Ethics FAQs - Communication and Courtesy
In the Solicitors Rule 2007, in the chapter ‘Relations with other practitioners’, s.21 states that in your dealings with other legal practitioners (which of course includes barristers) you must take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that your communications are courteous and that you avoid offensive or provocative language or conduct.
Section 28.5 of the Solicitors Rule, in the chaper ‘Relations with third parties’, states that you must not, in connection with the practice of law, in any communication with another person, make any statement that is abusive, offensive or insulting or which is unbecoming of a solicitor or which could bring the profession into disrepute.
In recent years a number of Queensland solicitors have been disciplined for such conduct. It is clear from the reports that this behaviour is worthy of sanction.
Perhaps the most notable case is Baker v Legal Services Commissioner [2006] QCA 145, where a solicitor used offensive language to, or in the presence of, a client, as well as members of staff. He called the client an ‘absolute moron’, and said to his secretary in the presence of a client, ‘I can't deal with #### morons. Get out of my office’. He used the word 'bullshit'. He also said to a client in the reception area ‘What the #### are you doing here?... You don’t have the right to waste our ####ing time. I have spent enough ####ing time on the ####ing file. You are a ####ing moron. If you had signed the ####ing contract properly in the first place we wouldn't be in the ####ing mess. #### off out of my reception area.’
The Legal Practice Tribunal stated that ‘It is inconceivable that the behaviour the subject of (the charges) could ever be regarded as acceptable behaviour by a solicitor towards a client or an employee. It is bound to bring the profession into disrepute.’
Not all cases are so extreme. In recent years the Legal Practice Committee has found unsatisfactory professional conduct in cases where:
• a solicitor insulted her client’s opponent in a de facto property dispute, saying ‘You are a grotesquely ugly man. I cannot believe that (client’s name) would have been with someone as ugly as you.’
• a solicitor said to his client at court words to the effect 'I told you the deal was $2,000 cash. F### this, I'm going to let you go in on your own'
• a solicitor wrote an offensive, insulting and acrimonious letter to a third party.
For an example of ‘scandalous and offensive submissions’ to a Magistrates Court and an ‘improper’ intimidatory letter to the presiding Magistrate, each amounting to professional misconduct, see Legal Services Commissioner v Turley [2008] LPT 4. And see Lawyers, Language and Legal Professional Standards: Legal Services Commissioner v Turley [2008] LPT 4; Jones, Nicky 28 U. Queensland L. J. 353 (2009).
Legal Services Commissioner v Winning [2008] LPT 13 and Legal Services Commissioner v Winning (No. 2) [2008] LPT 14 involved a number of charges of using insulting or offensive language:
• to a police prosecutor in a court hearing (charge 2)
• to a Crown Prosecutor in a private, although work-related, telephone conversation (charge 3)
• to officers of the Australian Crime Commission executing a search warrant (charge 4)
• to a paralegal employee of the ACC (charge 5)
• to a Crown Prosecutor in the foyer of the court (charge 6)
• to another lawyer at the bar table overheard by a DPP instructing clerk (charge 7)
• about the then DPP Leanne Clare in submissions to the Magistrates Court in the course of defending himself in committal proceedings (charge 9).
The solicitor was found guilty of charges 4, 5, 7 and 9 only. In the second of those judgments, dealing with penalty, the Legal Practice Tribunal said:
‘[6]…………..The charges in respect of which the respondent has been found guilty, except for charge 9, relate to conduct in the form of coarse and abusive language, the tolerance for which may be expected to change with changing community standards. Here, assessed against contemporary community standards, the conduct was so grossly offensive as to bring the legal profession into disrepute.
[7] The reputation of the legal profession is, as was observed in Bolton v Law Society [1994] 1 WLR 512, at 518, its most valuable asset. Although the reputation to which the court was there referring tends to be generally understood to refer to matters of honesty and integrity, it can also encompass courteous or, at least, civil conduct, to professional colleagues (Legal Profession (Solicitors) Rule 2007 Rule 21) and those who work within the broader rubric of legal services, including police. Coarse and insulting personal conduct by a member of the profession in the course of acting as a legal practitioner will diminish the standing of the profession as a whole.’
In Legal Services Commissioner v Cooper [2011] QCAT 209 there was a finding of unsatisfactory professional conduct where a solicitor wrote several letters to another solicitor in a family law dispute, the terms of which were insulting of the other solicitor and of their client and apparently in breach of Solicitors Rule s.21. Of the issue that the letters were written on the client's instructions and that the client had strong feelings about the matter, the Tribunal said that the solicitor should have fought harder against allowing the heat of the dispute to colour his own language.
Further reading:
Professional courtesy: Is there still a place for it in modern practice? by Petrina Macpherson Proctor February 2010
Professional Courtesy. What does it really mean? by Megan Mahon Proctor March 2008
NSW Office of the Legal Services Commissioner ‘Civility & professionalism – standards of courtesy’ November 2006 and its Addendum.
