Lawyer Found to have Engaged in Professional Misconduct for Gross Discourtesy to Fellow Practitioner in Email Correspondence
In Council of the Law Society of New South Wales v Sideris [2024] NSWCATOD 3 (5 January 2024), the Civil and Administrative Tribunal of New South Wales – consisting of the President, Armstrong J, Principal Member Suthers and General Member Thomson – found the defendant solicitor, George Sideris, liable for, inter alia, engaging in grossly discourteous conduct – ultimately in a persistent and deliberate fashion – in communication with the opposing solicitor (and that solicitor’s client TSA) in a civil dispute. The case is salutary, not just in respect of solicitors but in respect of all lawyers, including barristers, in their dealings with opposing lawyers or with the court, whether in email correspondence or in exchanges in or outside a court hearing.
Although the Barristers Rule 2011 (Qld) contains no “courtesy” prescription, the same would be comprehended by the following rule:
12. A barrister must not engage in conduct which is:
(a) dishonest or otherwise discreditable to a barrister;
(b) prejudicial to the administration of justice; or
(c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.
The Tribunal in Sideris wrote:
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The Law Society’s disciplinary application
[8] The Law Society’s application dated 13 June 2023 annexes its grounds for application, with particulars including two schedules (Schedules 1 and 2) which list numerous items of correspondence (emails) in chronological order sent by the Solicitor to Mills Oakley, to TSA, or to both Mills Oakley and TSA. Schedules 1 and 2 are set out at Annexures A and B to these reasons for decision.
[9] The Law Society alleges that the Solicitor is guilty of professional misconduct on the following grounds:
(1) Between 1 July 2021 and 13 February 2022, on one or more of the occasions set out in Schedule 1 (whether considered individually or cumulatively), the Solicitor in the course of legal practice, sent correspondence directly to staff and representatives of TSA, a client of another solicitor, namely, Luke Geary, a partner of the law practice known as Mills Oakley, in relation to a dispute between the Solicitor’s client and TSA. ( Ground 1 )
The Law Society alleges that, by the conduct identified in Schedule 1, the Solicitor sent correspondence to the client of another solicitor in breach of r 33 of the Conduct Rules;
(2)Between 23 July 2021 and 17 February 2022, on one or more of the occasions set out in Schedule 2 (whether considered individually or cumulatively), the Solicitor, in the course of legal practice, sent correspondence to Mr Geary, and directly to staff and representatives of TSA, which was discourteous, in relation to a dispute between the Solicitor’s client and TSA. ( Ground 2 )
The Law Society alleges that, by the conduct identified in Schedule 2, the Solicitor sent discourteous correspondence and so engaged in conduct which would justify a finding that he is not a fit and proper person to engage in legal conduct or, alternatively, breached r 4.1.2 of the Conduct Rules.
[10] As to Ground 1, the Law Society seeks the following findings:
(a) that each instance of conduct alleged in Schedule 1 constitutes unsatisfactory professional conduct by virtue of being in breach of r 33 of the Conduct Rules; and
(b) that any combination of the instances the subject of Ground 1 which are found to be unsatisfactory professional conduct by the Tribunal, when considered cumulatively, amounts to professional misconduct by demonstrating a substantial and/or consistent failure to reach or maintain a reasonable standard of competence.
[11] As to Ground 2, the Law Society seeks the following findings:
(a) that, in respect of each instance of conduct alleged in Schedule 2, the Solicitor was not courteous;
(b) that, by reference to any combination of the instances the subject of Ground 2 which are found to be discourteous by the Tribunal, the Solicitor engaged in professional misconduct because, when that conduct is considered cumulatively (in any combination), it justifies a finding that he is not a fit and proper person to engage in legal practice;
(c) further, or in the alternative to (b), that each instance of conduct alleged in Schedule 2 which the Tribunal finds to be discourteous contravened r 4.1.2 of the Conduct Rules and was thereby unsatisfactory professional conduct; and
(d) any combination of the instances the subject of Ground 2 which are found to be unsatisfactory professional conduct by the Tribunal, when considered cumulatively, amounts to professional misconduct by demonstrating a substantial and/or consistent failure to reach or maintain a reasonable standard of competence.
