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Ethics: Do what I say, or else …

Ethics: Do what I say, or else …

By Michael Dolan and Carly Erwin

Ethics Practice & Procedure 

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A solicitor should not use the threat of disciplinary action to pressure another solicitor to conform to a course of action.

Snapshot
  • A solicitor must not make a threat of disciplinary action solely to pressure another solicitor. 
  • If a threat of disciplinary action is made without justification, it may breach both ASCR 32 and 34. 
  • Instead of threatening disciplinary proceedings, it is recommended that a solicitor seek a ruling from the LIV Ethics Committee. 

You are representing the wife in a family law matter. The solicitor for the husband is alleging that you are conflicted and has written to you requesting you cease to act. You do not believe you are conflicted and continue to act on the wife’s instructions. You have received a letter from the other side threatening to report you to the Victorian Legal Services Board and Commissioner (VLSB+C) unless you immediately stop acting. You are anxious about being investigated by the VLSB+C and ask yourself if you should stop acting?

It is all too common that a distressed solicitor rings the LIV Ethics Line to discuss their obligations after receiving a threat from an opposing solicitor to report them to the regulator. This issue can arise in a multitude of circumstances and is not limited to the above scenario. Another common example occurs where a solicitor has received a threat of disciplinary action where a client’s file has been requested, but not yet provided.

As an officer of the court, a solicitor has a fundamental duty of professional courtesy that must be extended to other solicitors in the course of legal practice.1 It is inappropriate to use the threat of disciplinary action against another solicitor as a forensic tactic to coerce and pressure another solicitor to comply with a desired outcome. The matter of Legal Services Commissioner v Davey2 exemplifies this principle: 

“. . . [I]t is a matter of ethics that one does not make threats against other practitioners in the context of negotiation . . . it is worthwhile to note the words of the Court of Appeal of New South Wales in the matter of De Groot v The Nominal Defendant 2005 NSWCA 61. At paragraph [253] the following was said:

Courts should charge themselves against stratagems which include collateral attacks on the legal representatives of the opposing party whether based on claims for costs on professional discipline on supposed conflicts of interest or otherwise. Overbearing the opponent’s legal representatives by threats against their personal positions is outside the range of legitimate strategies for conducting litigation. Attacks on bases like that should be made with wholehearted sincerity and on solid grounds or the subject should not be raised at all. If anything is to be done it should be done by making an application to the Court not by uttering threats.”3

Before threatening disciplinary action, a solicitor must consider whether such a threat can ever be justified. Accordingly, it is necessary to distinguish the purpose of threatening such action, and whether it is made on a legitimate basis or as a strategy to intimidate and pressure the other solicitor. In doing so, a solicitor should take into consideration the comments of Chief Justice Paul de Jersey in the matter of Legal Services Commissioner v Sing:

“It may, in any particular case, be difficult to delineate the precise point at which any application of pressure becomes improper. That is why practitioners must be extremely careful before resorting to any even arguably threatening conduct. They are well advised to err on the side of caution, as in all aspects of their professional approach.” 

It is crucial that a solicitor is aware of r34 of the Australian Solicitor’s Conduct Rules 2015 (ASCR):

Dealing with other persons

34.1 A solicitor must not in any action or communication associated with representing a client:

34.1.1 make any statement which grossly exceeds the legitimate assertion of the rights or entitlements of the solicitor’s client, and which misleads or intimidates the other person; 

34.1.2 threaten the institution of criminal or disciplinary proceedings against the other person if a civil liability to the solicitor’s client is not satisfied; or 

34.1.3 use tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frustrate another person.

Further, r32 of the ASCR explicitly provides that a solicitor must not make allegations of professional misconduct or unsatisfactory professional conduct unless they are bona fide, and made on reasonable grounds with a proper basis. Thus, a solicitor threatening disciplinary action as a means of leveraging a forensic advantage from an opposing solicitor may themselves be in breach of their ethical obligations. 

It is important to distinguish this issue from circumstances where a solicitors’ own client threatens to report the solicitor to the VLSB+C. Dependent on the circumstances, this threat may constitute a breakdown in the solicitor/client relationship, and constitute “just cause” to terminate the client retainer pursuant to r13 of the ASCR. 

A solicitor must think very carefully before making a threat to report a colleague to the regulator. Instead, a solicitor should consider seeking a ruling from the LIV Ethics Committee to establish the ethical obligations that arise in their present matter.5 It must be remembered that only a court has inherent jurisdiction to order a solicitor to cease acting. In such circumstances, consideration may be given to seeking client instructions to apply to the court for an injunction to restrain the solicitor from acting provided that there is a proper basis for doing so. 

To seek advice on ethical obligations or to request an Ethics Committee ruling, contact the LIV Ethics Line on 9607 9336. ■


Michael Dolan is special counsel, LIV Ethics, and Carly Erwin is a paralegal, LIV Ethics.

  1. ASCR, r4.1.2. 
  2. [2018] VCAT 1629. 
  3. Note 2 above [6].
  4. [2007] LPT 004 [30].
  5. The LIV Ethics Hub has information on requesting an Ethics Committee ruling and access to past rulings: https://www.liv.asn.au/Professional-Practice/Ethics/LIV-Ethics-Committee.

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