ETHICS SOME CAUTIONARY TALES INTRODUCTION The legal profession, like many other professions, has developed a system of rules that regulates the conduct of its members. The sanctions for breach of the rules range from simple reprimand, to fines, to loss of the right to practise law. This paper looks at some recent cases that may, it is hoped, serve as a reminder of some of our ethical obligations to our clients and the courts. There is nothing startling or new in these cases but the subject matter in each case is a little different from the usual conflict of interest or hand in the till type issues. They do highlight the ease with which breaches of our duties may occur. A. DISCOURTEOUS, OFFENSIVE OR PROVOCATIVE CONDUCT Lander v Council of the Law Society of the Australian Capital Territory [2009] ACTSC 117 Higgins CJ, Grey and Refshauge JJ This case dealt with the relations between a solicitor and a third party. 1
Lander was a solicitor acting for a Mr Boutsis in relation to an invalidity claim against the ACT Department of Education and Training. Lander s wife was employed by the Department as a teacher. On behalf of his client he sent the Department a letter that contained the following CONDUCT OF YOUR AGENCY AND MR BOUTSIS Your Department has a long history of failing to communicate at all or to communicate substantively and honestly. This has been documented in hundreds of cases and shows no sign of improvement. I act for Mr Boutsis. In my brief encounters with officers of your agency, they have been rude, unhelpful, obsessive and compulsive in relation to their own ego and their own self-importance and otherwise unresponsive. This persists to the present time. Mr Boutsis has been the subject of a recommendation which your Department has that he be promptly medically retired and despite the fact that your Department has had that report for about six weeks, it has not communicated to Mr Boutsis; or, at his specific request, to his solicitor, this firm, what it is doing about having him medically retired or arranging pre-retirement payment or anything else. This is consistent as we say with years of malpractice and maladministration by your organisation. It appears that nothing will change that conduct and that the Department bears grudges against people who engage lawyers, particularly competent ones. We ask that you please immediately summons the people in your case management area and ask them why it is that they have refused to correspond with me in accordance with Mr Boutsis directions and requests, refused to provide reports to me, refused to progress his retirement and otherwise behaved in a shamefully non-communicative and disinterested fashion. The practices of people in your case management area are by and large consistent with Mr Boutsis and my experiences and were documented in 2
several Commonwealth AAT proceedings including that of my wife. My wife remains a teacher in your system and I ask that no recriminations be taken against her because her husband happens to be a solicitor acting for teachers. Would you please respond to this correspondence, a copy of which is being forwarded to your Minister who seems to mistakenly believe that there is no cause for any intervention or concern with the conduct of your Department. Thank you, Yours sincerely LANDER & CO David Lander c.c. Minister ACT Department of Education, Youth and Family Services The Department complained to the ACT Law Society alleging a breach of standards from the legal practitioner. That letter of complaint included the following In his letter, Mr Lander made a number of general statements about the Department of Education and Training and its staff failing to communicate, being dishonest, rude, unhelpful, obsessive and compulsive, bearing grudges against people who engage lawyers; as well as general allegations of malpractice and maladministration. Mr Lander also implied that the Department of Education and Training may engage in recriminations against his wife, who is a teacher in the Territory, an employee of the Department, and who has no involvement in the matter addressed in the letter. Departmental staff have been offended by Mr Lander s accusations 3
and feel that they have been unfairly targeted by his derogatory and slanderous remarks. Additionally, it is impossible for the Department to respond to any meaningful way to such serious yet non-specific accusations. In a reply to a letter from the Law Society, Lander stated I have the right and the duty as a solicitor to draw on my experience, skill, knowledge and experience when acting for clients. They arise in part because I have had 30 years of experience with ACT Education as a parent, citizen and lawyer. I have acted for many clients, both students and teachers in respect of ACT Education matters. I am entitled to draw and am expected to draw on those skills, that knowledge and that experience. To seek to isolate a lawyer s credentials and to seek to tie their hands behind their back as your solicitor recently suggested in advice to the Society s Council is, with respect, improper. The ACT Government has legislated The Human Rights Act 2004. Section 16 of that Act