[12] Further or in the alternative, the Law Society seeks findings that any combination of the instances the subject of both grounds which are found to be unsatisfactory professional conduct by the Tribunal, when considered cumulatively, amounts to professional misconduct because:
(a) understood cumulatively, that conduct justifies a finding that the Solicitor is not a fit and proper person to engage in legal practice; and
(b) further or in the alternative to (a), that conduct demonstrates a substantial and/or consistent failure to reach or maintain a reasonable standard of competence.
[13] In response, the Solicitor says that his conduct does not amount to professional misconduct (or unsatisfactory professional conduct) and no disciplinary findings or orders should be made.
Background facts
[14] The Solicitor was admitted to the legal profession in NSW in 1987. He held a practising certificate issued by the Law Society in each year since 13 July 1987 until the end of the practising certificate year on 30 June 2022.
[15] The Solicitor is the son-in-law (or former son-in-law) of Mrs Norma Sim, who, from 5 October 2017, has been a resident in an aged care premises operated by TSA, subject to an accommodation agreement of that date. Under the terms of the agreement, Mrs Sim was required to pay a Refundable Accommodation Deposit (RAD) to TSA in the sum of $750,000.
[16] Before the involvement of lawyers for TSA, the Solicitor was instrumental in negotiating with TSA to have the RAD liability reduced to $100,000 on behalf of Mrs Sim. Having reached that agreement in principle, in or about May 2021 TSA instructed Mr Luke Geary, a partner at Mills Oakley, to act on its behalf in relation to the matter and, in particular, to prepare a written agreement to reflect the terms reached with the Solicitor on behalf of Mrs Sim. On 18 May 2021, Mr Geary sent an email to the Solicitor in which Mr Geary stated that he acted for TSA; that he was in the process of confirming his client’s instructions; and said “Please direct any further correspondence concerning this matter to my office”. On 9 June 2021 Mrs Sim entered into a refund agreement with TSA.
[17] The Solicitor then sought, on behalf of Mrs Sim, to have the amount of the RAD retained by TSA further reduced. TSA continued to instruct Mills Oakley to act on its behalf in relation to the dispute concerning the remaining $100,000. In that regard, a dispute arose between Mrs Sim and TSA in respect of the balance of the RAD (the dispute). The Solicitor acted, to put it neutrally, as Mrs Sim’s representative in the dispute.
[18] In the course of the dispute, the Solicitor engaged in correspondence with representatives of TSA and Mr Geary (and, at times, another solicitor in the employ of Mills Oakley).
[19] As noted, on 18 May 2021, Mr Geary had sent an email to the Solicitor which, relevantly, requested the Solicitor direct any further correspondence regarding the dispute to his office. That request was repeated in increasingly direct terms on 5 July 2021, 8 July 2021, 30 August 2021, 6 September 2021, 19 October 2021 and 29 October 2021.
[20] On 26 October 2021, Mr Geary lodged a complaint with the New South Wales Legal Services Commissioner regarding the Solicitor’s conduct, on behalf of TSA, and enclosing certain correspondence. The Commissioner referred the complaint to the Law Society for assessment, investigation and determination on 27 October 2021.
[21] On 7 December 2021, the Law Society notified the Solicitor of the complaint by letter and invited him to provide submissions. The handling of the complaint followed an appropriate course, whereby the Solicitor was advised of the Law Society’s concerns and was given an opportunity to respond. Subsequently, on 15 December 2022, the Law Society notified the Solicitor of the decision made by its delegate, the Professional Conduct Committee, to initiate and prosecute proceedings against the Solicitor in NCAT pursuant to s 300(1) of the Uniform Law.
