The Perils of Settling Correspondence

From time to time barristers settle correspondence to be sent by our instructing solicitors.  Sometimes these instructions come at our instigation; sometimes they do not.  Either way, this act of devilling (the New Shorter Oxford includes ‘a literary hack doing what his or her employer takes the credit and payment for’ alongside our profession’s more familiar use of that verb) carries its own perils.¹

Rule 21 of the Legal Profession (Solicitors) Rule 2007 is headed ‘Communications’ and requires that:

‘A solicitor, in all of the solicitor’s dealings with other legal practitioners, must take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that the solicitor’s communications are courteous and that the solicitor avoids offensive or provocative language or conduct.’ 

Also relevant is paragraph 18.01 of the Queensland Law Society’s Solicitor’s Handbook (September 2003 edition), which includes the following comments:

Whilst I am not advocating that the Legal Services Commissioner apply rule 21 overly strictly (lest there be too few solicitors remaining in practice to brief us), in order for correspondence to transgress it is not necessary for it to be as extreme as a notorious example that occurred when I was practising in the UK, in which an English solicitor opened a letter to a Welshman with the insult ‘Dear Taffy Bastard’.²

I recently encountered some correspondence that related to an ex parte order.  The solicitors for the respondent had repeatedly warned the solicitors acting for the applicant that they will be personally liable for costs relating to that order, upon the respondent’s (predicted) inevitable success in the principal proceedings.  It begs the question, in what circumstances could those solicitors be personally liable for having  —  on their client’s instructions  —  briefed counsel to appear before a Judge, filed affidavits in support, and sought an order?  It seems to me that the circumstances would be limited to the following: where the solicitors had made the evidence up, where the solicitors withheld relevant evidence (presumably evidence that the solicitors feared would lead to the order sought being refused), or where the solicitor knew that the client had done those things (which raises questions about the degree of knowledge that would be required), and yet continued to act.

Self-evidently a solicitor (or barrister) found to have engaged in any of the above conduct ought not expect to retain their practising certificate for very much longer.  Thus the allegation made of personal liability for costs in this instance necessarily contained an accusation of very serious professional misconduct.  Without some good evidentiary justification for making that accusation, there seems a real basis for arguing that the correspondence fell foul of rule 21.  

Another basis on which a solicitor can be personally liable for costs is where the solicitor knows that the proceedings that are brought have no prospect of success, or knows that they are being brought for an improper purpose.  It is not my intention to discuss either White Industries v Flower & Hart³ or Williams v Spautz,⁴  but merely to make the point that the same considerations must arise.

A related problem that arises from time to time is the attempt to encourage a suitably co-operative and accommodating resolution of anticipated or current civil proceedings by threatening the institution of criminal proceedings.  Great care must be taken before such a letter is sent (or of course, before such a telephone conversation is had).  

The first risk is that the sender of the letter contravenes section 416(1)(c) of the Criminal Code by being someone who, with intent to gain any property or benefit, causes a person to receive a document that accuses or threatens to accuse a person of committing an indictable offence.  This exposes the unnamed counsel who settled the letter to the risk of being found to have been a party to the attempted extortion.  It is immaterial whether the person in question has in fact committed the act or offence of which they are accused.⁵  Alternatively there is the risk of having breached section 133(1) of the Criminal Code, which (inter alia) prohibits a person from obtaining or attempting to obtain a benefit for any other person upon an agreement or understanding that the person will conceal a crime, abstain from prosecuting a crime, or withhold evidence of a crime.

The second risk is that the sender will be sued for defamation.  The party allegedly defamed will complain about how the letter accusing them of criminal acts was published to everyone who read it in the solicitor’s firm to which it was sent.  I am not going to explore whether, and if so to what extent, the defences of justification (substantial truth)⁶ or qualified privilege⁷ are available.  Whether or not they are, the interference with the efficient conduct of the proceedings resulting from the time and cost of being embroiled in a defamation action is undeniable, and may weaken the client’s resolve to continue to pursue the case.  Indeed the client may be joined on the basis that the solicitor wrote the defamatory letter as the client’s agent; whether or not the client chooses to disavow the authority of the solicitor to write the letter in the first place, the client is unlikely to thank the solicitor for having done so.

The third risk is that the writing of the letter constitutes professional misconduct.  This point was the subject of a carefully reasoned judgment in the Legal Practice Tribunal that was delivered by the Chief Justice earlier this year.⁸  The application against the solicitor was dismissed, however it is a cautionary tale as the Chief Justice’s judgment makes it clear that the solicitor approached the limits of permissible conduct.

The solicitor was acting for a landlord.  He wrote to tenants who had tendered several cheques in payment of rent that were subsequently dishonoured.  The solicitor warned the tenant that in the event of further defaults, the local police would be asked to investigate the circumstances surrounding the writing of the dishonoured cheques; in particular whether the signatory could have had, at the time the cheques were written, any reasonable belief that there were sufficient funds in their bank account.

The Chief Justice noted that, unlike some other jurisdictions, in Queensland there was no distinct rule of professional conduct dealing with the issue.  Nevertheless his Honour concluded that, in light of section 133(1) of the Criminal Code, the ethical rules in other jurisdictions, and some early Queensland cases, ‘a practitioner needs to be very careful not to cross a rather finely drawn line in a situation like this’.⁹  Here the solicitor had not crossed the line.  At [8] the Chief Justice characterised the threat as being ‘to ask the police to investigate the dishonouring of the cheques… It was not actually a threat to launch criminal proceedings were civil satisfaction not made … or to institute a prosecution’.  His Honour noted at [9] that the language used by the solicitor ‘was much more measured’ than in some of the earlier authorities, and that the solicitor had confined himself to stating ‘matters of fact, not embellished with assertions as to legal conclusions or judgment’.  What the solicitor had done was to remind the tenant of the course that the landlord could already have taken, and was minded to take, and that this course (a mere referral of the issue to the police) was one that was open to any aggrieved citizen.¹⁰

The Chief Justice concluded that although the treatment of the tenant was ‘strong’ it was not ‘ethically objectionable’, reiterating that ‘It is important to note that he stopped short at foreshadowing inviting the police service to investigate the possible commission of an offence.  He did not go on actually to threaten to launch a prosecution’.¹¹  His Honour closed with a warning to all who contemplate making threats:

    
Shane Monks

Footnotes

1. My thanks to David North SC for suggesting the title.
2. The online edition of The Times newspaper has an article referring to the incident at: http://business.timesonline.co.uk/tol/business/law/student/article722281.ece
3. (1988) 156 ALR 169; affd (1989) 87 FCR 134.
4. (1992) 174 CLR 509.
5. Section 416(4), Criminal Code.
6. Section 25, Defamation Act 2005 (Qld).
7. Section 30, Defamation Act 2005 (Qld).
8. Legal Services Commissioner v Sing  [2007] LPT 004 per de Jersey CJ.
9. [2007] LPT 004 at [10], [11] and [17].
10. [2007] LPT 004 at [20]-[21].
11. [2007] LPT 004 at [24].
12. [2007] LPT 004 at [30].