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

In re Roberts and Williams [1838] NSWSupC 70

legal profession, discipline of - legal profession, convict lawyers - felony attaint - convict lawyers - law reporting

Supreme Court of New South Wales

Dowling C.J., Burton and Willis JJ, 14 July 1838

Source: Sydney Herald, 16 July, 1838[ 1]

In Banco.  Before the three Judges.

The Chief Justice enquired whether Mr. John Williams and Mr. Roberts, Attorney-at-law were in Court, and being answered in the affirmative, said, that it having come to the knowledge of the Judges, that an unlawful agreement existed between Mt. [sic] John Williams and an attorney named Roberts for the purpose of conducting the business of an attorney in the Supreme Court, the Judges felt themselves called upon as well in justice to the public as for the honor of the profession to investigate the circumstances of the case and invited both the parties to enter into an explanation as much with a view to afford them an opportunity of vindicating themselves as for the correction of the evil.  Both the parties came forward and voluntarily and candidly admitted the circumstances of the case, and while it was thus relieved from what would otherwise have been an imperative task, the Court felt itself called upon in the execution of its duty as guardians of the public and the profession not to pass the matter over.  Although the investigation had not been conducted in open Court, there was no point in the case, which so far as the Judges were concerned, required concealment.  It had been made manifest to the Court, that upon the death of Mr. Nicol Allan an attorney of the Court, Mr. Roberts also an attorney of the Court entered into an arrangement with John Williams who had been acting as clerk to Mr. Allan and who was then, and is now a Convict under sentence of transportation for forgery, and that finally for the good-will of the business he agreed to give Williams £450 per annum, with other advantages.  This agreement purported to bear date the 4th of December, 1837, but was proved no to have been executed until the 27th of that month, although in the mean time the business was carried on the same as if Roberts had been in the office, the object of antedating the agreement having evidently been to cover this interval.  Had these facts been brought before the Court by extrinsic evidence, the Court could only have pursued one course, its duty is clearly laid down by the statutes: in the one case the attorney must have been struck off the rolls, and the other party must have been transported for seven years, but the Judges did not wish to act so stringently with the parties, as these facts came to the knowledge of the Court by their own admission, and they would only notify to the parties that the agreement must be cancelled.  The circumstances attending the investigation had led the judges to come to the conclusion that it was necessary to restrain attorneys from employing about the business of their offices, men in Williams' situation.  There may have been a time when the law on this point could not be strictly acted upon without inconvenience to the public, but that is not the case now.  By the Charter of Justice the Judges are restrained from admitting any person to practice in the Court who has been convicted of any offence that would restrain him from appearing in the Courts at Westminister.  (His Honor here recited several Acts of Parliament on the subject, among other the Act 12th Geo. 1st, which renders any person liable to be transported for seven years, who practices in any Court of Great Britain, after being convicted of forgery, perjury or barratry.)  In order to carry into effect the plain object of the law, His Honor said, a case had arisen which called on the Court to take steps for the exclusion of all such persons from the offices of attorneys, and the Court considered that this rule would work no private or public injury, but make the profession of the law more respected and more respectable.  The Court had hoped that a sense of what was due to the respectability of the profession, would have rendered the rule unnecessary.  The time had arrived when the services of such persons could be dispensed with, and the Court therefore made and published the following rule:-

It is ordered that from and after the first day of January one thousand eight hundred and thirty-nine, no Attorney, Solicitor, or Proctor of the Supreme Court of New South Wales, shall employ as an assistant, clerk, or writer, in or about his business as an Attorney, Solicitor, or Proctor, any person who hath been or shall be transported to this Colony, or convicted of forgery, or any other felony, or wilful and corrupt perjury, or common barratry.

James Dowling, C.J.

