‘Elitist and exclusionary’: NSW Bar Council slammed over top silk reprimand

The NSW Bar Council has been attacked over its decision to reprimand top defamation silk Sue Chrysanthou after she agreed to represent Christian Porter against the ABC.

Sue Chrysanthou leaving the Federal Court in Sydney. Picture: NCA NewsWire / Adam Yip

The NSW Bar Council has been attacked over its “elitist and exclusionary” decision to reprimand Sue Chrysanthou SC after she agreed to represent former ­attorney-general Christian Porter in his now-discontinued defamation case against the ABC.

The Bar Council found Ms Chrysanthou engaged in “unsatisfactory professional conduct” after she acted for Mr Porter in his case against the broadcaster, which published a story in March 2021 about an unnamed cabinet minister accused of a historical alleged rape.

The Bar Council’s reprimand comes despite a finding by the Full Court of the Federal Court last year that the high-profile barrister had not been unethical in choosing to represent Mr Porter.

Disciplinary action against Ms Chrysanthou has sparked debate in Sydney’s legal fraternity. “She’s an outsider,” one lawyer told The Australian.

Barrister Sue Chrysanthou SC (left) and barrister Brett Walker SC (2nd right) arrive at the NSW Supreme Court in Sydney in Sydney. Picture: NCA NewsWire/Joel Carrett

“She’s not of those people, they don’t like her and they don’t like her doing well.”

Mr Porter had engaged Ms Chrysanthou to represent him in his case against the ABC, but was challenged by arts administrator Jo Dyer, a friend of a deceased woman who had accused the former attorney-general of raping her three decades ago.

Ms Dyer, a potential witness for the ABC in the proceedings, alleged a conflict of interest because Ms Chrysanthou had earlier met with her and given her advice, as a favour to another defamation barrister.

Federal Court judge Tom Thawley ordered Ms Chrysanthou to relinquish the case after ruling she had received confidential information that was relevant to the case and could present a “danger of misuse”.

At an appeal hearing last year, Mr Porter’s barrister, Bret Walker SC, argued that a barrister could not refuse a brief because it was “embarrassing” and referred to the “cab rank rule”, which required Ms Chrysanthou to act for the former attorney-general when he approached her.

The cab rank rule prevents barristers refusing work because they disagree with the views or actions of the prospective client.

The Full Court of the Federal Court dismissed the appeal but Justice Lee expressly found that Ms Chrysanthou had not been unethical in choosing to represent Mr Porter.

“Although Ms Chrysanthou was mistaken in the judgment she formed (to represent Mr Porter), no finding was made by the primary judge that her view was not formed in good faith.”

Mr Porter dropped his defamation case against the ABC but has denied the allegations.

Ms Dyer separately made a complaint against Ms Chrysanthou to the Bar Council, which resolved to reprimand the barrister at a meeting in June for having “engaged in unsatisfactory professional conduct in respect of a disciplinary matter”.

One senior Sydney lawyer told The Australian: “This whole affair reflects poorly on the Bar Association, who have substituted their own views for those of the Full Court.

“It’s no secret that (Ms Chrysanthou) sought the advice of three eminent silks – former presidents of the Bar Association – before accepting the brief,” the senior lawyer said.

Another prominent lawyer said the Bar Council decision reflected “the dominance of private school networks within the Bar” and contrasted its failure to act in the cases of several “older white male” barristers who had engaged in far more egregious conflicts of interest without any challenge.

Ms Chrysanthou has the option of appealing to the NSW Civil and Administrative Tribunal but it is not clear whether she will do so.

Ms Chrysanthou declined a request for comment.