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Relevant Conduct Rules
[63] The Conduct Rules provide relevantly as follows:
4 Other fundamental ethical duties
4.1A solicitor must also—
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4.1.2 be honest and courteous in all dealings in the course of legal practice,
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Courtesy in all dealings
[77] The Western Australian Court of Appeal considered the meaning of “courteous” in the context of r 6 of the now-repealed Legal Profession Conduct Rules 2010 (WA) in Legal Profession Complaints Committee v Lourey [2022] WASCA 114 at 173 :
In our opinion, the word ‘courteous’ in r 6(1)(b) of the Conduct Rules takes colour from the context in which it appears. The relevant context is a legal practitioner’s dealings with clients, other practitioners and other persons involved in a matter where the practitioner acts for a client. The word ‘courteous’ in that context conveys politeness, rather than kindness or consideration, in manner or approach. … The manner of expression or approach adopted in the communication, having regard to the relevant subject matter and the nature of any assertions or demands made in the communication, will be relevant in evaluating whether the communication was ‘courteous’ or not within Conduct Rule 6(1)(b).
[78] Offensive and derogatory comments made by a solicitor may amount to professional misconduct: Griffin v Council of the Law Society of New South Wales [2016] NSWCA 364 ( Griffin ) at [106].
[79] In Paric , the practitioner had also sent emails to another solicitor which were discourteous, offensive and/or provocative, in that they contained broad ranging and personal allegations against the other solicitor, alongside comments about his character and fitness to practise. Four emails were also sent to third parties which were critical of the other solicitor. VCAT was satisfied that the conduct in question constituted unsatisfactory professional conduct.
[80] In Griffin , the practitioner, after the dismissal of an application in the Federal Court, had sent a letter to the Judge making serious allegations (including that the Judge had acted vindictively, may not have written the judgment himself, and that the decision had been made “without good faith and with bias”) and requesting that the Judge vary his decision. The NSW Court of Appeal approached the issue of unfounded allegations on the basis that the allegations in question had been made without supporting evidence: at [112]. We adopt that approach in the present case.
[81] On a separate point, the Court held that where a legal practitioner “is accused of professional misconduct by reason of a communication to or about a judicial officer, more is required of the Tribunal than simply to characterise the practitioner’s conduct as “grossly offensive” and asserting that the conduct departs from the standards expected of a solicitor”: at [110]. Thus, the Court characterised the communication as follows:
111.… These allegations necessarily suggested that the Judge breached the most fundamental duties he owed as a judicial officer, acted dishonestly (by passing off a judgment as his own that he had not written), acted in bad faith, and displayed actual bias towards a litigant and vindictiveness to the Solicitor. In addition, the Letter demanded that the Judge alter orders made in open Court and threatened that if his Honour did not do so, he would suffer embarrassment as a result of the Solicitor’s actions.
112. The contents of the Letter must be judged on their face. There is not a shred of evidence advanced in the Letter to support any of the allegations of impropriety made against the Judge. The “discourtesy” and “offensiveness” lay both in the making of scurrilous allegations by the Solicitor about the Judge’s conduct, and the manifest absence of any material that could possibly justify making the allegations in any forum, let alone in a private communication to the Judge. The Letter showed that the Solicitor was prepared to make allegations that the judicial process had been undermined by improper behaviour of the Judge, without any material that could justify any such allegation. Moreover, the Letter was “discourteous” and “offensive” because it implied that the Judge would be prepared to alter costs orders because of a threat that he could be embarrassed by the Solicitor’s “legitimate” actions.
113. In my view, the Tribunal was entitled to find that the Solicitor was guilty of professional misconduct on the basis of the contents of the Letter. …
[82] This requirement applies not only to allegations of discourtesy towards a judge, but more generally to allegations of discourtesy. We think this same reasoning should be applied in respect of the current allegations, and the Tribunal is required to do more than find that the relevant conduct departs from the standards expected of a solicitor. Any findings we make will identify the discourtesy and offensiveness in order to determine whether the allegations of professional misconduct or unsatisfactory professional conduct are made out.
Repeated or consistent conduct
[83] In Clyne v Bar Association (NSW) (1960) 104 CLR 186 at 199 –200; [1960] HCA 40 ( Clyne ), the High Court held that a breach of the rules “designed primarily to regulate the conduct of members of the profession in their relations with one another” is treated seriously, “but would not warrant disbarment — at least unless it were shown to be part of a deliberate and persistent system of conduct.”