W. W. Burton.

J. W. Willis.

Mr. Justice Burton said that before proceeding to declare the reasons why he concurred with the decission [sic] which had been come to by the Court, he must state that it was not without chagrin he found, during the investigation, that several cases came to the knowledge of the judges which ought to have come to their knowledge by other means, as they must have been known to many persons who were equally interested with the judges in preserving the respectability of the profession of the law.  The law is a profession which above all others, requires that its practitioners shall be men of high character.  Attorneys are persons appointed on account of their skill and integrity to conduct the business of ignorant persons, and it is a matter of the first importance that not but such persons be trusted with the power of acting as attorneys, and on this point the law has been very astute.  The very circumstance of the legal profession having a monopoly is in order that the Court may exercise a rigorous superintendence over the practitioners, and that the members of the profession may exercise a watchful superintendence over each other, and give notice to the Court of any irregularity that may exist, while if the profession was open to all there would be no means of putting a stop to irregularity and dishonesty.  It is therefore of the first importance that none but persons of virtuous character and good fame be admitted as attorneys, and that none other be allowed within the precincts of the Court.  A very early statute (4 Henry IV) declares that the justices shall enrol only such attorneys as are virtuous and of good fame.  This was evidently intended not to confer patronage on ht judges, but to enable them to exercise a control over the persons who practice in the Courts, and see that none but those who are virtuous and of good fame (which are not words of mere form) practice.  By the statute 2, Geo. II, all attorneys are to take an oath that they will honestly and truly demean themselves as becomes attorneys.  By the 3, James 11, none but honest men are to be admitted attorneys.  By the 12, Geo. I, if any person convicted of forgery, or perjury, afterwards practice as an attorney, the Judges can enquire summarily into the matter, and, upon proof, transport the offender for seven years: and by the Charter the Judges are restrained from admitting any one who has been convicted of any crime that would prevent him from acting as an attorney in the Courts of England.  It thus appeared, His Honor continued, that the statute law of England is very cautious in providing that none but persons of good fame are admitted to practice as attorneys.  In Cooper's Reports there is a case which shows the opinion of the Judges on the point.  A rule had been obtained calling upon an attorney to show cause why he should not be struck off the rolls.  It appeared that he had been convicted of stealing a guinea five years before, and had been burnt in the hand; Lord Mansfield said the question was, whether after the conduct which the defendant had been guilty of, he should be allowed to remain on the rolls; he certainly thought not.  Supposing a Justice of the Peace had been convicted of such an offence, the conviction would not have removed him from the commission, but it could not be said that he was a proper person to remain there, but as it was a case of some importance he would consult all the judges.  Afterwards His Lordship, who, in the mean time, had consulted the twelve judges, said that the rule must be made absolute; the defendant must be struck off the rolls not be way of punishment for the offence he had committed, but because, having been convicted, he was not a fit person to remain on the roll.  Although there was a difference in the letter His Honor could see no point of spirit between attorneys and attorneys' clerks.  In the present case, however, there could be no doubt that Williams was more than clerk, and that the agreement between him and Mr. Roberts was merely colourable; it doubtless existed before between Williams and another person, and instead of being a mere working clerk, no doubt Williams was to exercise his skill as an attorney, and that Mr. Roberts was to be a mere tool.  The words of the charter certainly restrained the Judges from admitting improper persons form acting as attorneys, but he thought that although the words "attorneys' clerks" were not used it would have been better if, when the Judges were called upon to act under the charter, they had construed it as applying to attorneys' clerks, for from improper persons acting as clerks many evils may arise, and a degraded master may make use of a very clever convict clerk for the commission of rogueries which he would be afraid to commit by himself.  The laws on this subject were not mere arbitrary provisions but proceeded on principle.  The legislature has not taken the same steps with regard to any other profession, but in all other trades or professions a person after conviction may follow his profession the same as before.  There was a sacred profession in which the Ecclesiastical Courts would take care that a person, after conviction, did not profane, but there is no express legislative enactment on the subject.  In the practice of physic, which is the next learned profession, and indeed in all professions and trades, a person is free to follow it after conviction of felony.  The Legislature had not made this provision with regard to the profession of the law without a cogent reason.  