“Please Don’t Expect I’ll put up with Crap” – Solicitor Cautioned for Discourtesy to Client
In Amirbeaggi v NSW Legal Services Commissioner [2023] NSWSC 555 (26 May 2023), Brereton JA, sitting in the Common Law Division of the Supreme Court, upon application made by a solicitor, Mr Armirbeaggi for administrative review of a decision of the Legal Services Commissioner (NSW) who issued a caution to the applicant, dismissed the application. Twhile one may well cavil with the imposition of the caution, the decision underscores the need for practitioners – solicitors and barristers – to act with courtesy towards clients and fellow legal practitioners. Brereton JA wrote:
[1] The plaintiff Farshad Amirbeaggi, a solicitor, seeks judicial review under Supreme Court Act 1970 (NSW), s 69, of two decisions of the defendant, the Legal Services Commissioner, made on 13 September 2021, the first being to caution Mr Amirbeaggi (pursuant to Legal Profession Uniform Law 2014 (NSW) (“LPUL”), s 290(2)(a)) for a breach of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (“Solicitors’ Rules”), r 4.1.2 (which relevantly provides that a solicitor must be courteous in all dealings in the course of legal practice), and the second (pursuant to LPUL, s 292) to reduce the legal costs charged by him to the relevant client from $5,005 to $3,000.
Background
[2] On Friday 3 July 2020, Mr Amirbeaggi received a telephone call from Mr Eugene Evgenikos. Mr Evgenikos wished to engage Mr Amirbeaggi’s firm to act for him, on an urgent basis, in respect of the dissolution of a business in which Mr Evgenikos was a partner. At 10:41am that morning, Mr Amirbeaggi received an email from Mr Evgenikos with a bullet-point summary of the matter and enclosing relevant documentation (including a Deed of Dissolution, Amended Deed of Dissolution, Shareholders’ Agreement and Contract) for consideration.
Retainer
[3] Mr Amirbeaggi says that he worked over the weekend of 4 and 5 July 2020 reviewing the documentation provided. On Sunday 5 July at 10:53pm, Mr Evgenikos sent Mr Amirbeaggi an email, asking “how did you go with this?”. On Monday morning 6 July 2020 at 12:17am, Mr Amirbeaggi responded that he had reviewed what had been sent, and identified a number of questions for discussion. He asked Mr Evgenikos to indicate what time suited him for a discussion, stating that he was available at 7:30am, 11:30am or 4:00pm, and that he would send a letter of engagement in the morning.
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Termination
[11] On Wednesday 8 July at 9:50am, Mr Amirbeaggi received a text message from Mr Evgenikos stating “can you please hold fire on my file until we speak? Thanks”. Mr Amirbeaggi almost immediately replied “yes of course. I’m in a conference for the next two hours but can we speak at say 12 noon?”. Mr Evgenikos responded “yes”. Mr Amirbeaggi endeavoured to call him, and sent him a text message at 1:47pm, in order to obtain further instructions but without success.
[12] At 9:22pm, Mr Amirbeaggi received a text message from Mr Evgenikos “hope you had a nice day. Has there been a letter drafted up by any chance?”. Mr Amirbeaggi answered at 9:24pm:
I’ve reviewed it all and was drafting but put it down because of your text above that says hold fire. Do you want me to continue? Can complete it tomorrow. Let me know. And can speak when you are ready.
[13] At 9:25pm, Mr Evgenikos responded:
What % of the letter is done? Was expecting it yesterday
[14] At 9:28pm Mr Amirbeaggi replied:
Im sorry what? I’m busy 20 hours a day Eugene so please don’t expect I’ll put up with crap. I’ll close your file and take it elsewhere. I’m doing you a favour not other way around. I’ll let Harry know.
[15] Mr Evgenikos responded at 9:30pm:
Hi Farshad. Apologies did not mean to rub you up the wrong way.
[16] On Thursday 9 July 2020 at 7:11am, Mr Amirbeaggi’s firm issued a memorandum of fees to Mr Evgenikos in the following terms:
Attendance upon you by telephone to discuss the atter / background (4 units); review of instructing records some 119 pages (28 units); further discussion with you as to next steps / desired outcomes (3 units); further review of emails provided and revisit employment agreement and shareholders agreement to extract areas of demand ie restraints and duties and attendances upon you (30 units);
Amount $4,550.00 plus GST $455.00. Balance Due $5,005.00.
[17] The memorandum was forwarded under cover of an email which stated:
Might we have you kindly confirm by return email, your consent for us to apply the funds we hold in trust on your behalf towards our attached account.
[18] At 9:00pm that evening, Mr Evgenikos sent Mr Amirbeaggi an email, as follows:
Good evening
I am totally bewildered by your response and your subsequent action to particularly in light of our earlier phone conversations which were amicable and pleasant.