[84] The Court of Appeal in Council of the Law Society of New South Wales v Webb [2013] NSWCA 423 ( Webb ) considered the distinction between conduct involving a “substantial” failure to reach or maintain the required standard and conduct which involves a “consistent” failure to do so. Meagher JA (Leeming JA and Simpson J agreeing) held:
22.… The former directs attention to the nature and consequences of the failure, which may be sufficiently serious to raise questions as to the lawyer’s competence and diligence and thereby warrant the description “substantial”. The reference to a “consistent failure” is to ongoing or persisting acts of failing on different occasions to reach or maintain the required standard. The same or similar failures which occur on a series of related occasions and are explained by an overarching error of judgment on the part of the lawyer (which is not itself the or a relevant failure which is the subject of complaint) do not involve a “consistent failure” in the sense in which that expression is used in this definition.
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26.… [I]t is the persistent occurrence of the same or similar failures to reach or maintain a reasonable standard of competence and diligence on separate occasions which gives them the quality of being “consistent”. The fact that they have that quality makes it likely that the explanation for the conduct is a want of fitness or competence rather than a series of casual or uncharacteristic lapses or, as in this case, a single overarching mistake made in the context of related transactions.
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Ground Two — Did the Solicitor send discourteous communications and is the ground made out?
Submissions
The Law Society’s submissions
[169] The Law Society submits that each instance of correspondence set out in Schedule 2, sent variously to Mr Geary and staff and representatives of TSA, was discourteous and plainly inappropriate in that they:
(1) alleged that the recipient had not acted in good faith;
(2) included baseless allegations about the conduct of Mr Geary and/or representatives of TSA in the absence of any material that could justify those allegations;
(3) included comments which were inappropriate, offensive and derogatory; and
(4) included threats to go to the press and commence legal proceedings in an attempt to elicit the desired outcome of having money refunded.
[170] Further, the emails are not what professionals expect from one another, nor what a client might expect to receive from the practitioner on the other side of a matter.
[171] The Law Society emphasises that the discourteous conduct continued in a number of emails over a number of months, and that the correspondence was sent to both Mr Geary and TSA directly. The factors set out in the paragraph above, considered cumulatively, give the Solicitor’s discourteous conduct the character which would justify a finding that he is not a fit and proper person to engage in legal practice and thus constitutes professional misconduct within the meaning of s 297(1)(b) of the Uniform Law.
[172] With respect to s 297(1)(a) of the Uniform Law, the Law Society submits that each instance of conduct engaged in as set out in Schedule 2 contravened r 4.1.2 of the Conduct Rules and thus constituted unsatisfactory professional conduct. The repeated instances demonstrate a “persistent occurrence of the same or similar failures … on separate occasions” (per Webb at [26]) and the language and tone of the correspondence, alongside repetition, give it the nature of harassment and thus the seriousness which “warrant[s] the description ‘substantial’” (per Webb at [22]). On either of these grounds, the Law Society argues that the Solicitor’s conduct in respect of Ground 2, considered cumulatively, constitutes professional misconduct.
[173] Further or in the alternative, the Law Society submits that the Solicitor’s conduct, considered cumulatively, constitutes professional misconduct on either limb in s 297 of the Uniform Law. The Solicitor’s discourtesy is aggravated by the fact that it occurred as part of a general course of conduct in communicating directly with his opponent’s client. As such, the conduct the subject of Ground 2, taken together with the conduct the subject of Ground 1, justifies a finding that the Solicitor is not a fit and proper person to engage in legal practice.
[174] Further or in the alternative, when the Solicitor’s conduct set out in Schedules 1 and 2 is taken together for the purpose of considering his failure to reach the relevant standard, the “persistence” of his conduct and/or its seriousness is even more apparent, and the Tribunal can be satisfied on that basis that his conduct involves a consistent and/or substantial failure to reach or maintain the relevant standard and thus he is guilty of professional misconduct.