There is a very great power lodged in the bosom of an attorney; he is the person who is more admitted into the arcana of the secrets of families, than any tradesman or professional man.  He is called to the death bed to make a will, by which the whole of a testator's property is disposed of after his death; he is called upon to draw up deeds and settle disputes in families regarding property, and is in fact consulted in the must confidential manner, which makes it strictly necessary that practitioners he persons of good repute.  The laws are good and wise, but they require a course of study to enable persons to carry them properly into effect, and as great evils arise from negligence, it is the duty of the Legislature to take care that none but skilful men and men of good repute are admitted as attorneys.  The Legislature has given a monopoly for the purpose of limiting the number of attorneys and giving the Court the greater control over them, and that none but properly qualified persons conduct the business in Court.  He knew it was a common reproach that the law is uncertain, but it is not so, and he hardly ever heard a case where this was imputed but the uncertainty had arisen from the ignorance of mistake of the practitioners.  It is a highly important question who shall be appointed attorneys, for they not only stand in highly confidential situations, but stand in the very portals of the Court, so that none can enter but through them.  Having these views, it was with regret that he found persons under sentence had been acting as attorneys and attorney's clerks, not within the knowledge of the Court, but within the knowledge of many others, who had not done what it was their duty to do, stand forward and bring the matter before the Court.  In consequence of what transpired in the trial of Beilby, he (the Judge) considered it his duty to bring the conduct of John Williams before the Court, and in consequence of his having done so, Williams handed him a variety of testimonials, on which he would make a few remarks.  Notwithstanding the King of England took the view of the law he had been laying down, it appeared that others took a different view.  The first document he would allude to was the petition of Elizabeth the wife of John Williams, who stated that he husband arrived in the Colony by the ship Layton in 1829, and in 1832 received a ticket-of-leave, for having prosecuted to conviction three receivers of stolen property; that petitioner arrived in the Colony, having paid her own passage, and put the Government to no expense on that ground, on the assurance of the Secretary of State, that immediately on her arrival here, her husband would be made free within the Colony and allowed to practice in his profession.  This statement was certainly uncorroborated, but from the circumstances under which it was made, he supposed it was true, and it certainly showed that a different view of the law was taken by that functionary.  Another document was a petition presented to the late Acting Governor by Williams; it stated that the petitioner arrived in the Colony to the year 1829, and that from the 12th October, 1830, to May, 1832, while the petitioner's late master transacted the law business of the Commissariat and Internal Revenue Offices, the business was managed by petitioner, who always did his best to forward the interest of Government; that William Macpherson, Esquire, having had great difficulty to recover money under certain mortgages through the delay of the Crown Officer, requested the petitioner to draw up a form of mortgage by which he could get the money without delay, the petitioner accordingly drew up a form of mortgage containing a power of sale, which was approved of by the Attorney and Solicitor Generals, and afterwards printed with blanks, whereby the public business was much forwarded; that petitioner also devised and drew up a form for the security of quit rent; also an improved series of rules for land sales, and an improved form for grants, particularly for the land in Bridge-street, where it was necessary to make parties build to a certain plan.  To this petition was annexed copies of certain testimonials of character which were annexed to a former petition; the reason why copies instead of original testimonials were appended would easily suggest itself to the minds of the parties who signed the originals petition.  He certainly would have been more pleased to have seen a recommendation for mercy grounded on general good character, and if he had been employed in an attorney's office, on the ground of his having done his duty honestly and fairly, but it was certainly a novelty to find a petitioner trusting on the grounds that Williams had.  He would read one of the testimonials, "I have known Mr. J. Williams, clerk to Mr. Nicol Allan, and during the fifteen months that he transacted the law business of the Internal Revenue Office, Mr. Williams displayed great care and pains.  Of forty-two cases of which he had the management he succeeded in twenty-seven, twelve are now pending, and one only has gone adversely, through a party who was under age signing a note."  Afterwards the same officer states that the often noticed the good conduct of Williams, when he had frequent interviews with him, at the time that Mr. N. Allan was conducting the business of the office.  His Honor said it was apparent that although at this time the name of Mr. Allan was used, Williams was consulted as attorney; it was known he was acting as an attorney, and his advice was taken, although at this time there was an Attorney and Solicitor General within reach.

