When a dispute gets heated, litigants often want a ferocious advocate. Blood. Vengeance. Victory! And they pick their champion solicitors armed to the teeth with nothing more than a photocopier and a phone.
Victorian Legal Services Commissioner v Alan James McDonald  VSCA 18
Cudgel advocacy might seem to be a good idea at the time, but it won’t be a surprise to hear that it often backfires. It aggravates personal differences and negotiating positions can move further apart making resolution impossible. Courtrooms are littered with hard fought cases where legal costs have escalated beyond the value of the dispute. The legal machinery strips the carcass bare.
The other problem is that lawyers aren’t permitted to be offensive. (Boring and expensive? No problem!) Solicitors are held to a high standard of conduct in their professional life to ensure that, where possible, matters can be resolved politely and efficiently.
The sanction handed to a solicitor recently neatly demonstrates the problem.
Your favourite client’s dispute
You have been acting for your favourite client in what could be described as a robust breach of contract dispute. Your client’s IT system continually broke down, causing significant business interruption, and the service providers appeared at a loss to know how to fix it. As your client described it, “it was always on the fritz and these bozos had no idea how to get it working and we lost heaps of work done on a really important tender and were unable to submit it in time. I want you to sue these [expletive deleted].”
Based on these instructions, your Gen-Y colleague has written a most excellent letter of demand. The response was both tepid and turgid to say the least. In a last-ditch effort to head off the cost and expense of legal proceedings, your Gen-Y colleague did the sensible thing and engaged the IT provider’s solicitor on the phone. It was here that the problems started. Your Gen-Y colleague recounted:
I said: “We have instructions to issue proceedings in the event that you do not respond to our client’s offer of settlement.”
She said: “We will only talk to you when your client has issued proceedings and the court requires us to engage with you formally through a mediation. The offer is presently rejected.”
Being meticulously trained, your Gen-Y colleague, with the assistance of a first-class file note, confirmed what was said in a brief responding letter. The solicitor on the other side wrote back and advised that her recollection of the conversation was different and in the process accused your Gen-Y colleague of telling a lie in an effort to obtain a favourable result and that she and her client were not going to be bullied by such intemperate conduct.
Your Gen-Y colleague is upset and your favourite client, on being given an update, is even more ropable than before. If that were possible. While repeating that he wanted to sue them for all they were worth and then some, your favourite client asks a very relevant question, namely what to do.
Oil on troubled waters
You counsel calm. Legal practice, particularly a litigation practice, is a vigorous environment with frequent differences of opinion. You suggest a two-pronged strategy; to the extent your Gen-Y colleague’s professional reputation and honesty was being called into question, those issues would be referred to the Managing Partner of the firm to provide a response and a response removed from the solicitors handling the dispute. Secondly, you and your Gen-Y colleague would focus on the issues in dispute, namely the non-functioning IT system, or the breach of an essential term of the contract, and only those issues.
The last thing that a client wants is for your lawyer to inflame a dispute into a personal vendetta between legal nerds, where the client is likely to foot the bill.
You proceed to tell your favourite client of a recent case where there was a difference of opinion over what was said during a telephone conversation. A senior legal practitioner (McDonald) believed that an opposing junior solicitor was being dishonest, resulting in McDonald accusing the opposing solicitor of being ‘fundamentally dishonest’ in writing. This ultimately led to a complaint and two charges of unprofessional conduct being made against McDonald. These charges were found to be proven, but only after two hearings before the Victorian Civil and Administrative Tribunal, two appeals to the Supreme Court of Victoria and an appeal to the Court of Appeal.
“No kidding?” says your favourite client. “So how much was at stake?” You pause briefly before noting that McDonald’s client wanted $25,000 and in response the other party offered $500. The actual dispute, and not the professional conduct issues, settled for $7,500. “But, that’s 15 times what one party was prepared to pay and around one third of what the bloke making the accusations wanted.” Exactly you tell your favourite client and precisely why the ethical issues should be separated from the legal issues in dispute.
McDonald’s case discusses the extent to which a legal practitioner may permissibly engage in communications which are discourteous and that involve offensive or provocative language when balanced against the legitimate pursuit of a client’s interests. This issue was relevant to the preservation of the integrity and reputation of the legal profession thereby supporting public confidence in the legal system. You tell your favourite client that practitioners have a fundamental ethical obligation, whereby they have a professional duty to maintain courtesy and respect when dealing with other parties or members of the public. In McDonald’s case, the descriptive language going to another practitioner’s honesty was found to have crossed a line.
Your favourite client pauses for a moment. “But, we can still sue those misguided computer geeks right…???”
 Victorian Legal Services Commissioner v Alan James McDonald  VSCA 18.
 As above .
Ben has considerable experience in the areas of commercial litigation and dispute resolution.