Also see Letters of Demand in Related FAQs below.
The relevant provisions are to be found in s.28 of the Solicitors Rule 2007 ’Communications’ which states:
'A solicitor must not, in connection with the practice of law, in any communication with another person:-
28.1 represent to that person that anything is true which the solicitor knows, or reasonably believes, is untrue; or
28.2 make any statement that is calculated to mislead or intimidate the other person, and which grossly exceeds the legitimate assertion of the rights or entitlement of the solicitor’s client; or
28.3 threaten the institution of criminal or disciplinary proceedings against the other person in default of the person's satisfying a concurrent civil liability to the solicitor’s client.
28.4 where the other person is not, to the solicitor’s knowledge, represented by another legal practitioner, assert that the other person should submit to a personal interview or do some act that might affect the legal rights of that person without first suggesting that the person seek independent legal advice.
28.5 make any statement that is abusive, offensive or insulting or which is unbecoming of a solicitor or which could bring the profession into disrepute.'
This is in the ‘Relations with third parties’ chapter of the Solicitors Rules which has the following ‘Statement of general principle’:
‘Solicitors should, in the course of their practice, conduct their dealings with other members of the community, and the affairs of their clients which affect the rights of others, according to the same principles of honesty and fairness which are required in relations with the courts and other lawyers and in a manner that is consistent with the public interest.’
As a good example of what not to include in a letter of demand, see this Censure Report from 2003. The QLS Council censured a solicitor for unprofessional conduct or practice, much of which would now likely be contrary to s.28.
You can, on instructions, but you need to be very careful how you do this, as was stressed by the Chief Justice sitting in the Legal Practice Tribunal in the case of Legal Services Commissioner v Sing [2007] LPT 004. In that case, the LSC unsuccessfully prosecuted Mr Sing for sending a letter to a tenant on behalf of his wife, the landlord, as her solicitor. The letter threatened that if the tenant didn’t immediately pay the rent due, Mr Sing would send a letter to the police inviting the police to investigate the circumstances surrounding previous dishonoured rent cheques. Mr Sing also enclosed with the letter a copy of the proposed letter to the police. Usefully, the wording of the letters to the tenant and the police is set out in the judgment.
- You must not threaten the institution of criminal proceedings. The Tribunal considered that Mr Sing did not, that he stopped short at foreshadowing inviting the police to investigate the possible commission of an offence, and that he did not actually threaten to launch a prosecution.
- You must take care that you do not use your position as a solicitor to intimidate the addressee. The judgment stated that there is nothing wrong with your bringing pressure to bear on someone to discharge their legal obligations, provided that you act with reasonable restraint and in a measured way. The issue is whether you unfairly use your professional position to reinforce the application of pressure, so as to overreach or intimidate the addressee. (No doubt the nature of the addressee will be relevant to these questions, that is whether they are an unrepresented person or another solicitor). The Tribunal was not satisfied that the pressure Mr Sing brought to bear was improper or unfair. The judgment suggests that you should err on the side of caution and be extremely careful before resorting to even arguably threatening conduct. It also suggests that you stick to stating matters of fact and not make assertions as to legal conclusion or judgment.
The first point to make is that the QLS has no jurisdiction to intervene in these circumstances, and as a matter of policy will not do so, even informally. The second point is that complaints about a solicitor’s conduct can only be made to the Legal Services Commission.
More generally, this question raises similar issues to the last FAQ. Section 28.3 of the Solicitors Rule 2007 is again relevant. Take care not to threaten the institution of disciplinary proceedings. You should be sure that the circumstances are such as to warrant a complaint, and you might usefully confirm this with colleagues or a Senior Counsellor from the QLS panel.
You should also appreciate that there may be no action the LSC can take. The other solicitor may be acting on instructions, or there may be some other reason for this lack of response. Such matters may be confidential or privileged and the other solicitor may not be able or willing to provide details, even to the LSC.
If there is no legal liability to pay legal costs or interest then this is likely to be contrary to s.28 of the Solicitors Rule 2007 in that you will be representing to the addressee of the letter that something is true which you know or reasonably believe is untrue (contrary to s 28.1), or you will be making a statement that is calculated to mislead the addressee, and which grossly exceeds the legitimate assertion of the rights or entitlement of your client (contrary to s 28.2).
You need to be especially careful in how you word your letters following this important recent case: Australian Competition and Consumer Commission v Sampson [2011] FCA 1165. You must make sure that you do not misrepresent or overstate the consequences of non-payment of an alleged debt. By way of summary, here is the ACCC News Release about the case and a Proctor article.
There should be no problem in stating in a pre-action letter of demand that in the event that court proceedings are commenced a claim for legal costs and interest will be included, so long as it is clear in the letter that there is no current obligation to pay those additional amounts, and provided that there is a general entitlement to costs on successful claims in the appropriate jurisdiction.
