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Deja Vu
19 February, 2010  

Justinian remembers … Nicolas Cowdery’s famous blast about the inward-looking, mean-spirited and reactionary leadership of the legal profession … The Babette Smith affair, or how not to sack a CEO of the Bar ‘n’ Grill … Bad blood runs freely … All from our hard copy archive

Bad boy Bubba

From Justinian, September 1997

Little wonder that David Bennett, Czar of the Sydney Bar, lashed out at NSW DPP Nicholas Cowdery.

Cowdery gave a stirring speech to the St James Ethics Centre, in which he said:

* The commitment of lawyers to the service of the community was suspect and altruism was waning;

* The legal profession associations are parochial, mean spirited, inward looking and reactionary;

* Solicitors have often allowed their allegiances to their clients to turn into obedience and servility;

* The mind set of lawyers is the greatest obstacle to increased fairness in the legal system.

Only a very select few would have found anything remarkable or upsetting in those observations.

However, Bennett declared that Cowdery’s remarks were “facile and silly” and that perhaps he didn’t think enough about it when preparing his speech.

Needless to say, the response of NSW Law Society President, Mr Vanity Fair (aged 13-and-a-half), underscored precisely the point that Cowdery was making.

Vanity said there was nothing of worth in the speech and that it was just “an out-of-date grab for attention”.

Cowdery, he stamped, needed to cite statistics if he was going to attack lawyers and the Law Society.

What must have made the whole episode such a sore point for Bennett is that the DPP began his speech by saying it was Babette Smith who had asked him to deliver this lecture and it is “with her service to the bar in mind that I do so”.

Of course, Bennett and his council had not long ago sacked Smith as the chief executive of the Bar Association.

There is still no credible explanation as to why Smith was dismissed, apart from the fact that people on the executive committee didn’t much care for her – in particular Burbidge, Toner and McColl.

She was regarded as too pushy, she did not pay due respect to the egos and sensitivities of the councillors, she did not know her place.

One grumbler said that she wore the wrong coloured clothes to Mason P’s swearing-in a fuschia jacket with a black skirt.

There was talk of poor relations with staff and a spat with the man who ran the grog shop in the bar common room.

The public justification for her dismissal was the “governance” of the Bar Association was being reviewed and therefore she was “superfluous”.

The truth is closer to the proposition that she was on the nose with the dominant faction on the council … so off with her head.

The “Smith issue” had been one of the matters that permeated the last bar council elections.

There was a combined common law, workers comp and criminal law ticket put together by Rick Burbidge.

Some members of the Bar Association must have got the impression that this ticket represented a frisson of hostility towards the chief executive.

This seems the only explanation for the emergence of a circular singed by Ian Barker and other leading criminal lawyers, which said they were not endorsing the Burbidge ticket as representing criminal barristers.

The Barker circular added:

“It is our perception that in the current difficult environment the Bar Association is generally working well in the interests of the criminal bar, and the chief executive has been active in pursuing our interests.”

But, look at the completely shoddy way the council of the bar handled Smith’s sacking.

David (Bubba) Bennett put out a statement in June which said:

“Because of the consideration being given to the question of governance there has been no role or function for Ms Smith to perform as chief executive, or otherwise within the association, since late May 1997.

From that time to the present she has been on paid leave and has been and continues to be superfluous to the employment requirements of the association.

This situation will not change in the foreseeable future.

Accordingly, Ms Smith’s position with the Bar Association is redundant.”

What a shocker of a farewell announcement.

No thanks for a job well-done in difficult circumstances.

No appreciation for the loyal and articulate way in which she had put the bar’s position.

No expression of sadness at her departure.

No best wishes for the future.

The queer thing is that Bennett was singing Smith’s praises in a memo to members five months before she was given the bullet.

Marking her third year as chief executive Bennett wrote that she had achieved the objectives of improving the bar’s external relations and communications with members, and modernising the administration and technology.

He said that she had “revolutionised” the bar’s “distant and essentially negative relationship with government and the media… On your behalf I thank her and her staff and congratulate them on all they have energetically achieved”.

At least seven silks wrote to Bennett saying that the chief executive had been treated appallingly.

Babette’s brother, Rob Macfarlan QC, also sent a stinker of a letter to all members of the council.

“I am writing to express my disgust at the manner in which my sister Babette has been treated by the bar council and the executive in the last few days…

I had a meeting with Bennett and Burbidge on Tuesday morning.

Nothing that was described to me in that meeting concerning the existence of conflicts between Babette and the executive and staff, could remotely have justified the precipitous action that was taken to call an extraordinary bar council meeting for Tuesday evening…”

Macfarlan said that any decision that the council may have made about Smith’s future had already been pre-empted by the executive committee’s decision to require her to leave.

“The decision of the council to wash its hands of the issues and confer a discretion upon the executive to give effect to its view that Babette should be required peremptorily to leave the Bar Association offices was disgraceful, and led to the quite offensive situation of the president attending at the chief executive’s office the next morning to require her to leave the premises…”

Now, the bar council has offered the job of its new chief executive to Philip Alan Selth.

He is a former Queensland and Canberra public servant, and since 1992 has been a Pro Vice-Chancellor of ANU, in charge of planning and administration. He has also been a leading light in the Canberra Historical Society.

Some have unkindly described the appointee as a “civilian Rear Admiral”.

The recruitment babble called for a candidate who could “develop strong relationships with all key stakeholders”.

However, the important requirement of the job is to be able to keep the dominant faction of the day happy.