The Solicitor’s submissions
[175] The Solicitor conceded in oral submissions that his use of language in some of the correspondence in question was “very strong” and, at times, he was “rather coarse”. However, he submits that he did not act in the course of legal practice, or otherwise as a solicitor, and that at all times he acted only as a son-in-law or (at times) as an attorney. The Solicitor submits that his conduct does not amount to professional misconduct (or unsatisfactory professional conduct)..
Particulars — Ground Two
[176] In respect of the particulars of Ground 2, there is no dispute, and we find, that the Solicitor sent the correspondence particularised in Schedule 2 that is relied upon by the Law Society between 23 July 2021 and 17 February 2022: particular 15. Each such piece of correspondence self-evidently related to the dispute: particular 16.
Was the Solicitor’s correspondence in Schedule 2 not courteous?
[177] We must then acknowledge that the way in which the Law Society has particularised its complaint in respect of Ground 2 differs from how its case was presented and argued. Schedule 2 lists fifty-four items of correspondence (reliance on the last two being later abandoned) and explains the Law Society’s concern about each item of correspondence and why each item was discourteous. The complaint particularises the concerns in respect of using “profanities, offensive and otherwise inappropriate language” in forty-nine of those documents (particular 17(a)) and making “derisive, derogatory and condescending remarks” in twenty-six of them (particular 17(b)).
[178] There is no lack of clarity in the allegations that some of the correspondence was discourteous due to the inclusion of profanities, offensive or otherwise inappropriate language. We accept the Law Society’s submission that relevant documents which contain allegations that the recipients of the correspondence did not act in good faith may be derisive or derogatory. So might baseless allegations of poor conduct. However, the submission that some of the correspondence included “threats to go to the press and commence legal proceedings in an attempt to elicit the desired outcome of having money refunded (Law Society’s submissions lodged 30 August 2023, [67(d)]) was not a particular of the complaint. Therefore, despite such conduct, if proven, potentially breaching r 34 of the Conduct Rules, we will not consider that issue further.
[179] We find that the Solicitor used profanities or otherwise offensive and inappropriate language that was discourteous in the particularised correspondence. For example:
If you think I sound frustrated well you are NOT WRONG. Pissed off I think is the word (Schedule 2, item 1)
So basically I am fed up with your crap so test my patience no more … So you test with me if you wish and pay the consequences or get the Salvation Army — Salvation Army — shit what a farce the name is … do you understand what that would mean to Norma Sim — no because you are caught with your bullshit legal ego and do not care about a sick old lady … Basically i am sick of your shit and all the emails … So for a fucking lousy $100,000 … you want to screw an old lady over . (Schedule 2, item 2)
Luke , let me say nicely — spoke to the elderly lady again a while ago — I am sick of all this delay or should I say SHIT and if I do not get a good response tomorrow — then let’s see what the Salvation Army thinks. An old lady is suffering financially and the old elderly lady is going bankrupt — fuck mate — no respect at all. (Schedule 2, item 5)
And tell the salvation Army ( Salvation Army HAAAAAAAAAAAAAA ) … (Schedule 2, item 8)
I hope not or are you just trying to be a lawyer trying to think you can push people around in this silly ‘I am a lawyer bullshit ‘ (Schedule 2, item 9)
I am over the legal bullshit … Think about all this mate and let’s get over the bullshit and get the job done (Schedule 2, item 14)
So with respect , grow up mate , open your eyes and cut this legal bullshit and let’s common sense prevail . I am very upset and If you want to make my day go ahead with all your legal rubbish . GO AHEAD MAKE MY DAY (Schedule 2, item 16)
If you think I am pissed off — then try me further as I am really pissed off that an old lady can be treated this way by you and TSA. What sort of people are we dealing with here. Yes, I forgot, stupid lawyers that are embroiled in their self-importance. (Schedule 2, item 17)
As to you not wanting to discuss the matter is pathetic and I am concerned about you calling yourself a lawyer . (Schedule 2, item 18)
you can play your childish games but remember we are both lawyers and your senior partners will soon hear about your antics to really crucify an old lady . I suggest you look at yourself and grow up rather than pretend you are independent where really you have a major conflict . You want to complain to the law Society , well let’s see who wins here you pathetic human. Mate I was a lawyer when you were in nappies so I suggest you grow up or we can really have a fight . … Grow up , that is what I say to you . In short I could say f — – k off but I am too much of a gentleman trying to protect a 91 year old that needs help . (Schedule 2, item 48)
[180] Comments to similar effect were included in the correspondence contained in Schedule 2, items 9, 14, 21, 26 and 47; and further than that quoted in Schedule 2, items 2 and 48. In each instance, the relevant aspect of each of those items of correspondence was discourteous.
