Unsatisfactory conduct. Response to unrepresented parties
This is a summary of a decision by a Lawyers Standards Committee following referral back to the committee by the Legal Complaints Review Officer. This summary was published in LawTalk 741.
A lawyer who failed to respond to correspondence from an unrepresented party was found guilty of unsatisfactory conduct by a Standards Committee, after the issue was referred back to it by the Legal Complaints Review Officer (LCRO). Due to a number of mitigating factors, the only penalty imposed on the lawyer was a costs order.
The complaint from the unrepresented party – the estranged husband of the lawyer’s client – was in the context of an acrimonious relationship property dispute. There were several other parts to the complaint, including that the lawyer, through the advice he had given his client, had breached a duty of care that he allegedly owed to the husband. The Standards Committee, and the LCRO (on appeal), rejected the “duty of care” argument, the LCRO holding that the lawyer was not required to consider the husband’s interests when advising his client.
The husband complained that the lawyer had been unprofessional in his dealings with him. These included allegations that the tone of the lawyer’s communications with the husband was defamatory, aggressive, bullying and intimidatory, and that the lawyer failed to communicate with the husband at all.
The lawyer’s blunt communications to the husband (which were not made publicly) included statements that the husband was “untrustworthy” and a “bully”, had an “inability to be honest”, and had “stolen” a credit voucher. The Standards Committee found that nothing in this correspondence amounted to unprofessional conduct on the lawyer’s part.
As to the lawyer’s later failure to respond to the husband’s emails, the Standards Committee had initially rejected this complaint. However, on appeal, the LCRO was concerned that the lawyer’s refusal to deal directly with an unrepresented party posed a barrier to justice for that party and a breach of Rule 12 of the Rules of Conduct and Client Care. The LCRO directed that the Standards Committee specifically consider whether the lawyer’s refusal amounted to unsatisfactory conduct.
The LCRO commented that Rule 12 had to be understood in the context of the necessarily conflict-ridden environment in which lawyers practise. In this case, where the husband was in effect the client’s adversary, the obligations of courtesy and respect were modest only and did not require the lawyer to be pleasant or cooperative. Sometimes, the LCRO said, a lawyer’s role will require them to act in ways that the other party may see as obstructive and unhelpful.
Reconsidering the issue, the Standards Committee found that there had been unsatisfactory conduct on the lawyer’s part in that the lawyer had breached Rule 12, which requires lawyers to “conduct dealings with others, including self-represented persons, with integrity, respect, and courtesy”.
The Standards Committee ordered the lawyer to pay $500 costs without imposing any other penalty due to several mitigating factors. These were that in not responding the lawyer was following his client’s instructions, and believed he was bound to do so, and that the lawyer believed the relevant emails from the husband did not, in fact, call for an answer.