Professional Courtesy Nick Pope Manager Investigations Legal Profession

Professional Courtesy Nick Pope Manager – Investigations Legal Profession Complaints Committee LPCCWA © 2013 Legal Profession Complaints Committee of Western Australia

Fundamental Obligation “Civility remains on daily display in our courts and throughout the legal system. All legal practitioners must, and generally do, treat judges, clients, witnesses and each other with respect… Ours is a profession of words. We must continue to express ourselves in a way that demonstrates respect for others… The tradition of civility in the legal profession goes well beyond the requirements of appearance in court. It is to be found in the full range of discourse between practitioners, both oral and in correspondence. This tradition has been maintained in the law to a greater degree than other areas of social discourse. It is recognised as a fundamental ethical obligation of a professional person. ” 1 LPCCWA 1 Spigelman JJ, Address to the Annual Opening of Law Term Dinner of the Law Society of NSW, Sydney, 30 January 2006

Whilst professional “courtesy” connotes notions of politeness, it has wider application [based on respect] �Duty of candour �Duty to not cast aspersions on other parties or witnesses without a proper basis �Duty not to issue proceedings without merit (thereby avoiding wasting of the court’s and others’ time and resources) �Duty of diligence (including responding to correspondence and returning phone calls) �Duty to conduct cases efficiently and expeditiously �Duty not to engage in unfair tactics (eg “sharp practice”, unjustified threats) LPCCWA

What makes Lawyers different “Lawyers occupy a critical and sensitive place in the functioning of a society governed by the rule of law. This is why the practice of law is so much more than a business or an industry and why lawyers are required first and foremost to be officers of the court and to prove that they are ‘fit and proper’ to hold such an office. The way lawyers conduct themselves directly impacts on public confidence in the profession and more broadly, in the administration of justice. ” 2 LPCCWA 2 Queensland Law Society website “Legal Ethics Introductory. What makes Lawyers so different? ”

Officer of the Court “It is the taking of the oath or affirmation, and the signing of the roll that marks the transition from simply holding a law degree to being a lawyer. It is on this occasion that a lawyer’s duty to the court is enlivened. A candidate presenting for admission today may hope to gain any number of benefits. One might have aspirations to advise publicly listed Blue Chip clients on ASX compliance, while another might wish to defend the criminally accused. Both will go on to perform very different duties as lawyers, however, both candidates will owe the same duty to the court. Being admitted means that a lawyer owes a paramount duty to the court in all of their future dealings. LPCCWA

[Benefit & Burden] A lawyer therefore carries both a benefit and a burden. The benefit is obvious; the opportunity to pursue a career in the law as a member of the legal profession. The burden lies in the lawyer’s obligations to apply the rule of law and in the duty “to assist the court in the doing of justice according to law”. It is well established that, as an officer of the court, a lawyer’s paramount duty is to the court as part of the duty to the proper administration of justice. The oath or the affirmation that lawyers take means they have this additional level of responsibility and that they may not be driven by the client’s wishes alone. ” (“The Duty Owed to the Court – Sometimes Forgotten”, 2009, Chief Justice Warren of the Supreme Court of Victoria ) LPCCWA

Misconduct – Concepts and Rules LEGAL PROFESSION ACT 2008 402. Unsatisfactory professional conduct unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. LPCCWA

403. Professional misconduct professional misconduct includes — (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. LPCCWA

Section 404 gives examples of conduct capable of constituting unsatisfactory professional conduct or professional misconduct. • a contravention of the Act • charging of excessive legal costs • a conviction for a serious offence, tax offence or offence involving dishonesty • becoming an insolvent under administration • becoming disqualified from managing or being involved in the management of any corporation under the Corporations Law • failing to comply with an order of the Complaints Committee, SAT, Supreme Court exercising jurisdiction under the Act • failing to comply with a compensation order under the Act LPCCWA

• Definitions of unsatisfactory professional conduct and professional misconduct not exhaustive. • Scheme of the Act - unsatisfactory professional conduct less serious than professional misconduct. • Only unsatisfactory professional conduct can be dealt with under the summary conclusion powers of the Complaints Committee and where the practitioner is generally competent and diligent. LPCCWA