reads as follows: - Freedom of Expression I am a citizen before I am a lawyer. I am a person as defined in The Human Rights Act. The Human Rights Act (sic) overrides any Rule which may be in conflict with a statutorily prescribed freedom of expression. Nothing I wrote to the Department was other than based on my knowledge, experience, skills and the facts of the case. I ask you to look at the experience of the client and my own in trying to deal with the Department. I say as a lawyer and a citizen that my experience, knowledge and skills lead me to believe that the ACT Department of Education systemically engages in maladministration, in cover-ups of wrong doings and in abuses of power. Neither the Department nor the Society can or should prevent citizens or lawyers from expressing such views. We live in an age where lawyers either stand up against the abuses of the State or we succumb to those abuses. It is not the society s role to censor or to adjudicate on these fundamental freedoms and duties, but to defend them. Yours sincerely, LANDER & CO David Lander 4
There were further exchanges of correspondence, which are set out in the judgment, including one from the solicitor described by the Court as unsurprisingly truculent. In one letter Mr Lander makes the point that what he said in his letter to the Department he could equally make in a letter to the Canberra Times, or on the airwaves. Included in that letter is the following I remind the Society that both the President of the Appeal Court of our Supreme Court and the Chief Judge have repeatedly urged solicitors when entering the profession to remember to act upon the most solemn duty of all lawyers. That solemn duty as I have brought to the Society s attention before and do so again is to represent people against abuses of power by the State. Council of the Law Society made an application to the Legal Practitioner s Disciplinary Tribunal, the chief allegations being (i) unsubstantiated statements about the Department and its staff and (ii) the tone of the correspondence. The Legal Profession (Solicitors) Rules provide The statement of principles prefacing the section headed Relations With Third Parties contained in the Rules provides: Practitioners 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. [The Professional Conduct and Practice Rules 2005 (Vic) has the same provision] Rule 25 provides: A practitioner, in all of the practitioner s dealings with other practitioners must take all reasonable care to maintain the integrity of the legal profession by ensuring that the practitioner s 5
communications are courteous, and that the practitioner avoids offensive or provocative language or conduct. [Rule 21 of the Victorian Rules is in the same terms] The Legal Practitioner s Disciplinary Tribunal found Lander guilty of unsatisfactory professional conduct. (The reasons of the Tribunal are set out in paragraph 23 of the judgment and are well worth a read). On appeal, the Supreme Court supported and endorsed the general principles that the Tribunal adopted in its consideration of the complaint. However, it upheld Mr Lander s appeal. At paragraph 36, the Supreme Court whilst emphatically supporting the notion that the use of insulting language or behaving offensively towards members of the public is not conducive to the maintenance of the good name of the profession stated However, it seems to us that that principle in no way diminishes the right, indeed the duty, of a solicitor to represent his or her client s interests forthrightly and without fear or favour. If the conduct of public officials adversely impacting on a client is considered on reasonable grounds to be rude, unhelpful or any similar characterisation, it is no breach of the obligation of courtesy to point that out to those in authority, even though those criticised may consider the criticism unwarranted and offensive. Such communication may well be regarded as discourteous and provocative but, nevertheless, a subject that needs to be raised in the interests of the client as well as generally. The Court also considered that whilst Rule 25 of the Rules does engage ss 16 (freedom of expression) and 8 (recognition and equality before the law) of the 6
Human Rights Act 2004 (ACT) it was not inconsistent with those rights to place limits on professional behaviour. 1 Further, whilst stating that there was an obligation on a practitioner to deal with all persons with honesty and fairness, the question of courtesy was more difficult to assess and depended upon the circumstances. 2 The Court noted that under the Rules there was a difference between dealings with other practitioners and those with third parties. For instance, they said, it may be necessary to write a robust letter of demand accusing the recipient of fraud or other misconduct. The recipient, particularly if the accusation is untrue, will no doubt be offended, even outraged. Yet, if the solicitor had received apparently reasonable information supporting such an accusation, he or she is bound to put it to the recipient. 3 In the instant case there was no suggestion of dishonesty on the part of Lander nor that he made any allegation that he knew to be untrue or for which there was no reasonable basis. The Court further stated that the essence of the respondent Department s contention, which must be rejected as too broad, is that there is a general obligation on a solicitor to refrain from that which the recipient might find to be discourteous, or offensive or provocative statements. 4 At [56] - Of course, the fact that Rule 25 requires that practitioners ensure courtesy and the avoidance of offensive or provocative language does not of itself make an apparent non-compliance unsatisfactory professional conduct. The question is whether the solicitor had a 1 See paragraphs [37] [38]. 2 At paragraph [43] 3 At [47] 4 At [52] 7
