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Making allegations against fellow practitioners

April 13th, 2013 · 2 Comments

I have posted before about the Darwin solicitor whose disciplinary complaint against a fellow practitioner resulted in her being fined $19,500 for making that complaint without a proper factual foundation.  I have just come across another case in which a female solicitor was disciplined for her intemperate allegations against another lawyer, despite having had an honest belief that she had a reasonable basis for making them: Legal Profession Complaints Committee v in de Braekt [2011] WASAT 1.  She was recently struck off: [2013] WASC 124.

A panel provided over by a judge of Supreme Court of Western Australia and President of WASAT, Justice John Cheney, said in the earlier decision:

‘107 Legal practitioners should be slow to make allegations of impropriety against other legal practitioners or their client. Such allegations should not be made unless there is a reasonable basis upon which to make them. The same can be said of allegations of abuse of process. It is apparent that the impropriety asserted by Ms in de Braekt was based upon her view that, having regard to the various matters upon which she relied, the winding up proceedings amounted to an abuse of process.’

I am looking at another matter at the moment in which a complaint has been made to a Legal Services Commissioner by one of the lawyers for one party to extant litigation against one of the other party’s lawyers, in relation to conduct which is itself the subject of the civil proceedings and which is in fact said to have generated the information on which those proceedings are founded.  Even if the disciplinary complaint is stayed pending the exhaustion of appeals from the civil proceedings, it seems to me that the propriety of making a complaint in such circumstances is doubtful.  Does anyone have any views, or — better — authority on the question?

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Tags: Abuse of process · Ethics · litigation ethics