The Attorney-General asked when this was.

His Honor replied, from October, 1830, to May, 1832.

The Attorney-General said he did not arrive until June, 1832.

Mr. Justice Burton continued: the conduct and situation of Williams must have been known to the profession, for he found certificates from several of them which he would read; he would not mention names, but gentlemen would probably recognize their own language.  (His Honor here read extracts of several certificates form Counsel, speaking highly of Williams' legal acquirements, and of meeting him in consultation, &c.)  These certificates, His Honor said, did not go to Williams' good character as a convict servant, but to his legal acquirements.  But, the situation of Williams was known not only to the profession but to the public, for he found certificates from three persons who had been his clients, and who spoke of him as conducting Mr. Allan's business, and in fact knew him as a transported person in the full management of a business as an attorney. - Again, in the course of the investigation the Court had learned the startling fact that on the death of Mr. Nicol Allan, six rival attorneys of the Supreme Court proposed themselves as colleagues to Williams; now for what could this be but for the business that Williams would bring with him?  there was no occasion to mention their names; sufficient reproof would come from their own minds for they could but think meanly of themselves when they considered the degraded situation I which they had been placed.  Neither of these six however were received, but Mr. Roberts, a seventh attorney, was the person who was elected, so that seven attorneys of the Supreme Court stood impeached with having acted in this dishonourable manner.  The Court had performed its duty in reminding the profession of theirs; he trusted that the rule of Court which had been read by the Chief Justice would prove salutary.  Unless the members of the profession when they know of the existence of any irregularity bring it before the Court, the Judges are consequently inert, for of course they cannot prosecute in a matter in which they are to be judges, but the members of the bar, the attorneys, of the public when any circumstances comes to their knowledge should bring it before the Court.  Upon looking into the matter he did not consider Williams was so worthy a character as some of the certificators appeared to consider him.  With regard to the conviction of the three receivers of stolen property he had made inquiries in the proper quarter, and found that in 1831, a man, named John Williams, assigned to Mr. Macquoid, was found guilty of obtaining a box belonging to another person of the same name.  This Williams was sent on board the hulk, from whence he sent a letter to a woman named Wylie; this letter got into the possession of Mr. George Jilks, Chief Constable of Sydney, and through that some of the property taken in the box was traced to the possession of three persons, so that all that had been done by Williams in the matter, was the identification of certain portions of his own property which had been stolen from him.  From circumstances that had come to his knowledge he did not believer that Williams was such a worthy character as had been represented; on the trial of Beilby it appeared that young Beilby was in the habit of consulting Williams at the time that the scheme for defrauding the creditors was being concocted, and, although there was no positive proof that Williams knew of the fraud, yet from the part he had taken, the nature of the queries put to Williams, and the answers which were in his hand writing, he had strong suspicion that he did.  The Chief Justice had said that when the matter was before the Judges the parties had answered candidly; Mr. Roberts certainly had, but he thought Williams had acted more craftily.  When first asked he said that he was confident the agreement was signed on the 4th of December, but it was afterwards proved that it was not signed until the 27th December, although the business had all along been conducted in Mr. Robert's name, the object therefore of stating a wrong day was obvious, and when Williams' attention was drawn to the fact, he said he had been deceived by an entry in his book.  There having been so much forgetfulness on the part of many persons, the Judges having been left entirely alone in the matter, all the circumstances of the case  having been known to the whole community, and no one having brought the matter before the Court only one course remained for the Judges.  He fully agreed with his learned brethren, that considering the manner in which the Court had arrived at a knowledge of the facts, the case could not be treated with as much severity as if it have been acquired in another shape, and he did not think it was a case for punishment.  Another circumstance was, that from the certificates that he had alluded to, it appeared that such had been the sense, however obtuse, of many persons, that they were countenanced from first to last, and been patronised by so many parties, he did not think it would by right to punish them, and he therefore agreed with the Court, that a middle course was the best.[ 2]

