The tariff for rudeness: a reprimand

I had to review the penalties for rudeness by lawyers recently, and what I found is that the usual penalty is a reprimand, even for very rude recidivists.  That is not surprising, since a reprimand is a serious professional sanction, not to be equated with a slap over the wrist:  Peeke v Medical Board of Victoria [1994] VicSC 7 at p. 6 (Marks J); Medical Practitioners Board of Victoria v Swieca [2009] VCAT 419 at [52] (a tribunal of three presided over by Deputy President Dwyer). This principle has been reiterated in A Practitioner v The Medical Board of Western Australia [2005] WASC 198 at [62], in LSC v Moore [2010] VCAT 742 at [44] (Member Butcher) and in LSC v Long [2011] VCAT 1164 at [24] (Deputy President Macnamara) and in LSC v Sapountzis [2010] VCAT 1124 (Member Butcher).  Most recently, see VLSC v VH at [27] et seq per Vice President Hampel [2018] VCAT 1498.

The rules

Rule 21 of Victoria’s Professional Conduct and Practice Rules 2005 said:

A practitioner, in all of the practitioner’s dealings with other practitioners, must take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that the practitioner’s communications are courteous and that the practitioner avoids offensive or provocative language or conduct.

Today, r. 4.1 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 provides that ‘A solicitor must also … be honest and courteous in all dealings in the course of legal practice’.

The new rule is narrower in its field of operation. It does not extend to barristers, for example, who are rude in matrimonial cases to which they are self-represented parties.  But it is broader in apparently imposing an absolute prohibition on discourteous conduct as opposed to prohibiting discourtesy of the kind which would impair the integrity and reputation of the legal profession.  It may also be narrower in that it does not prohibit certain species of courteous but offensive or provocative language.

An NT practitioner

A solicitor in the Northern Territory was fined $770 for writing to her client as follows:

‘Do not call me as your call would most certainly not be welcome … you are the most paranoid, pathetic client I have ever encountered … I suggest you get a life as I now understand why the offender in your matter would have felt compelled to slot you. … I otherwise confirm the settlement amount exceeded your expectations … for which you have expressed all the gratitude of a mangy dog with the heart the size of a split pea, with grub in it.’

See Josephine Stone, ‘Civility and Professionalism – Standards of Courtesy’, paper presented by Lynda Muston, Conference of Regulatory Officers, 9-10 November 2006, the source of a number of other decisions referred to below.

 Horoch

In 1992 the Solicitors Board in Victoria reprimanded Victor Horoch in relation to continued offensive and discourteous correspondence to fellow practitioners and the Law Institute and a threat of physical assault toward a fellow practitioner at the Magistrates’ Court: no. 880 of 1992.

Lovitt

In matter R1 of 1997, Western Australia’s Legal Practitioner’s Disciplinary Tribunal reprimanded Colin Lovitt QC and ordered him to pay costs. The practitioner had engaged in exchanges with the bench in a criminal trial which were ‘intemperate, clearly and unfairly reflecting on the objectivity of the bench and in a way which was extremely discourteous and offensive’.

Mr Lovitt was found guilty of similar conduct in matter R7 of 1997 and was again reprimanded and ordered to pay costs.

Lander #1

In the ACT’s Full Court’s 2009 decision in Lander, the penalty given by the disciplinary tribunal was recorded as a fine of $2,500, a reprimand, and some compulsory ethics study: See [2009] ACTSC 117 at [25]. The Tribunal’s decision was set aside on appeal, but without adverse comment in relation to the penalty.

Mericka #1

In the Tribunal’s 2014 decision in Mericka [2014] VCAT 1576, outrageous and unfounded allegations of corruption were made to a Supreme Court judge and the Chief Justice. The practitioner pleaded guilty to two charges of common law misconduct, had apologised to the judges, and had sought psychological counselling.  He was ordered to pay costs of $12,500 and reprimanded, an outcome similar to and justified at [52] by reference to LSC v Turley [2008] LPT 4.

