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Ethics: My client the bully

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Cite as: (2009) 83(02) LIJ, p.76

Client bullying can test a lawyer’s mettle.

There is a longstanding assumption in the law that the relationship between lawyer and client is characterised by imbalance.

The lawyer, it is assumed, is in a position of power or dominance over the client. This assumption led the law, from early times, to view the lawyer-client relationship as giving rise to fiduciary duties which, to this day, are construed with strictness.

It also triggered the presumption of undue influence in respect of lawyer-client dealings and informed the courts’ inherent jurisdiction to set aside costs agreements for unfairness or unreasonableness.

Yet the modern legal environment has witnessed the rise of the multinational, a client with considerable clout, in what has become known as the “legal services market”.

When coupled with the application of the tenets of competition policy to the legal profession, changes in community attitudes to professionals and various avenues designed to foster client empowerment, it can no longer be assumed that the power imbalance between lawyer and client runs the one way. It is perhaps unsurprising that the foregoing has translated, at least in some instances, to lawyers so closely aligning themselves with client demands as to undermine the independence traditionally associated with the lawyer-client relationship.

This in turn can manifest itself not merely in disservice to the client who, notwithstanding their demands, the law has always considered to be best served by independent advice, but in unethical or even illegal conduct by lawyers.

It follows that lawyers must remain alert to the dangers of too closely identifying with their client.

This explains why it is generally speaking not a good practice to act for persons with whom the lawyer has an emotional connection, such as family members.

Disciplinary decisions reveal examples of lawyers who have acted for their spouses and, whether blinded by emotional attachment to their client or for some other reason, have behaved unethically.1

There are no doubt other occasions where unethical conduct has been motivated by the pressure of keeping a client, whether the pressure be financial (reaching budget) or reputational.

Some 20 years or so ago, for instance, a Tasmanian legal practitioner was struck from the roll and imprisoned as a result of yielding to client demands to accelerate the settlement of a property transaction by “temporarily” using other clients’ funds to satisfy the client’s demands.2

Also, personal costs orders loom large against lawyers who fail to exercise a moderating influence on their clients’ excessive zeal in litigating.3

In some circumstances, the very personality of a client can test the lawyer’s mettle. Indeed, anecdotal reports indicate that clients are on the whole becoming more rather than less demanding. Moreover, in a time when “bullying”, whether in the schoolyard or in the workplace, has surfaced as a major societal issue, the prospect of clients seeking to “bully” their lawyer is hardly unrealistic.

The recent experience of a New South Wales solicitor, who had misled his client and a government department and fabricated a document, under pressure from a client’s relative, highlights the point.4

The facts revealed that the client’s brother bullied and intimidated the solicitor in seeking to secure a positive outcome for the client’s visa application, and that his communications with the solicitor heightened in aggression with the passage of time.

Evidence from the solicitor’s treating psychiatrist indicated that the client’s brother became so “nagging, angry, demanding, repetitive and insistent” that the solicitor “felt defenceless, vulnerable, helpless and manipulated”.5

That the tribunal imposed the “lenient” sanction of a public reprimand coupled with a fine – largely influenced by the bullying and intimidation to which the solicitor was subjected, and its satisfaction that the solicitor understood his susceptibility to bullying – should not be seen as downplaying the seriousness of the solicitor’s conduct.

More to the point, the personality of some practitioners may be ill suited to legal practice, or at least certain forms of legal practice. These practitioners may struggle to summon the fortitude needed to stand up to demanding clients (or associates of clients). Although this courage may be developed through time, and sometimes even with professional assistance, it is not always inherent.

Taking into account the other financial, management and liability challenges in legal practice, which are intensifying rather than subsiding, the modern practice of law is not for the weak-willed or faint-hearted.

GINO DAL PONT is Professor, Faculty of Law, University of Tasmania.

1. See, for example, Guss v Law Institute of Victoria Ltd [2006] VSCA 88; Legal Services Commissioner v Bradshaw [2008] LPT 9.

2. As to the criminal proceedings see Scott v The Queen (CCA(Tas), 18 December 1986, unreported).

3. See, for example, Wentworth v Rogers [1999] NSWCA 403 (where the lawyer was described as the client’s “lackey”, having been found to have done the client’s bidding for her, allowing the client to conduct the various applications before the court in whatever way she chose).

4. Council of the Law Society of New South Wales v Russell [2008] NSWADT 268.

5. Note 4 above, at [14].


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