During our phone conversations, last Friday and on Monday you asserted to me the following:—
• You don’t like taking clients’ money unnecessarily
• You will have a draft letter to me by Tuesday afternoon or first thing Wednesday morning for discussion before issue
Your response from your text message and your abrupt termination is not consistent with the above.
Your letter of engagement provides for a scope of work as per the image below:—
…
Of the items above you have not completed any of the five components, yet you provide us for half your fee estimate. You have not followed under your engagement letter the 14 day notice period of your decision of ‘Ending the Engagement’ and you have left me abandoned me and forced me to source and brief another solicitor in my matter costing me further time and expense. Accordingly your invoice is disputed in full and you are NOT authorised to release the funds to you.
Also in your letter of engagement you mention the following, ‘we pride ourselves on our client services. If at any time we consider the matter is not progressing satisfactorily towards its objectives, including costs objectives, then we will contact you to agree a course of action’.
You have clearly have not acted under your own service commitment.
Given the above and your unsatisfactory professional conduct, I demand a refund of all monies in the trust account. Please EFT the monies into account …
[19] At 9:12pm, Mr Amirbeaggi answered:
You really are the author of your own misfortune.
I put other client matters aside to give you priority / assist you or a referral from Harry because I value Harry.
You asked me to ‘hold fire’ after I had carried out substantial work, and was in the process of drafting the detailed letter of demand for you as you asked. I rang you just after lunch to discuss no reply. You then message me after 9:00pm with insult. And then instead of acknowledging your rude conduct you send me the nonsense below?
You are welcome to seek cost assessment, lodge complaint with the Legal Services Commissioner, or commence proceedings. Happy to meet whatever complaint you wish to make. Happy to take you on.
[20] Mr Evgenikos responded at 10:00pm:
I am not looking for a fight or, as you put it, ‘take you on’, this is what you do.
There is nothing more for me to add other than the email below which you have arrogantly labelled ‘nonsense’.
I do not want to lodge with the NSW Commissioner nor escalate this matter at this point. All I seek is to have the monies refunded in full. Can you kindly action this request.
[21] Mr Amirbeaggi replied at 10:07pm:
I thought my email was clear. I will not be refunding your money, and will upon expiry of the payment term to the invoice apply it to payment of the invoice.
I’m not in the business of spending a day working for someone not to be paid (simply because they made decisions that caused the end of the engagement).
[22] Mr Evgenikos responded at 10:41pm:
Whether you spent a day or not on this matter it was your sole decision to terminate the engagement.
You were engaged with a scope of works which you did not complete and you prematurely closed the file on.
You are not to apply any funds to the payment of your invoice. You are not authorised to do so.
[23] At 10:58pm, Mr Amirbeaggi rejoined:
I terminated the engagement because of your rudeness. No other reason. I was pleasant and accommodating and actioning your matter with urgency. That is why it was terminated. Because of your behaviour how is that not clear to you? Even at 9:22pm I said to you ‘happy to talk when you are ready. Maybe direct your argumentative-ness towards Natalie and not the solicitor you wished to engage?
Complaint
[24] On 14 July 2020, Mr Evgenikos made a complaint to the Office of the Legal Services Commissioner (“OLSC”). The OLSC notified Mr Amirbeaggi of the complaint on 24 July 2020 and sought his response for the purposes of a preliminary review. The notification summarised the complaint as follows:
Broadly, Mr Evgenikos alleges that you have overcharged him for the amount of work you did in relation to his commercial law matter. He also alleges that you were rude to him by text message and in emails.
As such, Mr Evgenikos has requested a refund of the $5,000 he deposited into your trust account initially in the matter, and he is disputing your lump sum invoice for $5,005 inclusive of GST, dated 9 July 2020.
Further details are enclosed in the complaint materials.
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OLSC’s preliminary view
[29] On 31 March 2021, the OLSC informed Mr Evgenikos of the Commissioner’s preliminary view (that Mr Amirbeaggi had not complied with Rule 4.1.2 of the Solicitors’ Rules, nor with Rule 13.1, and that the fees charged were not fair and reasonable in all the circumstances). Mr Evgenikos responded on 19 April 2021 stating:
I am still at a loss to understand why Mr Amirbeaggi will still receive monies plus just a caution and not a fine and a formal apology, when you identify the violations of his conduct. This is simply a ‘slap on the wrist’.
[30] On 20 April 2021, the OLSC sent Mr Amirbeaggi an email informing him of the Commissioner’s preliminary view, setting out his reasons, and requesting any submissions by 13 April 2021. The letter included the following:
According to the LPUL, this Office may resolve a consumer matter by making a determination under section 290. This Office also has the power to make a binding determination about costs under section 292 where it has been unable to resolve a costs dispute.
[31] After being granted an extension, Mr Amirbeaggi responded on 7 June 2021 with detailed submissions.
