In Chen v Chan  VSCA 2, President Maxwell and Justice of Appeal Redlich dismissed an application by the appellant for an order enjoining the respondent’s solicitor and counsel from acting in the appeal. The applicant alleged that there had been wrongdoing by the respondent’s lawyers at the trial. In fact that was one of the grounds of appeal. It is certainly the case that where a lawyer is to be a witness, he ought not continue to act, especially as an advocate. But their Honours held:
‘9 … The complaints, so far as they relate to the conduct of the trial proceedings, can and will be addressed by this Court in the appeal insofar as the appellants say that the alleged misconduct resulted in either trial Judge not having before him all the necessary evidence, or having wrong evidence or having had false statements made to him.
10 We wish to stress that, if the appellants are intending to argue in the appeal that there were matters of evidence not before either trial Judge which should have been there, or that statements of fact were made which were not true, such that the Court was acting on a false basis, each of those matters will need to be quite specifically identified as part of their preparation for the appeal. …
11 Assuming for the purposes of these reasons that there are points of that kind, they supply no reason for preventing those lawyers from being involved in the appeal. On the contrary, as we pointed out in argument, it will very much assist the appeal court in considering those matters to have present the lawyers in respect of whom those contentions will be made. For example, if it is said that a particular piece of evidence was withheld, then the Court can ask counsel for the respondents whether that is so and, if it is so, why it occurred. The significance or correctness of the appellants’ contention can be examined. The position would be altogether more difficult for everyone concerned if the respondents were represented by counsel who had not been present when these events allegedly occurred. Any other matters of alleged misconduct relating to the trial proceedings are not matters for investigation by this Court, but for investigation by the regulatory authorities – the Bar, the Law Institute and the Legal Services Commissioner.
12 The only circumstance in which this Court would take the quite exceptional step of entertaining an application to remove a lawyer from, or prevent a lawyer from participating in, an appeal proceeding would be where it could be demonstrated there was a real risk that the lawyer’s participation would prevent the applicant party from having a fair hearing of the appeal. Mr Chen, his wife and his daughter have made a number of complaints about dealings between the parties since the appeal was commenced, including complaints about late or non service of documents and alleged withholding of materials until the last minute. We note those allegations but express no view about them.’
The proposition that ‘Any other matters of alleged misconduct relating to the trial proceedings are not matters for investigation by this Court, but for investigation by the regulatory authorities’ interests me. I agree with the proposition, but I strongly suspect that if a complaint were made to the Legal Services Commissioner, she would decline to entertain it because it was ‘before the courts’.
It is appropriate for the Commissioner to look very sceptically at complaints by one member of a litigation camp against a member of an opposing camp, lest she be made party to a complaint made with an improper purpose which would distort the whole dynamic of the litigation.
But so long as the stench of abuse does not accompany a complaint, I think it is in the interests of the maintenance of litigation ethics for complaints to be investigated during the pendency of proceedings which they spring from. If a party fails to give discovery, and there are reasons to believe that a lawyer may have been privy to it, why shouldn’t the Commissioner take a look at that lawyer’s file to see what communications on it reveal about the question?
Some support for that view may be gleaned from Hercules v Phease  2 VR 411. Mr Hercules’s former client complained about his conduct by a complaint under the legislation which then governed lawyers and provided for their discipline. Mr Hercules’s response was to sue the former client for defamation and then to apply, unsuccessfully, for the stay of the investigation pending the determination of the defamation suit, saying the subject matter of the complaint was now sub judice so that for the Law Institute further to consider it would be a contempt of the County Court which was hearing the defamation cases.
Justice Marks, in the Full Court of the Supreme Court, said:
‘The institute then, for no apparent reason, suspended the investigation pending, so it said, the outcome initiated by [Mr Hercules]. I assume that it acted under some misapprehension of its obligations under the Act which suggest, at least at that time, a different course.’
The Full Court found that the trial judge had been quite right to dismiss Mr Hercules’s defamation suit on the basis that the complaint to the Law Institute was the necessary first step antecedent to the laying of charges of misconduct against Mr Hercules, and was therefore attracted the absolute privilege accorded by the law of defamation to statements made in the course of litigation. But what is of interest to this post is the mystification of the Full Court at the conduct of the investigator in failing to investigate a matter because it was ‘before the courts’ (i.e. sub judice).
- More on absolute privilege and lawyers and clients: Hercules v Phease
- States’ and territories’ disciplinary systems summarised by the government
- Procedural fairness: “Murray letters” considered by Victorian Court of Appeal
- Judicial review of decisions to dismiss disciplinary complaints
- Lawyer referred for appearance of complicity in husband client’s fraud on wife