Abraham Lincoln had good advice about writing a letter when angry. Write the letter, you will have a good time getting your feelings onto paper and feel the better for it. Leave it overnight. Return the next day, burn the letter and writer another. Good advice , bad for defamation lawyers. It should be mandatory for lawyers who put pen to paper in anger.

There can be a fine line between being forthright and acting without fear or favour on behalf of one’s client and being offensive, provocative or, the using the catch all phrase, bringing the profession into disrepute. The Full Bench of the ACT Supreme Court considered this question in DAVID LANDER v COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY, The court reviewed a decision of the Legal Practitioners Disciplinary Tribunal that David Lander, had by statements made in a letter to the Chief Executive of the ACT Department of Education and Training was guilty of unsatisfactory professional conduct.

The letter (republished in full at par 4) leaves very little need for explanation. The following extracts demonstrate why it prompted a complaint :

Your Department has a long history of failing to communicate at all or to communicate substantively and honestly.

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.

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.

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.

Lander sought to rely on the freedom of expression provisions of the Human Rights Act 2004 (section 16). Section 15 of the Victorian Charter of Rights and Responsibilities Act 2006 is an equivalent provision.

In a very comprehensive and useful decision (extracted in toto at par 23) the Tribunal traversed the relevant authorities. In that regard it is relevant to consider the High Court decision in Clyne v NSW Bar Association. The court endorsed the principles set out by the Tribunal (par 24).

The Court drew a distinction between gratuitously offensive language between practitioners and communication on behalf of a client which may be discourteous and provocative but is done so on a subject which is in the interest of the client (par 36). 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 (pars 46 – 7). The court found the correspondence in question, even if based on some fallacious assumptions, fell into the latter class.

A key issue for the Court was whether the solicitor had a foundation for making the very serious allegations, particularly about honesty, malpractice and vindictiveness towards innocent parties. The Court found that this issue was not addressed by the Tribunal but it should have been. Because of that error and, as a consequence, the findings of unprofessional conduct being based on “an erroneous assumption” it was set aside.

The Court was very circumspect about the role of the Human Rights Act in this environment stating, at par 57:

If the HR Act, s 16(2) has a role to play, it super imposes itself on the Statement of Principles to be found in the Rules and it is to allow lawful criticism by a solicitor of the performance of public officials.

Issues

The decision contains a very comprehensive analysis of the principles governing professional behaviour. Clyne remains the bellwether decision. The applicant was fortunate that the issue of foundation was not the basis for the Tribunal’s decision, or so the Court found. Practitioners should take little comfort from Human Rights Act or the Charter in situations of this nature.