“Pull the Criminal Complaint and We Can Settle the Civil Claim” Constitutes Professional Misconduct by a Lawyer

In Legal Professional Board of Tasmania v W [2023] TASFC 1 (17 March 2023), the Full Court of the Supreme Court of Tasmania addressed the character of a solicitor’s conduct in advising the opposing solicitor that if the opposing client withdrew a criminal complaint against his client then a matrimonial dispute between the clients would be settled for a particular sum.  Estcourt J – with whom Jago J and Porter AJ agreed – wrote that he did “not have the slightest doubt that it is professional misconduct”, not just unprofessional conduct, to so do. 

The Full Court considered Tasmanian analogues of the Legal Profession Act 2007 (Qld), namely:

418  Meaning of unsatisfactory professional conduct

Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

419  Meaning of professional misconduct

(1)  Professional misconduct includes—

(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2)  For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.

420  Conduct capable of constituting unsatisfactory professional conduct or professional misconduct

(1)  The following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct—

(a) conduct consisting of a contravention of a relevant law, whether the conduct happened before or after the commencement of this section;

Note—

Under the Acts Interpretation Act 1954, section 7, and the Statutory Instruments Act 1992, section 7, a contravention in relation to this Act would include a contravention of a regulation or legal profession rules and a contravention in relation to a previous Act would include a contravention of a legal profession rule under the Legal Profession Act 2004.

(b) charging of excessive legal costs in connection with the practice of law;

(c) conduct for which there is a conviction for—

(i) a serious offence; or

(ii) a tax offence; or

(iii) an offence involving dishonesty;

(d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration;

(e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act;

(f) conduct of an Australian legal practitioner in failing to comply with an order of a disciplinary body made under this Act or an order of a corresponding disciplinary body made under a corresponding law, including a failure to pay wholly or partly a fine imposed under this Act or a corresponding law;

(g) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law.

(2) Also, conduct that happened before the commencement of this subsection that, at the time it happened, consisted of a contravention of a relevant law or a corresponding law is capable of constituting unsatisfactory professional conduct or professional misconduct.

(3) This section does not limit section 418 or 419.

…

Schedule 2 Dictionary

…

serious offence means an offence whether committed in or outside this jurisdiction that is—

(a) an indictable offence against a law of the Commonwealth or any jurisdiction, whether or not the offence is or may be dealt with summarily; or

(b) an offence against a law of another jurisdiction that would be an indictable offence against a law of this jurisdiction if committed in this jurisdiction, whether or not the offence could be dealt with summarily if committed in this jurisdiction; or

(c) an offence against a law of a foreign country that would be an indictable offence against a law of the Commonwealth or this jurisdiction if committed in this jurisdiction, whether or not the offence could be dealt with summarily if committed in this jurisdiction.

tax offence means an offence under the Taxation Administration Act 1953 (Cwlth), whether committed in or outside this jurisdiction.

Justice Estcourt wrote:

1. I do not have the slightest doubt that it is professional misconduct for a lawyer to offer to settle a client’s dispute with another person on the condition that the other person withdraw a criminal complaint that person has made against the client and which is pending before a court.
2. That is what occurred in the present case, however the learned primary judge, Geason J, found that the conduct amounted only to unsatisfactory professional conduct.
3. In this appeal the appellant challenges the finding and consequential declaration of unprofessional conduct but does not seek to disturb the other orders made by his Honour.
4. In February 2018, a client of the respondent was charged with two counts of common assault against his former wife after she had made complaints to Tasmania Police alleging that the respondent had assaulted her. She had taken out a police family violence order against the client for her protection.
5. On 9 March 2018 the client wrote to the complainant, through the respondent, offering to settle their matrimonial property dispute on terms which included that “all legal pursuits and accusations cease including Tas Police. All matters are then resolved, finalised”.
6. On 19 March 2018 the client was charged with the crime of perverting justice in breach of s 105 of the Criminal Code Act 1924. The respondent appeared on behalf of his client in the Burnie Magistrates Court in respect of that matter.
7. All of that notwithstanding, subsequently, on 13 April 2018 and 31 May 2018, the respondent himself wrote to the lawyer acting for the client’s former wife conveying an offer to settle the matrimonial property dispute between the parties on terms expressed to be conditional upon the withdrawal by the former wife of the complaints she had made to Tasmania Police against his client.
8. Relevantly, the terms “unsatisfactory professional conduct”, and “professional misconduct” are defined in ss 420 and 421 of the Legal Profession Act 2007 (the Act) as follows:

420 Unsatisfactory professional conduct

For the purposes of this Act –

unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

421 Professional misconduct

(1) For the purposes of this Act –

professional misconduct includes –

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.”

Section 422 of the Act identifies types of conduct caught by these concepts:

“422 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct

(1) Without limiting section 420 or 421, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct:

(a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules;…

(emphasis added)

9. In essence, in response to an investigation into his conduct by the appellant, the respondent’s explanation was that he was bound by his client’s instructions and those instructions were that the accusations made by his former wife were false.
10. Such an explanation is no answer to the appellant’s assertion of professional misconduct. In my view, in writing as he did, at the very least, the respondent was guilty of professional misconduct in the form of “unsatisfactory professional conduct …, where the conduct involves a substantial … failure to reach or maintain a reasonable standard of competence and diligence” (Emphasis added), within the meaning of s 421(a) of the Act. I reject the respondent’s submission that his failure was not substantial.
11. Such a conclusion involves an evaluative exercise, however to my mind the gravity of the attempt to have charges pending before a court withdrawn or undermined justifies a conclusion that the conduct amounts to “substantial failure to reach or maintain a reasonable standard of competence”. Whatever his client’s instructions were and no matter what his belief in those instructions was, the respondent’s conduct had a tendency to prevent or defeat the due course of justice or the administration of the law. I reject the respondent’s submissions to the contrary, notwithstanding that the charge of perverting the course of justice against the respondent’s client was not proceeded with, and the charges against him were dismissed or discontinued.
12. I also reject the submission made by the respondent that “[t]he Appeal submissions overlook the central element to the practitioners conduct which was that the practitioner failed to realise that there was a limit on the application of Section 131 of the Evidence Act 2001“, (exclusion of evidence of settlement negotiations). Whether or not the respondent believed that evidence of his own or his client’s offers of settlement conditioned upon the withdrawal of the complaints were inadmissible in evidence is hardly to the point. It was the making of those offers, so conditioned, that had a tendency to prevent or defeat the course of justice or the administration of the law.
13. Nor does it matter that the respondent’s conduct would not have amounted to the commission of a crime because of the lack of the required intention to prevent or defeat justice or the administration of the law. The standard of competence and diligence required of a legal practitioner is to be evaluated on the basis of what a reasonable member of the public would be entitled to expect of the practitioner. The offers, conditioned as they were, fell substantially short of the required standard, whether or not they amounted to a crime.
14. In reaching that evaluative conclusion I respectfully adopt the approach of Brett J in Legal Profession Board of Tasmania v Barclay [2022] TASSC 14, in which case his Honour said at [11]:

“Although the matter was not the subject of extensive argument before me, I think it is clear that these statutory definitions provide the relevant basis upon which the Court must characterise the practitioner’s conduct. It is clear, in my view, that the definitions are intended to replace any notions of what amounts to unsatisfactory professional conduct or professional misconduct, formulated under the common law and statutory schemes which are no longer in effect. Under the legislative definitions, the first step is to determine whether the conduct amounts to unsatisfactory professional conduct. This involves an evaluative assessment of the conduct, measured against the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The second step is to determine whether the unsatisfactory professional conduct amounts to professional misconduct. In making this determination, an assessment must be made as to whether the conduct involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence. It is the finding that the relevant failure has been substantial or consistent which is critical to this determination. A further observation which can be made about the legislative scheme incorporated into this legislation is that the standard of competence and diligence required of a legal practitioner is to be evaluated on the basis of what a reasonable member of the public would be entitled to expect of the practitioner. I think that this results in an important shift of emphasis away from the formulation which preceded this legislation, which depended upon what practitioners of good repute and competency would reasonably consider to be conduct which could be described as disgraceful or dishonourable. See for example, A Legal Practitioner v Law Society of Tasmania [2005] TASSC 28, 13 Tas R 448. This change of emphasis in favour of the expectation of a reasonable member of the public, as opposed to other practitioners, is, in my view, entirely consistent with the primary purpose of disciplinary proceedings, which is the ‘protection of the public, the preservation of the reputation of the legal profession and the proper administration of justice’. See my comments at [41] of Legal Profession Board of Tasmania v Lester [2021] TASSC 41. Of course, conduct which falls within those earlier definitions may also inform this Court’s exercise of its inherent jurisdiction, which is preserved by s 510 of the Act, but this is in addition to the statutory definitions, and not instead of them, see Legal Profession Board of Tasmania v Kitto [2019] TASSC 39, 31 Tas R 91, per Blow CJ at [12].”

15. The learned primary judge reached the view that s 421 was not engaged because “the second limb of s 421 is not satisfied”. In so concluding his Honour accepted a submission made to him by senior counsel for the respondent, Mr McTaggart SC. That is to say that his Honour thought that ss 421(a) and (b) were to be read conjunctively and that professional misconduct could only be found if the conduct justified a finding that “the practitioner is not a fit and proper person to engage in legal practice”. That is not so.
16. If it were so then there could never be a case in which conduct of a lawyer occurring otherwise than in connection with the practice of law could justify a finding of professional misconduct. If the two paragraphs “must be read conjunctively then personal misconduct not occurring in connection with the practice of law could not be professional misconduct” (Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 per Basten and Meagher JJA at [8] (Emphasis added).
17. This point was conceded by the respondent on the hearing of the appeal through his counsel Mr McTaggart.
18. I reject the submissions made by Mr McTaggart that the judgment of Meagher JA in Council of the Law Society of New South Wales v Webb [2013] NSWCA 423 at [22] should be taken as authority for the proposition that consideration of the concept of substantiality in s 421(a) of the Act requires consideration of the questions of the practitioner’s diligence and competence and in those respects his fitness to continue in practice. Such considerations are squarely within the terms of the alternate route to professional misconduct in s 421(b).
19. Even if the consideration contended for by Mr McTaggart was required, I am of the view that the practitioner’s conduct was sufficiently serious as to in fact raise questions of his competence and diligence and in that respect his fitness to practice. Mr McTaggart did not go so far as to argue that a practitioner must be found to be unfit to continue in practice before a finding of professional misconduct may be made against him or her, only that the learned primary judge ought to have considered the question. Any failure by the learned primary judge to consider this issue was not a determinative error, in all of the circumstances of the respondent’s conduct and his explanations for that conduct.
20. I would uphold the appeal and set aside the declaration that the respondent is guilty of unprofessional conduct and substitute a declaration that the respondent is guilty of professional misconduct.
21. To the extent that it might be necessary to now consider the appropriateness of the learned primary judges punitive orders, the Court is satisfied that there is no need to disturb them.

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(emphasis added)

By parity of reasoning, the same outcome would obtain for a barrister advising a solicitor to adopt such course, or communicating such instructions to an opponent.

Query whether if – hypothetically – the offer made in the above case was the subject of recommendation for acceptance by the opposing solicitor or barrister – whether or not that advice was accepted – or  communication of acceptance, that too would constitute professional (or lesser) misconduct.  Surely, the same “tendency” referred to in Estcourt J’s reasons at [11] is entailed, albeit perhaps with less comparative  culpability. 

Views – with reasoning – from the profession are sought by Hearsay apropos of this query, and the above case ratio. The best response – judged by the editor, and to be published anonymously in Hearsay Issue 93 –will attract as a prize a very good bottle of Australian wine from the editor’s cellar.