Articles

Co-authored by Professor Kim Lovegrove MSE RML, Senior Lawyer, Lovegrove & Cotton – Construction and Planning Lawyers

Written references are paramount. But there is some science that has to be applied to the choice of references, just as there is a science that has to be applied to the choice of jury members.

If the issue goes to character, there need to be very good character references. Ideally, the referees will be professionals or people who are held in high regard. References provided by a justice of the peace, doctors, lawyers, public servants and so forth come to mind. Their references have to concentrate on attesting to character.

Mention should be made of the length of time the referees have known the practitioner, hopefully over a long period of time, and that they have been able to form the view that the person is held in good repute. If the questions go to competence, again the referees should be people enjoying some professional stature and they will be attesting that, in their dealings with the practitioner, he or she has a track record of professionalism and competence.

The weight given to references from colleagues practising in the field with the knowledge of the person’s dealings is enhanced if the referee can give a positive appraisal when knowledge of the events that have led to the practitioner coming to the attention of the accreditation body. The former NSW ADT noted this:

We take into account the excellent character references provided by colleagues in the profession. The solicitor comes before the Tribunal with a good record and his peers speak highly of him. These include… whose affidavit carries particular weight since it is based on considerable knowledge of  the facts surrounding the Information.

If the Tribunal member armed with a ‘posse’ of references is able to form the view that the subject conduct is out of character with the practitioners ‘ form guide’ then the member might be persuaded that the incident was either out of character or an aberration. References should also be current and up to date as only then will they have poignancy. A five year old reference may be discredited by a member because he or she considers it historic.

Extract from Disciplinary Hearings and Advocacy by Professor Kim Lovegrove and Barrister Sav Korica