“Common Law” • • Kyle v Legal Practitioners Complaints Committee [1999] 21 WAR 56 at [72] - Parker J described unprofessional conduct [under the 1893 Act] as: “…conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence [first limb], or that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence [second limb]. ” “Undoubtedly, conduct which met the description of unprofessional conduct under the 1893 Act or the 2003 Act constitutes either unsatisfactory professional conduct or professional misconduct for the purposes of the 2008 Act. ” Legal Profession Complaints Committee v O’Halloran [2011] WASAT 95 LPCCWA

�“… a charge of misconduct as relating to a solicitor need not fall within any legal definition of wrong-doing. It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or to practice the precepts of honesty or fair dealing in relation to the courts, his clients or the public”. Kennedy v the Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563 �Kyle second limb – Professional Conduct Rules reflect conduct observed or approved by members of the profession. LPCCWA

LPCC’s view Legislative intent is that SAT can find that a practitioner has engaged in unsatisfactory professional conduct or professional misconduct in a wide range of circumstances, guided by, but not confined by, any common law formulation of unprofessional conduct. LPCCWA

Discourtesy as Misconduct �Depending upon the nature and seriousness of the conduct, professional discourtesy could amount to either unsatisfactory conduct or professional misconduct and could constitute unprofessional conduct within either limb of Kyle. �Contemporary standards “The matter must be judged by contemporary Australian standards. It may be offensive, but it is not contempt of court, for a person to describe a judge as a wanker. ” Anissa Pty Ltd v Parsons [1999] VSC 430 at [22] LPCCWA

“Health Warning” Caution is counselled in relying upon Anissa in terms of unprofessional conduct. Even if not contempt of Court, discourteous conduct to the Court may still amount to unsatisfactory professional conduct. Anissa did not involve conduct in the presence of the Judge. LPCCWA

LEGAL PROFESSION CONDUCT RULES 2010 4. Application (2) A breach of these rules may constitute unsatisfactory professional conduct or professional misconduct. 6. Other fundamental ethical obligations (1) A practitioner must — (b) be honest and courteous in all dealings with clients, other practitioners and other persons involved in a matter where the practitioner acts for a client; and (d) avoid any compromise to the practitioner’s integrity and professional independence; LPCCWA

6(2) A practitioner must not engage in conduct, in the course of providing legal services or otherwise, which — (a) demonstrates that the practitioner is not a fit and proper person to practice law; or (b) may be prejudicial to, or diminish public confidence in, the administration of justice; or (c) may bring the profession into disrepute. LPCCWA

7. Client instructions A practitioner must — (b) treat a client fairly and in good faith, giving due regard to the client’s position of dependence, the practitioner’s special training and experience and the high degree of trust the client is entitled to place in the practitioner; 16. Maintaining professional integrity (1) A practitioner must not attempt to further a client’s matter by unfair or dishonest means. 17. Conduct of practice (5) A practitioner must not engage in conduct which constitutes — (a) unlawful discrimination; or (b) unlawful harassment; or (c) workplace bullying. LPCCWA

23. Another practitioner’s error 32. Independence Not client “mouthpiece” 33. Formality before court 36. Responsible use of court process and privilege LPCCWA

Professional Courtesy and the LPCC �Role of the Rapid Resolution Team (RRT) �Most complaints relating to professional courtesy involve discourtesy in the sense of politeness and are resolved (usually through an apology) �Personal factors (including health) may be a contributing factor – may lead to mentoring or PC conditions. �Most matters involving discourtesy where the Committee finds there is a reasonable likelihood of a finding by SAT of unsatisfactory professional conduct will be dealt with under the summary conclusion powers LPCCWA

Discourtesy as Professional Misconduct For a recent example of discourtesy amounting to professional misconduct see LPCC v in de Braekt [2012] WASAT 58. The practitioner’s conduct included: � being consistently discourteous and offensive to a Magistrate by making persistent interruptions and repetitive demands on a total of 5 occasions, adopting a belligerent tone and making an entirely unfounded allegation of actual bias against the judicial officer; � sending a series of 6 emails over 2 weeks to a police officer that were grossly offensive in their tone and content � sending 1 email to a senior police officer the tone of which was significantly discourteous and offensive and the final paragraph of which was threatening [as to possible future cross examination of the officer] � behaving in a discourteous and abusive manner to a security supervisor at the Central Law Court The practitioner’s conduct, along with a finding of misleading the court, resulted in a report to the Supreme Court (Full Bench) with a recommendation of strike off. Interim suspension ordered pending determination by the Supreme Court. WA LPCC