Mr. Justice Willis said that a question so important to the profession he had never been called upon to decide.  The question was whether, after the day pointed out in the order of the Court, Attorneys should be allowed to employ as clerks persons under sentence of transportation, or persons who have been convicted of forgery, perjury, or barratry.  He was astonished that they ever had been employed, and the only plea that could be received was the difficulty of getting other aid, but that is not the case now, the great number of emigrants that have come out lately having enabled the Attorneys to procure other clerks.

The Attorney General begged, in consequence of the imputations that had been cast upon the profession, to say a few words in explanation.  When Mr. Justice Burton was making his remarks he had stated that he was not in the colony at the time Williams was said to have been in such close connection with the government offices, therefore he was not personally concerned.  His Honor had assumed that the gentlemen of the profession knew of the illegal agreement between Allan and Williams, and knew that Williams was acting as an Attorney, now this was a most violent assumption, and not fair towards gentlemen who were as tenacious of their characters as any other persons.

Mr. Justice Willis said the Attorney General must be aware he could not reply upon the Court.

Mr. Justice Burton said he should be glad to hear the Attorney General.

The Attorney General continued - he did not know that such agreement existed; he endeavoured to sift the matter to the bottom when certain papers on the subject were put into his hands by the Court, but he could not lay hold of the fact of the agreement having been entered into; he had not the power of examining the parties ad the Judges had done; and as he had failed in getting proof he considered that His Honor had proceeded on a very violent assumption.

Mr Justice Burton asked if the assumption that gentlemen knew Williams was practising as an Attorney, was so very violent when he found them certifying to his legal abilities.

The Attorney General said that was only as to his abilities as a clerk.  The Bench alone had the power of putting a stop to the matter.  He did not know whether Williams had ever been before the Judges as an Attorney's clerk, but his name was to be found on the records of the Court, which are under their Honors' supervision, and which they are in the habit of seeing every day, and, therefore, when the Judges who had the power of rectifying the matter had slept on it so long, he did not think it was fair to charge the members of the profession, who had no power, with having neglected to take any steps in the matter.

Mr. Justice Willis said that so far from having slept on the matter, he had not been in the colony six weeks when a man, supposed to be an Attorney's clerk, who was picked up drunk in the street was brought before himself and Mr. Justice Burton, when the Attorney, in whose employ this man had been, stated that he had dismissed him for drunkenness.  At that time a conversation took place on the subject, and since then they had been endeavouring to put an end to the practice, and he did not think it was fair to the Court to accuse them of sleeping on the matter.

Mr. Justice Burton said that although there was an irregularity in the Attorney General's replying upon the Court, still he was glad that he had put up with it, as when any thing dissatisfactory has been said it is better that it be explained at once.  What had been called an imputation on the Bench, by charging the Judges with sleeping over the matter.  He denied the truth of the charge.  He did not know, and had not the slightest suspicion, that Williams was a prisoner, until he called upon his to sign his petition for a conditional pardon; he had seen him very active about the Court and always considered he was a practitioner.  When he found that Williams was a convict, he refused to sign his petition, telling him to go to those who knew him better than he did.  After some remarks upon the honorable situation of barristers, His Honor said he wished his imputations to be understood as applying only to those who knew that Williams was transported for forgery and was acting as an Attorney's Clerk.

 

Notes

[ 1]See also Australian, 17 July 1838; Sydney Gazette, 17 July 1838.  This case is reported at 1 Legge 89.  Legge's report was based on that of the Sydney Gazette, which is the same as that in the Sydney Herald, except for minor details (while that in the Australian was shorter).  However, Legge did not include the whole of what is in the Herald and the Gazette.  He finished his report at the point noted in the footnote below.

[ 2]Legge finished his report here, concluding by simply stating that Willis J. concurred.

Published by the Division of Law, Macquarie University