Determinations
[32] On 13 September 2021, the OLSC notified Mr Amirbeaggi of the Commissioner’s determinations and reasons for them. The Commissioner expressed himself to be “satisfied that it is fair and reasonable in all the circumstances to resolve this consumer matter by making a determination under section 290 of the LPUL”. He concluded that the text message of 8 July 2020 at 9:28pm was not necessary or appropriate and was in breach of Rule 4.1.2 which requires solicitors to be courteous in all dealings in the course of legal practice, as were the emails sent the following evening. However, he concluded that the conduct did not reach the threshold of unsatisfactory professional conduct, and that it was fair and reasonable in all the circumstances to resolve the matter by making a determination under section 290 of the LPUL. That determination was:
I order pursuant to section 290(2)(a) of the LPUL that you are cautioned.
[33] The letter confirmed that the caution would not be listed publicly on the register of disciplinary action, and that such determinations are not publicly available.
[34] In respect of the costs dispute, the Commissioner made a determination under LPUL s 292, as follows:
That the amount payable as legal costs by Mr Evgenikos to Mr Amirbeaggi in relation to the bill dated 9 July 2020 is $3,000 (GST inclusive).
[35] Again, that determination was accompanied by the reasons for it.
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Unreasonableness?
[67] Ground (c) contends that the imposition of a caution was “erroneous and unreasonable”.
[68] For Mr Amirbeaggi it was argued that, commencing from the duty imposed on the Commissioner by s 316 “in exercising or considering whether or how to exercise any applicable discretions when dealing with a complaint … to act in a fair manner, having regard to the respective interests of the complainant and the respondent and to the public interest”, the Commissioner should, when exercising powers under s 290, act in a manner that is proportionate, and does not involve a substantial disparity between outcomes in respect of comparative conduct by other practitioners. It was submitted that in this case, it was relevant that the comments were not made in a public forum and were not “gratuitously insulting or offensive”, (In distinction to Law Society of NSW re Constantine Karageorge, Solicitors’ Statutory Committee (15 July 1987) that Mr Amirbeaggi firmly believed that he had a reasonable basis for making the comments, and that the comments were made in the course of correspondence with a client regarding the client’s own conduct and discourtesy and unreasonableness. A comparison was sought to be made with Lander v Council of the Law Society of the ACT : (2009) 168 ACTR 32; [2009] ACTSC 117 (“Lander”); in which the solicitor was charged with a breach of a rule equivalent to Rule 4.1.2. While a disciplinary tribunal found him guilty of unsatisfactory professional conduct, stating that “the language of the respondent’s letter of 24 October 2006 contains in several paragraphs discourteous remarks and offensive and provocative language”, the Full Court overturned the decision, holding that although solicitors have an obligation to deal with all persons, whether legal practitioners or the public, with honesty and fairness, the issue of courtesy varies depending on the circumstances: Lander at [43] (Higgins CJ, Gray and Refshauge JJ); that where the conduct of public officials, which is reasonably considered to be rude, unhelpful or any similar characterisation, adversely impacts on a client, it is no breach of the obligation of courtesy to raise the subject with those in authority: Lander at [35]–[36] (Higgins CJ, Gray and Refshauge JJ); and that it is not professional misconduct or unsatisfactory professional conduct for a solicitor to raise such matters where the criticisms are true or fair comment as understood in defamation law: Lander at [53] (Higgins CJ, Gray and Refshauge JJ).
[69] It is of course well established that to impugn an administrative decision on the basis that it was manifestly unreasonable is a large task. Essentially, it involves showing that the decision is one to which no person reasonably exercising the relevant function could have come, or is made in a manner so devoid of plausible justification that no reasonable person could have taken that course: ABT17 v Minister for Immigration & Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [19] (Kiefel CJ, Bell, Gageler and Keane JJ). Far from being of that view, it seems to me that it was plainly open to the Commissioner to be satisfied that Mr Amirbeaggi’s text of 9 July and subsequent correspondence was unnecessarily and inappropriately discourteous. So holding, and imposing a very modest sanction for it, serves the proper purpose of maintaining the reputation of the profession, by “calling out” discourteous behaviour. The submissions for Mr Amirbeaggi proceed largely on the basis that his response, and persistence in it, was a justifiable or at least understandable one in the circumstances. However, it is far from evident that Mr Evgenikos’ query which provoked the initial response was (as contended by Mr Amirbeaggi) itself discourteous or unreasonable, as distinct from purely inquisitive. The provocation — if there was any — was slight, and it was followed immediately by an apology from Mr Evgenikos for any offence caused. In such circumstances, practitioners are expected to show moderation and restraint. I do not accept that the pressures of modern practice are such that it is acceptable for practitioners to be other than courteous to their clients. Mr Amirbeaggi’s seniority and experience is not a mitigating factor in this respect. Given that the caution is not included in the public register, the submission that it will have a lasting adverse effect on his standing or advancement is not a powerful one. It suffices to conclude that it was open to the Commissioner to determine that imposition of a caution was in all the circumstances fair and reasonable.
(emphasis added)
