Transcript Document

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
1 Spigelman
LPCCWA
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 )
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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.
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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
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• 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.
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“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
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 “… 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.
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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.
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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.
6.
Application
(2)
A breach of these rules may constitute unsatisfactory
professional conduct or professional misconduct.
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;
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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)
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may bring the profession into disrepute.
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)
(b)
(c)
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unlawful discrimination; or
unlawful harassment; or
workplace bullying.
23 .
Another practitioner’s error
32 .
Independence
Not client “mouthpiece”
33 .
Formality before court
36 .
Responsible use of court process and
privilege
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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.
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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 all allegations
made out to the required standard [Briginshaw].
Penalty: Public Reprimand
 LPCC 2012 Annual Report Case Study 3
Incident at an informal mediation
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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)
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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?
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