reasonable basis for them. He said there was. That was not a contention that was examined. The Court stated that the real issue to be resolved was not that the solicitor made the comments complained of, but whether Lander s criticisms and accusations were false or without foundation, to his knowledge. That issue was not addressed by the Tribunal. The appeal was therefore upheld. 5 B. FALSE STATEMENTS TO COURT There can be no more serious disciplinary breach than misleading a Court or tribunal. Legal Services Commissioner v C (Legal Practice) [2012] VCAT 890, per Senior Member Smithers C was charged with four counts of professional misconduct relating to representations made to Chief Judge Rozenes, to Judge Hannan and to Judge Coish whilst acting on behalf of a client charged with a criminal offence. C was a solicitor acting for the accused. It was alleged that he made false and misleading representations (and that he did not take steps to correct those representations). The representations were as follows - 1. At a directions hearing he told Chief Judge Rozenes that he had briefed T as counsel for his client s trial, 2. At that directions hearing he stated that there was funding for the trial, 3. At another directions hearing before Judge Hannan he stated that the matter was ready to proceed, 5 At [58] 8
4. On the first day of trial he told Judge Coish that he had briefed S to appear. Before VCAT he was charged as follows: Charge 1 professional misconduct within the meaning of s 4.4.4(a) of the Legal Profession Act 2004 and contravention of the Professional Conduct Rules 14.1 (not knowingly make a misleading statement to a court) and 14.2 (must take all necessary steps to correct any misleading statement). This charge related to each of the representations and the failure to take steps to correct them. Charge 2 professional misconduct within the meaning of s 4.4.4(a) and contravention of Rule 30 (Dishonesty). Again this charge was particularised by each of the four representations. Charge 3 Professional misconduct at common law and within the meaning s 4.4.3(1) of the Act as the respondents conduct in misleading the court would reasonably be regarded as disgraceful and dishonourable by professional colleagues of good repute and competency. The particulars related to each of the four representations. Charge 4 Professional misconduct within the meaning of s 4.4.3(1)(a) of the Act in that he engaged in a substantial failure to reach or maintain a reasonable standard of competence and diligence by a) Failing to brief counsel to conduct the trial of the proceeding; b) Failing to procure funding or adequate funding for the conduct of the trial, c) Failing to adduce adequate evidence to explain his clients absence from Court on 2 occasions, and 9
d) Causing the trial of the proceeding to be delayed and causing inconvenience to the court and fellow practitioners. Professional misconduct at common law is constituted by conduct by a professional person in practise, which would be reasonably regarded, as disgraceful or dishonourable by professional brethren of good repute and competency. 6 The allegations were clearly made out. C in his evidence and submissions stressed that he was acting out of the best intentions. He had concluded that it was clear that his client had to plead guilty, that his client had no defence and that his ongoing preoccupation was to achieve that outcome. He said he could not tell the judges of this. 7 The Tribunal considered that C s approach was completely misguided. In effect he had kept the court in the dark in order to pursue what he saw as the best outcome for his client. This may have been affected by the fact that he had known his client s brother for 40 years. 8 The Tribunal referred to Guss v The Law Institute of Victoria 9 where Maxwell P stated It is difficult to overstate the importance in the administration of justice of the paramount duty of a legal practitioner not to mislead the court. Where there is any conflict or risk of conflict between that duty and what the practitioner perceives to be his/ her duty to the client, the duty to the court must always prevail. 6 See Re a solicitor [1960] VR 617, 620 7 At paragraph [15] 8 At [18] 9 [2006] VSCA 88 at [39] 10
