Self-represented solicitor guilty of misconduct for breaching a rule expressed to regulate conduct when acting for a client

A Western Australian disciplinary case, Legal Profession Complaints Committee v CSA [2014] WASAT 57 is interesting in a number of ways. A criminal lawyer was the manager of a strata corporation.  She owned two units and the complainant the third. The complainant affixed an airconditioner to a wall which impeded on a common area.  She sought legal advice.  Her lawyers wrote a letter of demand to the complainant and charged a few thousand dollars.  The complainant did not fix the problem within the 14 days demanded, so the lawyer sued in the Magistrates’ Court.  The case was settled on the basis that the airconditioner would be relocated and the lawyer withdrew the proceeding without seeking costs.  When the complainant sold the third unit, the lawyer demanded that the complainant pay her the few thousand dollars her lawyers had charged her for the advice and the letter of demand.  She did so by a letter of demand drafted for her by another lawyer, though the involvement of this second lawyer only emerged at the disciplinary hearing. When the complainant did not pay up, she sued for them in her personal capacity.  The suit was found to have no legal foundation, but the lawyer said that she mistakenly thought that it did have a legal foundation, and that civil proceedings were not her thing. The case says:

1.  The suit was an abuse of process because there was no legal foundation for suing for the recovery of ‘pre-litigation’ legal costs.

2.  The lawyer’s conduct in threatening to bring and then bringing a suit which was an abuse of process was common law misconduct but was also a breach of a rule which prohibited lawyers from claiming on behalf of a client costs in a letter of demand for recovery of a debt because she was acting for herself in writing the letter (even though no legal letterhead or reference to her status as a lawyer was involved).

3.  There is no defence of honest and reasonable mistake in professional discipline.

4.  It is inappropriate for a disciplinary tribunal to make what the prosecutors described as ‘an incidental finding of dishonesty’ in relation to statements made during the investigation in respect of which no charge had been laid in the disciplinary proceeding.  Any such allegation ought to be the subject of a separate process (though the Tribunal then went ahead and found that the allegation was not made out on the Briginshaw standard anyway).

The conduct rule the lawyer was found to have breached,  r. 18(1), said:

‘A practitioner must not, in a letter of demand for debt written on behalf of a client to another person, claim costs from the other person unless the client has a right to recover those costs.’

The disciplinary tribunal found that the rule had been breached because, when she wrote a letter of demand on her personal letterhead for payment of what she considered to be a debt owing to her personally and unconnected with her practice, she wrote that letter on behalf of a client.  Who was the client?  She was!  This must have come as a surprise to the solicitor, but I suppose the upside is that she can sue herself for negligence and recover the damages from her professional indemnity insurer. WASAT’s reasoning was:

’58 Although the practitioner was acting in a personal capacity, both in issuing the letter of demand and in commencing and prosecuting the Magistrates Court proceeding, she was, in effect, her own ‘client’ for the purposes of these rules. For reasons set out earlier, the practitioner attempted to further her matter against Mr A and Ms A by ‘unfair … means’ (contrary to r 16(1) of the Conduct Rules; the Committee does not allege that the means were ‘dishonest’). For reasons set out earlier, in her letter of demand dated 8 December 2011, the practitioner claimed costs from Mr A and Ms A when she had no right to recover those costs (contrary to r 18(1) of the Conduct Rules). Moreover, in our view, the fundamental intent of r 16(1) and r 18(1) of the Conduct Rules is to ensure that lawyers act fairly and appropriately in relation to legal matters and proceedings in which they are involved. In our view, it would be contrary to the intent of the Conduct Rules for a lawyer to be subject to the stated ethical requirements when acting for another person, but not when acting for themselves. Indeed, as the Tribunal observed in [Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37]] at [28]:

“The case is all the stronger when it is the practitioner’s own case which he [or she] is seeking to advance by such means.”

The case cited as authority for that proposition is another decision of WASAT presided over by a Deputy President, Judge Parry, who also presided over the tribunal in this case, and cites no authority in support.

The lawyer argued that though she now recognised that the case she commenced against the complainant seeking legal costs she paid for the drafting of a letter of demand to the complainant was misconceived, she honestly believed that it had a proper legal foundation at the time she demanded that the complainant pay her those costs.  In fact, she said, the letter of demand had been drafted by another lawyer.  But the Committee said there is no defence of ‘honest and reasonable mistake’.  Neither party drew the Committee’s attention, it would seem, to Legal Services Commissioner v RMB [2010] VCAT 51, the subject of this blog post.

Finally, the Tribunal very appropriately declined to make findings about conduct of the practitioner in the course of the investigation which was not the subject of a charge:

‘Committee’s application for an ‘incidental’ finding of dishonesty

88 The Committee requested an ‘incidental’ finding that the practitioner sought to deliberately mislead it in correspondence which she wrote in relation to the investigation of Mr A’s complaint. The practitioner said in correspondence that the letter of demand dated 8 December 2011 to Mr A and Ms A was ‘drafted by another lawyer’ and ‘prepared after advice’. When the Committee asked the practitioner to provide a copy of the ‘advice’, the practitioner said that it was contained in the penultimate paragraph of the letter from BPC to Mr A and Ms A dated 17 February 2011.

89 In her first witness statement in this proceeding, the practitioner said on two occasions, that she wrote the letter of demand and that she considered the penultimate paragraph of the letter from BPC to Mr A and Ms A to be ‘advice’. However, as noted earlier, in cross ­examination, the practitioner said that the letter of demand was drafted by a lawyer from ‘minor assistance that is offered through Legal Aid’ (T:57.8; 25.03.14). The practitioner maintained that, although the letter of demand was drafted by another lawyer, she wrote it.

90 In our view, it would be inappropriate to determine, as an ‘incidental’ finding in this proceeding, that the practitioner sought to mislead the Committee in its investigation. Such an allegation is a serious and substantive allegation of professional misconduct in its own right. In fairness to the practitioner, if it is alleged that she sought to mislead the Committee in its investigation, then that allegation should be made in a substantive application to the Tribunal which the practitioner can respond to.

91 However, and in any case, we are not comfortably satisfied, in according with the Briginshaw approach, that the practitioner sought to mislead the Committee by her statement in correspondence that the letter of demand was ‘drafted by another lawyer’ and ‘prepared after advice’. The practitioner’s evidence to the Tribunal was that the letter was in fact ‘drafted’ by a lawyer from the ‘minor assistance’ facility but ‘written’ by her. This is generally consistent with her statements in her correspondence with the Committee. It appears that, having obtained a ‘draft’ of the letter from a lawyer at the ‘minor assistance’ facility of Legal Aid, the practitioner then typed it, signed it and sent it to Mr A and Ms A. In that sense, she ‘wrote’ the letter of demand, even though it was ‘drafted’ by another lawyer. Although the penultimate paragraph of [her first lawyers’ letter of demand] is not ‘advice’ that the practitioner had a legal entitlement to demand payment of $2,022 from Mr A and Ms A or that she had an arguable cause of action so as to commence and prosecute proceedings for payment of that amount by them, we do not feel an actual persuasion on the evidence that the practitioner sought to deliberately mislead the Committee into thinking that she had any other ‘advice’ beyond the penultimate paragraph in [her first lawyers’ letter of demand].’

By the way, the bit about suing herself was a joke.

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