it was not to be considered as a precedent.  Mr. F. Stephen's name was then ordered to be inserted instead of Mr. O'Reilly's.

 

Notes

[1 ] The Sydney Herald, 23 March1835, recorded this proceeding as follows:

``The case of Mr. E. D. O'Reilly, in which the Attorney-General made a motion on Saturday last, that he be called upon to answer the interrogatories of the Court, touching his alleged connivance in the escape of Richard Baldwin, who was admitted to bail to appear to take his trial on a charge of receiving stolen property, was also disposed of, after a luminous address on his behalf by Mr. Wentworth.  The Court acquitted him of the charges relative to the alleged connivance, and addressed itself solely to the circumstance as disclosed in the affidavit of Colonel Wilson, in reference to the assignment of certain property suspected to be stolen goods, from Baldwin to defendant, in consideration of fees and necessary expenses for the trial of the said Baldwin.  On this point, though the Judges were ready to admit that he had not acted with any degree of consciousness of moral turpitude, still the practice of receiving fees in gross, which was pleaded as a precedent, was, in itself, so highly disgraceful to the profession of the law, and so prejudicial to the due administration of justice, that the Court felt bound to express its disapprobation of such a practice, and its determination to endeavour to remove it, by something stronger than mere reprehension.  On a deliberate view of the case, the Court ordered that Mr. O'Reilly be suspended from practising as an Attorney of that Court for the space three calender months."

The Australian, 24 March 1835, commented that the judgment in the matter was far too severe.  It would not agree with the judges that it is illegal to take assignments of property instead of money in payment of fees.  See also Sydney Gazette, 24 March 1835.

[ 2] See also Australian, 31 March 1835, which reported Forbes C.J. as saying that ``It was painful to make the order, and still more painful to revise it - an Attorney suspended is in the situation of a person struck off the rolls.  We can make no order."

[3 ] See also Sydney Herald, 2 April 1835.

Published by the Division of Law, Macquarie University