The Tribunal found that C knowingly misled the Court on each occasion (Charge 1); that he did so dishonestly and that this was likely to a material degree to be prejudicial to the administration of justice, to diminish public confidence in the administration of justice and to prejudice adversely the practitioner s ability to practise according to the rules (Charge 2); that the conduct is correctly characterised as conduct which would be reasonably regarded as disgraceful and dishonourable by professional colleagues of good repute (Charge 3) and that his conduct constituted a substantial failure to reach or maintain a reasonable standard of competence and diligence (Charge 4). He engaged in misconduct. C s practising certificate was cancelled, he was prohibited from obtaining one for 12 months and he was ordered to pay costs in an amount of $10,089. At [32] - There can be no more serious disciplinary breach than misleading a Court or tribunal. C. CROSS EXAMINATION SOME DON Ts Libke v The Queen [2007] HCA 30 Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ This case considered, amongst other things, whether a miscarriage of justice arose by reason of the manner in which the prosecutor conducted the cross examination of the appellant. Kirby and Callinan JJ set out passages of the offending cross-examination of the appellant at trial at paragraphs [19] [27]. 11
It was, as they stated at [18] a scornful cross examination punctuated by interruptions of answers and comments, but not, regrettably, objection by counsel or intervention by the trial judge. By reason of the questioning the appellant, their Honours were unable to conclude that the appellant did have a fair trial. They were however in the minority. The majority dismissed the appeal on the basis that taken as a whole the breaches did not generate unfairness or a miscarriage of justice. However all judges considered the questioning improper. Heydon J stated that there were many respect in which the cross examination was in breach of ethical duties as well as the established laws of evidence. 10 He listed a number of heads of topics with which the cross examination offended. 1) Offensive Questioning a prosecutor must conduct himself with restraint and with due regard to the rights and dignity of accused persons. 11 His Honour described the most striking characteristic of the cross examination as wild, uncontrolled and offensive. It is unbecoming in a legal representative, especially a prosecutor, to subject a witness, particularly an accused, to harassing and badgering cross-examination. 2) Comments counsel infringed the rules when he regularly injected his personal views and editorial comments into the questions he was asking. Comments have several vices including that the witness has no opportunity to answer or that the jury may regard counsel as a person of special knowledge and status and therefore pay particular regard to 10 At [118] 11 At [122] 12
the comments. Personal opinion and beliefs should not be injected into a case. 3) Compound questions simultaneously poses more than one inquiry. 4) Cutting off answers before they were completed 5) Questions resting on controversial assumptions on occasion the cross examiner alleged that the accused was inventing evidence when in fact the proposition supposedly invented corresponded with evidence given by the complainant. 6) Argumentative questions some of the questions and observations of counsel did not seek to elicit information, but rather provided merely an invitation to argument. E.g. I suggest to you that or Is your evidence to be taken as suggesting that? Section 41 of the Evidence Act 2008 (Vic) the Court may disallow an improper question or improper questioning. Improper question or improper questioning are defined in s 41(3). D. SLEEPING WITH THE ENEMY If counsel is in a relationship with his or her opponent it is a good idea to disclose that fact to the client before acting. R v Szabo [2000] QCA 194 de Jersey CJ, Davies and Thomas JJA Conviction was set aside following a trial for burglary and rape, despite the prosecution case against the appellant being described by the Court as strong. The appellant complained first that his counsel was flagrantly incompetent in advising him to elect not to give evidence; and secondly he alleged that his counsel was in a relationship with the prosecutor such as to deprive the appellant of truly independent legal advice. 13
The first ground was dismissed. Defence counsel and the prosecutor had been in a relationship - they broke off a few months before the trial, spent a weekend together in a motel a few days after the appellant was convicted, and resumed a few months after the trial. The court considered that the overall appearance of the above circumstances is that of a separated couple who retained at least some interest in renewal. They were therefore much closer to each other than ordinary arms-length legal adversaries. 12 The court was unaware of any decision, which applies the well-known apparent bias test to the activity of persons other than decision makers. The true source of law for the resolution of such a question is the power of the Court of Appeal to set aside a conviction when it considers that there was a miscarriage of justice. At [61] Thomas JA stated Applying these principles to the present circumstances, one immediately has to consider whether it is proper for persons in particular relationships to act for contrary interests. Would it be improper for a husband and wife to oppose each other as counsel for different parties in the same case? I am not aware of any general reason of public policy why this should be prohibited, although individual factors may arise in particular instances which make it undesirable. There is no current rule of conduct approved by the Bar Association of Queensland that addresses such a problem. Speaking generally there does not appear to be any sufficient reason to think that by reason of their relationship such persons would not each do their best on behalf of their respective 12 At [47] 14