The Tribunal found that while individually these findings would not warrant strike-off, collectively, the grounds demonstrate a character and course of conduct on the part of the practitioner which is inconsistent with the privileges of practice as a member of the legal profession and shows that the practitioner is not a fit and proper person to be a legal practitioner. Tribunal highlighted that the conduct: � Towards the judicial officer compromised the confidence necessarily placed by judicial officers in legal practitioners which is essential to the proper administration of justice � Towards the police officers compromised the maintenance of the relationship between legal practitioners and the police to the detriment of not just the good standing of the legal profession, but also the proper functioning of the criminal justice system � Towards a court security supervisor compromised not only the good standing of the legal profession but also the important relationship between the legal profession and security staff in courts and tribunals. LPCCWA

Examples – dealings with the court �in de Braekt �New South Wales Bar Association v Di Suvero [2000] NSWADT 194 Conduct by the practitioner (who had previously practised in the US) included statements to the Court comparing the Judge’s conduct of the hearing to a “Star Chamber” and the US House of Representatives Committee on Un-American Activities. Other conduct included offensive and insulting statements to the Crown Prosecutor (including unsubstantiated allegations of dishonesty) Penalty: 6 months suspension from practice LPCCWA

Examples – dealing with other practitioners �Di Suvero �NSW Bar Association v Jobson [2002] NSWADT 171 Barrister found guilty of unsatisfactory professional conduct as a result of heated exchange following a directions hearing in the Supreme Court. Disputed allegations of verbal abuse (including expletives) and grabbing lapel of suit jacket. Not allegations made out to the required standard [Briginshaw]. Penalty: Public Reprimand �LPCC 2012 Annual Report Case Study 3 Incident at an informal mediation LPCCWA

Examples – dealing with other practitioners �Legal Services Commissioner v Winning [2008] LPT 13 Legal Practice Tribunal of Queensland found practitioner guilty of unsatisfactory professional conduct over the context of a “private conversation” at the Bar table before commencement of proceedings. �LPCC v Quigley [2005] WASAT 215 Practitioner found guilty of unprofessional conduct for intimidating and threatening behaviour towards the Complaints Committee whilst they were investigating a complaint against him. Tribunal found the practitioner unjustifiably alleged that the Committee, its members and the Complaints Officer were maintaining disciplinary proceedings against him for an improper purpose or at the dictation of the head of the Anti-Corruption Commission. Penalty: Reprimand + $8, 000 fine + costs of $18, 750 LPCCWA

Examples – dealings with witnesses �In the Matter of Basil Stafford – VLPT 603 of 1997 Victorian Barrister found guilty by Legal Profession Tribunal of misconduct and fined $1, 000 following angry confrontation with a police witness in the precincts of the Court. �LPCC v Carlose [2002] WASAT 104 Unsatisfactory professional conduct included requiring a witness to attend court for unnecessary cross examination (witness had to travel from Kojonup to Perth) LPCCWA

Examples – dealings with third parties and members of the public �Lander v Council of the Law Society of the ACT [2009] ACTSC 117 Discusses general principles �Winning – solicitor also found guilty of unsatisfactory professional conduct for using offensive and insulting language toward officer of the Australian Crime Commission relating to the execution of a search warrant at his client’s premises and towards ACC administration staff relating to payment of travel expenses. Penalty: Reprimand + 12 months mentoring LPCCWA

Examples – dealings with third parties and members of the public �in de Braekt �LPCC 2012 Summary Conclusion matter involving communications to the Department of Child Protection (DCP) In the course of acting in relation to proceedings commenced against his client by the Chief Executive Officer of the DCP the practitioner sent an email to the Director and two solicitors appointed to act for the client’s children in which the practitioner used highly derogatory, intemperate and inappropriate language, to attack the professional competence and integrity of a Senior Field Officer employed by the DCP, when there were no reasonable grounds for doing so. Penalty: Fine of $1500 LPCCWA

Checklist for correspondence �Clients and Unrepresented Parties Would it embarrass me if this correspondence was copied to the LPCC? �The Court, Colleagues and Others Would it embarrass me or my client if this correspondence was exhibited to an affidavit? LPCCWA