[181] Further, the Solicitor made assertions that the recipients of his correspondence acted in bad faith; including allegations of poor conduct by Mr Geary or TSA in the particularised correspondence which, on the material before us, are without foundation. Such conduct was discourteous for that reason. For example:
You can now deal with the fallout by intentionally and purposely stopping an old lady from getting some Financial Hardship assistance… You people have no respect for aged people — non (sic) at all and I am surprised at your attitude as a lawyer as you seem to not be able to understand or do not want to understand the situation here. (Schedule 2, item 6)
You had a conflict as you were an ex GC of the Salvation Army but did you declare that — NO — you should have removed yourself but thought only of fees. … you just resisted and I suggest in spite . I have also found out that you have not briefed your client fully but let not go there.” (Schedule 2, item 8)
TSA has the opportunity to help Norma Sim, the way it has helped other people in need but the whole matter has been spiteful and now I have a very sick old lady in need of Financial hardship assistance yet TSA just wants to continue to torture her to the end and just wants her to die. (Schedule 2, item 11)
TSA could have agreed to refund the LOAN MONEY — YES LOAN MONEY THAT SHOULD NOT HAVE BEEN CLASSIFIED AS A RAD but no just wanted to torture the old lady . Why we do not know???? (Schedule 2, item 11)
I am totally surprised with you stooping to the level you have stooped with Law Society complaints. Cheap trick rather than getting a good resolution fir (sic) an old lady. (Schedule 2, item 34)
Why is it you just want to torture her by not reducing the money you are holding … (Schedule 2, item 41)
the lady needs financial hardship assistance and you guys just sit there and let her suffer. Shame on you all (Schedule 2, item 43)
What sort of people are you . The lady is 91 and the way things are going she will die soon and it will be your fault . (Schedule 2, item 45)
Luke , you are playing a game here using your position as a Solicitor to not give the right advice to your client . That is basically negligence if not tantamount to criminal action against an old lady that has been screwed over by the Salvation Army . (Schedule 2, item 47)
[182] Comments to similar effect were included in the correspondence contained in Schedule 2, items 7, 9, 10, 12, 14, 18, 19, 20, 26, 27, 35, 37, 42, 46, 48 and 49 and further than that quoted in Schedule 2, items 8, 11, 43, 45, 47. In each instance, the relevant aspect of each of those items of correspondence was discourteous.
