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Ethics: Self-restraint in the line of duty

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Cite as: September 2015 89 (9) LIJ, p.70

Where mutual respect is lacking the lawyer's fundamental duty of courtesy may be sorely tested.

Snapshot
  • Courtesy and respect for clients is a fundamental ethical duty of lawyers.
  • Maintaining lawyer-client mutual courtesy and respect in the face of dif ficult or unreasonable clients is challenging.
  • Yet lawyers, as part of their ethical obligations, must suppress the natural instinct to respond in kind to discourteous, disrespectful or difficult clients.
  • Professional rules identify, as a fundamental ethical duty, that lawyers be “courteous in all dealings in the course of legal practice”.1 Translated to lawyer-client dealings, treating clients courteously, and with attendant respect, is arguably easiest vis-a-vis clients who exhibit corresponding courtesy and respect, and whose words and actions are punctuated by both reasonableness and deference to the lawyer’s advice. In a utopian world of legal practice, populated by model clients, courtesy and respect is hardly too much to ask of lawyers.

    Unfortunately, legal practice is not conducted in a utopian environment. While courtesy and respect ordinarily breed in an atmosphere of mutuality, human nature struggles with courtesy and respect where that mutuality is lacking. In this latter scenario the lawyer’s fundamental duty of courtesy may be sorely tested. After all, like other human beings, a lawyer’s natural response to a client who is discourteous, disrespectful or unreasonable in relation to the lawyer is one very much “tit for tat”.

    Yet the worth of ethical standards is precisely their call for conduct of a standard exceeding that trodden by the crowd. It is difficult for the legal profession to profess a higher ethical ground if the standards it requires of its own members are no more stringent than those expected of any supplier of services. Moreover, as lawyers hold a (near) monopoly on access to the legal system, and relations between lawyer and client are often characterised in power-dependency terms, the inherent nature of that relation itself calls for a degree of lawyer self-restraint.

    The need for self-restraint surfaces most commonly on those occasions where, from some objective standpoint, a lawyer may well feel justified in responding in kind to client discourtesy, disrespect or unreasonableness. It may well be natural for lawyers to respond to difficult clients by going on the defensive, to the extent even of engaging in abusive language. That this may be natural hardly makes it ethical. In a recent tribunal decision, a lawyer who corresponded with difficult clients in a discourteous and abusive manner was found to have committed professional misconduct.2

    As few welcome ostensibly unjustifiable criticism, it may likewise be natural for lawyers to respond to client complaints, which they perceive as unfounded, as a slight on their character. Yet complaints seem an increasing corollary of legal practice; another tribunal has observed that “[i]t is an arduous profession . . . where people often make unreasonable complaints”.3 This has in turn prompted some lawyers to respond proactively, by pressuring the client to withdraw the complaint(s). Yet, again, a “natural” response is not always an ethical one. For instance, the behaviour of a solicitor who, seeking to encourage a former client to withdraw his complaints, in a letter to the client mentioned how the client’s career could be prejudiced were the client’s criminal record disclosed to his employer, was branded as sufficiently “disgraceful and dishonourable” to justify his striking off.4

    Other lawyers, faced with (unreasonable) complaints, have instead pursued a passive course, hoping (presumably) that the complaints will vanish, an attitude that has sometimes translated to ignoring the legitimate inquiries of professional bodies. The professional rules make explicit the need to respond to requirements of a regulatory authority,5 and the disciplinary case law is littered with instances of misconduct findings against lawyers who have failed in this duty.6

    Another “natural” response to a discourteous or difficult client is to terminate the retainer. The “client from hell”, as most practitioners can vouch, can make practice “hell”. Again, though, a natural (and seemingly reasonable) response may not necessarily reflect an ethical one; it has been judicially observed that “difficult clients are not unusual”, and difficulty to this end is not by itself just cause to terminate.7

    There is, accordingly, a price of membership of the legal profession, which in this and other instances is extracted via an expectation that members suppress otherwise prevailing human nature.

    Gino Dal Pont is Professor, Faculty of Law, University of Tasmania. 1. Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 4.1.2. 2. Legal Services Commissioner v Lynch [2015] VCAT 772. 3. Council of the Law Society of the ACT v Legal Practitioner ‘D3’ [2015] ACAT 7 at [116]. 4. Law Society of New South Wales v Sullivan [2000] NSWADT 167 at [95]. 5. Note 1 above, r 43.2. 6. See, for example, Legal Services Commissioner v Canals [2008] VCAT 576. 7. Urbaniak-Bak v Prail [2014] ACTSC 171 at [84] per Mossop M.

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