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$19,500 fine for making complaint against lawyer without adequate evidentiary foundation

January 26th, 2010 · No Comments

A Full Court of the Supreme Court of the Northern Territory delivered judgment in AM v Legal Practitioners Disciplinary Authority [2010] NTSC 02 a week ago. The Darwin lawyer, AM, lodged a complaint with the NT Law Society alleging that a competitor firm, Cridlands, which used to act for her client, had acted in the face of a conflict of duties.  That complaint was dismissed.  The Law Society then turned the lens on the author of the complaint and investigated her for making allegations of serious impropriety without a proper evidentiary foundation.  She was successfully prosecuted and her appeal failed. The Supreme Court confirmed the decision of the Legal Practitioners Disciplinary Tribunal (here and, in relation to penalty, here), finding the lawyer guilty of professional misconduct.  According to the NT News, the lawyer was ordered publicly to apologise to the lawyers about whom the complaint was made, complete professional conduct and ethics courses, and ordered to pay a fine of $19,500.  The costs bill is presumably very high.

The duty which was breached was formulated at [141] as follows:

‘the obligation carried by a legal practitioner is to take care when making serious allegations of impropriety against another on behalf of a client. The obligation arises not only when making allegations or preparing pleadings in a court proceeding but in other situations where the practitioner is protected by privilege and, indeed, in all circumstances, to maintain standards of decency and fairness. The appropriate standard of care is exercised by ensuring that there is evidence upon which allegations might be made and in the light of that evidence by seeking specific instructions in relation to the allegations.’

The complaint purported to be on behalf of the Uniting Church.  Whether the lawyer had the Church’s authority to make the complaint, and its instructions to make certain serious allegations which were included in the complaint was controversial, but in the end, the Supreme Court held that the presumption of regularity which attached to the Church’s seal on the complaint had not been displaced by evidence led by the Disciplinary Authority.  The Disciplinary Tribunal had clearly erred in coming to the opposite conclusion, reversing the onus of proof inadvertently.  But that error did not mean the decision was wrong, and, as noted above, the findings of professional misconduct were confirmed.

The most controversial bits of the solicitor’s complaints, which was, in tone, a sober document, were as follows:

‘Cridlands used confidential and commercially sensitive knowledge and information gained as legal representatives of the Church to draft a ‘Development Deed’ for and on behalf of [another client of the firm] that was prejudicial to the interests of the Church with respect to [a Mitchell St property].’

and

‘Cridlands used and passed on commercially sensitive information relating to bids from prospective anchor tenants received in confidence on behalf of the Church for the CBD Plaza to [the other client] for its development.’

and

‘(a) Cridlands were privy to all lease and allied negotiations between the Church and Woolworths and their competitor Coles in relation to becoming anchor tenants at the CBD Plaza which took place prior to the Development of [Mitchell St].

(b) Cridlands were also aware of all negotiations over the rental rates, periods of discount, fit out arrangements with Specialty Shop Tenants at the CBD Plaza.

(c) Cridlands used the above information to R Is’ advantage by securing Coles as the anchor tenant in the Mitchell Street Development Centre …. This information was commercially sensitive information that allowed R I to negotiate with Coles and obtain a financial advantage. It also allowed R I to maximize the rental it obtained from Coles.

(d) By bringing Coles into the Darwin CBD it created competition between the two supermarkets that resulted in the loss of revenue to the Church which has a rent based also on the Turnover of Woolworths.

(e) Cridlands also used the information to obtain a personal advantage for themselves to negotiate and obtain a commercial lease of office floor space within Mitchell Street Development Centre …

Alternatively

(f) By providing this commercially sensitive information to R I Cridlands were able to obtain a personal advantage for themselves by negotiating and obtaining a commercial lease of office floor space within Mitchell Street Development Centre’.

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Tags: Alleging fraud & misconduct · appeals · Discipline · duty to court · Ethics · litigation ethics · Misconduct