Legal Practitioner M

Legal Practitioner “M” v Council of the Law Society of the ACT [2015] ACTSC 312 records at [44] that the practitioner was cautioned for using discourteous language to administrative staff at the other side’s lawyers’ office and then accusing them, in a conversation with his opponent, of lying about who said what. The breach was said to be of a common law obligation to avoid ‘offensive or provocative language or conduct’, because the equivalent of r. 21 did not strictly apply.  Ultimately the ACT Supreme Court dismissed the complaint on appeal because the litigation it engendered had gone on too long: [186] et seq.

A Victorian family lawyer

In VLSC v KL [2017] VCAT 242, the practitioner, on behalf of her client the wife, made the following allegations in a letter to the husband, without a proper foundation:

‘Drawing your children (first names used) into the family law dispute between yourself and our client by suggesting inappropriate behaviour on the part of our client and attempting to manipulate (the children [first names used]) to “take your side” in such disputes constitutes family violence. Your abusive behaviour presents a danger to (the children [first names used]). It signals to (the children [first names used]) that it is “ok” to be disrespectful to our client only on account of your version of the matrimonial dispute between you and to involve the children in “adult themed issues” which for their age and understanding is beyond them. The danger is that (the children [first names used]) will learn from your abusive behaviour that abuse is part of life for females and becomes even more accepting of such behaviour. There is a danger that your children will come to believe from your abuse of their mother by denigrating her to them constantly that she is a lesser being.

The greatest danger is that (the children [first names used]) will learn from your behaviour that physical and emotional abuse are acceptable ways of dealing with other persons and thus come to share your disability. Such a disability could mar their dealings and relationships with others including those they love, bring them into conflict with the police, the court and the community and result in them being penalised and imprisoned.’

The Commissioner sought a substantial fine, ethics education and a reprimand. The Tribunal ordered a reprimand.

Gullquist

In VLSC v Gullquist [2017] VCAT 819, the practitioner wrote directly to a Magistrate criticising offensively and provocatively the Magistrate’s conduct of his client’s case. The charge was not of breach of r.  21 or any analogue but of breach of a rule which prohibited unilateral communications with the court.  The practitioner was reprimanded, ordered to do additional ethics training, and to obtain supervision in respect of any further proposed correspondence to a judicial officer, and was ordered to pay costs.  Leave to appeal was twice refused.

Mericka #2

In the Tribunal’s 2019 decision in Mericka [2019] VCAT 103, Vice-President Macnamara ordered quarterly psychological treatment and a reprimand, along with costs where the Commissioner claimed costs on a party party basis of $87,000 following a summary judgment application, a long and bitter trial and a contested plea hearing. The practitioner, who was treated as a repeat offender in view of the 2014 decision, asserted that he would change nothing in his behaviour if he had his time over again.

That conduct involved 12 emails to Gadens and others alleging dishonest characteristics of ‘the Gadens scam’, summarised at [95], for which he had no proper basis [114].

Lander #2

Notwithstanding the education provided by his involvement in the 2009 case, Mr Lander continued to make serious allegations against public servants and their associates and a recent finding of unsatisfactory professional conduct for breach of the courtesy rules was confirmed on appeal: Lander v Council of the Law Society of the ACT [2019] ACAT 57. The penalty, undisturbed on appeal, was a fine of $1,500 and a reprimand. The conduct included:

    • writing to a solicitor at Comcare suggesting that it had chosen a medical expert because he was a hired gun with a fixed, ideological view in relation to workplace injuries ([21] et seq);
    • writing to Comcare by a letter with references to Nazi Germany that it ‘is a grubby, dishonourable and dishonest insurer. It does not deserve to have a licence … if it continues to write the garbage that [its decision maker] Ms B was directed to write’ ([26] et seq);
    • multiple further allegations over a lengthy period of corruption, deception and dishonesty for which Mr Lander established no proper basis.

Mr Lander argued that the discourtesy and provocation was justified and is not recorded as having expressed any regret about his statements. Specific deterrence was considered to be necessary.

See also:

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2 Replies to “The tariff for rudeness: a reprimand”

  1. Excellent coverage as always Stephen. I’m aware of the case that provoked your investigation. Do you think the outcome would have been different if a case with similar facts involved the application of the current conduct rule?

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