[183] We are also satisfied that the Solicitor otherwise communicated in a manner that was unsuited to professional communication because it was discourteous, in that it was condescending or used otherwise inappropriate language. For example:
Further you or the Salvation Army do anything at all to hurt the nice 91-year-old lady that is in the home and you will deal with me personally. (Schedule 2, item 3)
Luke please do not treat me like a peasant. (Schedule 2, item 4)
Shame on all of you (Schedule 2, item 7)
I do not want to say things that will upset me as a gentleman and you . But you can imagine what I would say to you so lets leave it at that . (Schedule 2, item 8)
Me at my age could not give a stuff about the legal services Commissioner or the Law Society or God as I had a practising certificate when you were not even in diapers and I am a scientist, engineer and lawyer and the most successful of seven children who came out after the war in Europe with only a pair of underpants and no shoes. (Schedule 2, item 9)
I am fed up with the TSA attitude … The attitude is terrible and the old lady is suffering. (Schedule 2, item 12)
My threats have not been bad — on the contrary you have been nasty with the law Society complaints … A bit of decency would go down well . (Schedule 2, item 37)
[184] Comments to similar effect, and which were also discourteous, were included in the correspondence contained in Schedule 2, items 10, 17, 19, 21, 23; and further than that quoted in Schedule 2, items 1, 9. Unfounded suggestions that another solicitor is treating someone “like a peasant” or that they lack requisite knowledge and experience because of their relative youth (see “in diapers”), are expressions of contempt or ridicule. A comment that Mr Geary would have to deal with the Solicitor “personally” can only be read as a threat of action going beyond the expression of Mrs Sim’s lawful rights. Nor is it courteous to send correspondence inviting Mr Geary to guess at the unpleasant things the Solicitor might say would it not upset him “as a gentleman” or to criticise Mr Geary for making what, as we have found, was an entirely legitimate complaint to a regulatory body. The Solicitor’s own views were irrelevant to the outcome Mrs Sim was entitled to agitate for in respect of the dispute, meaning that where he felt “shame” should lie or whether he was “fed up” are simply not issues that should have found their way into the correspondence.
[185] As can be seen from the above, not each aspect of the characterisations attributed to each item of correspondence contained in Schedule 2 by the Law Society were made out in respect of each item of particularised correspondence. Many that were suggested to contain profanities, for example, did not.
[186] Specifically, in respect of Schedule 2, item 25, we find nothing in it meeting any of the Law Society’s concerns. It does not contain allegations of bad faith, derogatory or offensive material. Whilst it does, on one view, contain a threat to Mr Geary that the Solicitor would write to the TSA without authorisation, that is not a particularised concern and, given the weight of our other findings, is of little moment in the overall consideration of the Solicitor’s conduct. It does not warrant further attention.
[187] Similarly, we see nothing discourteous in item 40 of Schedule 2.
Does each instance of discourteous correspondence constitute unsatisfactory professional conduct?
[188] Each instance of conduct above that is within the four corners of the complaint as particularised is a breach of r 4.1.2 of the Conduct Rules, which is capable of amounting to unsatisfactory professional conduct: Conduct Rules, r 2. All but five of the particularised items of correspondence were sent by the Solicitor after Mr Geary wrote to the Solicitor, saying: “I do not think it is appropriate for solicitors to use language of the kind you have used, in professional communications … please ensure your compliance with the Solicitors’ Rules regarding communications between practitioners.” The breaches of the rule after this warning can be characterised as deliberate and wilful. Each instance of conduct “falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer” and is capable of sustaining a finding of unsatisfactory professional conduct: Uniform Law, s 296. Particulars 19(a), (b), (c) and (d) are made out and we make these findings.
Does the Solicitor’s discourteous correspondence found to be unsatisfactory professional conduct, considered cumulatively, amount to professional misconduct?
[189] Unsatisfactory professional conduct is also capable of amounting to professional misconduct where it involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence: Uniform Law, s 297(1)(a). In that regard, the sheer volume of discourteous correspondence spanning the period from 23 July 2021 to 17 February 2022, taken with the highly, and obviously, inappropriate language repeatedly used, warrants the conclusion that the Solicitor’s conduct evidenced by that material was professional misconduct. It represents both a substantial and consistent failure to maintain a reasonable standard of competence. Particulars 19(e) and (f) are thereby made out, and we make these findings.
Did the Solicitor engage in professional misconduct because his discourteous correspondence, considered cumulatively, justifies a finding that he is not a fit and proper person to engage in legal practice?
[190] Having determined that the Solicitor’s conduct constituted professional misconduct under s 297(1)(a) of the Uniform Law, it is unnecessary to decide whether it also falls within s 297(1)(b) of the Uniform Law, which was particular 18. Nor do we need to consider the cumulative effect of those findings and the balance of the particulars.
Finding
[191] We find the Solicitor guilty of professional misconduct in respect of both Ground 1 and Ground 2.
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(emphasis added)
