A court decision has revealed the fine line between a lawyer acting without fear of favour on behalf of a client, and bringing the profession into disrepute.
The Supreme Court of the Australian Capital Territory considered how offensive, provocative and forthright a lawyer can be before he or she brings the profession into a negative light.
The court, and Chief Justice Higgins and justices Gray and Refshauge, reviewed a decision by the Legal Practitioners Disciplinary Tribunal that David Lander, by statements made in a letter to the chief executive of the ACT Department of Education and Training, was guilty of unsatisfactory professional conduct.
Melbourne barrister Peter Clarke says the court's consideration of the issue, in David Lander v Council of the Law Society of the Australian Capital Territory last month, is a harsh reminder for lawyers who put pen to paper in anger.
Lander had written a letter to the Department saying "your Department has a long
history of failing to communicate at all or to communicate substantively and honestly. This has been documented in hundreds of cases and shows no sign of improvement".
He wrote: "This is consistent as we say with years of malpractice and maladministration by your organisation. It appears that nothing will change that conduct and that the Department bears grudges against people who engage lawyers, particularly competent ones...
"My wife remains a teacher in your system and I ask that no recriminations be taken against her because her husband happens to be a solicitor acting for teachers."
And in further vitriol, Lander wrote: "In my brief encounters with officers of your agency, they have been rude, unhelpful, obsessive and compulsive in relation to their own ego and their own self-importance and otherwise unresponsive."
Melbourne barrister Clarke said the Court had to determine whether the solicitor had a foundation for making the serious allegations, particularly about honesty, malpractice and vindictiveness towards innocent parties. He was writing in an online blog article about the decision.
"In between dealings as between practitioners there is an obligation to avoid offensive and provocative conduct while in dealings with third parties provocative language may be warranted, if there is a reason for it," Clarke said.
The court found the correspondence in question, even if based on untrue assumptions, was warranted as such.
"The decision contains a very comprehensive analysis of the principles governing professional behaviour," said Clarke.