clients. There is of course a risk that counsel living in the same house or with access to each other's property could improperly read the other's brief, although the risk hardly seems any greater than in the case of counsel in the same group of chambers. A client with particularly valuable information might however choose not to take such a risk if notified of the relationship. That is one of the reasons that lead me to consider that in such a situation there is at the very least an ethical duty upon counsel to disclose to the client that such a relationship with opposing counsel exists. I do not think that a similar duty necessarily arises in relation to a case involving counsel in the same group of chambers. While this distinction may not seem entirely logical, its justification is the greater suspicion arising from sexual intimacy and an assumption that persons in a sexual relationship are more likely to be prepared to do a favour for the other than persons not in such a relationship. The court did not consider that there was in the instant case any good reason to suspect any collusion, connivance or lack of dedication. 13 The record suggested counsel acted competently. It was the failure to disclose the relationship in the circumstances that was a matter of concern. The degree of association that followed soon after the trial justified the inference that there existed an interest in renewal. In all the circumstances counsel was under a duty to inform the appellant of the past and present situation just as he would be if he and the prosecutor were still in a relationship. His Honour went on to state that the client should have the opportunity of indicating whether he or she wishes to continue with such counsel. Obtaining the client s consent in writing was considered wise. His Honour concluded that 13 At [63] 15
the importance of maintaining full confidence in the integrity and impartiality of those entrusted with the administration of justice, and in particular counsel, should not be under-estimated. In the end I conclude that an ordinary fair-minded citizen in the position of the appellant, with knowledge of all relevant circumstances, would entertain a reasonable suspicion that justice miscarried. 14 E. ONE FINAL OBSERVATION In January 2013 VLA changed its guidelines. Amongst the changes, funding is no longer provided for a solicitor to instruct at trial for more than two half days regardless of the complexity or length of such trial. It is worth remembering our duties to clients and courts before deciding whether or not to act on behalf of a legally aided client facing a serious criminal trial. Professional Conduct and Practice Rules 2005 apply to all regulated practitioners of the LIV practising as solicitors, or as solicitors and barristers. They include the following: Under the heading Relations with Clients Practitioners should serve their clients competently and diligently. They should be acutely aware of the fiduciary nature of their relationship with their clients, and always deal with their clients fairly, free of the influence of any interest which may conflict with a client s best interests. 14 [80] 16
Rule 1.1 A practitioner must, in the course of engaging in legal practice, act honestly and fairly in clients best interests and maintain clients confidences. Rule 2 A practitioner should agree to act for a client in a matter only when the practitioner reasonably expects: 2.1 to serve the client honestly and fairly, and with competence and diligence; and 2.2 to attend to work required with reasonable promptness. Rule 6.1 A practitioner must complete the legal services required by the practitioner s engagement unless one or more of the matters set out in 6.1.1 to 6.1.4 occur. Rule 6.2 deals with a practitioner engaged to act for a client required to stand trial for a serious criminal offence and the termination of the engagement. Rule 6.3 deals with the position of a client who is legally assisted. Without limiting the general application of rule 6.1, a practitioner who is acting for a legally assisted client in any current proceeding may terminate the practitioner s engagement, upon giving reasonable notice in writing to the client of the practitioner s intention to do so, if (a) the client s grant of legal aid is withdrawn or otherwise terminated; and (b) the client is unable to make satisfactory arrangements for payment of the practitioner s costs which would be incurred if the retainer continued. 17
G. A. Georgiou SC 27 February 2013. 18