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Solicitor’s correspondence with judge telling him how immature his conduct was doesn’t go down well in disciplinary tribunal

April 9th, 2016 · No Comments

Update, 5 October 2016: this decision is under appeal.  See this post.

Original post: In Council of the Law Society of NSW v MAG [2016] NSWCATOD 40, a Sydney solicitor was disciplined for writing a private letter of complaint to a Federal Court judge the day after a decision was handed down, adversely to his client in favour of the Tax Man.  The next day he wrote to the trial judge a letter not copied to the other side which commenced:

‘As solicitor for the Applicant in this matter, I have serious concerns about your conduct and decision in this matter. These are:

1. The somewhat immature and inappropriate comments you made to me …’

The solicitor had had a career in theatre before he took up law, and worked for the theatrically named The People’s Solicitors, of Penrith in Sydney’s west where Jeff Shaw QC worked for four years after his career on the bench of the Supreme Court ended prematurely.  The letter continued, after further criticisms:

‘On that basis, notwithstanding that I consider that our client has grounds to appeal your decision -and that I consider that your conduct in this matter is questionable and further that the Australian public and democratic values require and deserve a higher standard of decision making in regard to reviewing decisions of political officers and their agents than that evinced by your reasons, I consider that many of the points raised above indicate that your decision was likely made without good faith and with bias. On that basis, in reliance upon r 39.041 consider that I should extend you the courtesy of varying your judgement before it is entered and before I submit it to appeal.’

At his disciplinary trial, which followed an investigation prompted by the referral of the letter to the Council of the Law Society, the solicitor explained that he had written the letter  “out of concern for the integrity of and respect for the Court and the administration of justice which is a lawyers [sic.] highest duty”.   During the investigation, the solicitor lodged a retaliatory disciplinary complaint against the judge’s associate.  The letter was rude, he acknowledged, but it was not grossly discourteous, so the charge should fail.  He sought to bring in the Attorneys-General of the Commonwealth, NSW and Victoria under s. 78B of the Constitution.

The disciplinary tribunal was unimpressed, and sent him off to an ethics re-education camp:

’28. In our opinion the terms of the Solicitor’s letter go far beyond a mere breach of etiquette. We would characterise them as grossly offensive. Whether they amounted to professional misconduct is a matter of judgment which we approach taking into account that solicitors as officers of the Court are required to uphold the law and its institutions. This includes in our view a duty to exhibit appropriate respect for judicial officers and their decisions not for any personal benefit but out of regard for the institutions they represent. If it were not so public confidence in those institutions may be undermined.’

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Tags: common law · Discipline · Ethics · Judges · litigation ethics · Misconduct