The ethics of negotiating

In Legal Profession Board of Tasmania v W [2023] TASFC 1, the Full Court of the Supreme Court of Tasmania in considering an appeal by the Legal Profession Board of Tasmania against a finding of mere unprofessional misconduct against a solicitor, held:

“I do not have the slightest doubt that it is professional misconduct for a lawyer to offer to settle a client’s dispute with another person on the condition that the other person withdraw a criminal complaint that person has made against the client and which is pending before a court”.  at [1]

The solicitor had been acting for the client in a family law property dispute with the client’s former wife.  The solicitor’s client had been charged with two counts of common assault against his former wife after she made complaints to the Tasmanian Police.

The client wrote to his former wife through the solicitor offering to settle their property dispute on terms which included that:

‘all legal pursuits and accusations cease including Tas [sic] Police”.

About a month later the solicitor himself sent a letter to the solicitors acting for the client’s former wife conveying an offer to settle the property dispute between the parties on terms expressed to be conditional upon the client’s former wife withdrawing her complaints to the Tasmanian Police.

The solicitor asserted that he was bound by his client’s instructions, however, the court was satisfied that:

“….in writing as he did, at the very least, the respondent was guilty of professional misconduct in the form of “unsatisfactory professional conduct …, where the conduct involves a substantial … failure to reach or maintain a reasonable standard of competence and diligence. ” at [10]

The court went on to say that….” the gravity of the attempt to have charges pending before a court withdrawn or undermined justifies a conclusion that the conduct amounts to “substantial failure to reach or maintain a reasonable standard of competence”.  Whatever his client’s instructions were and no matter what his belief in those instructions was, the respondent’s conduct had a tendency to prevent or defeat the due course of justice or the administration of the law”. at [11]

While a solicitor must follow a client’s lawful, proper and competent instructions[1], solicitors must not act as the mere mouthpiece of the client[2] and must not use tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frustrate another person[3].  Solicitors must exercise forensic judgement in discharging their duty to the court and the administration of justice, a duty which prevails to the extent of inconsistency with any other duty including that to act in the best interests of their clients.

[1] Rule 8 Australian Solicitors’ Conduct Rules 2015

[2] Rule 17 Australian Solicitors’ Conduct Rules 2015

[3] Rule 34.1.3 Australian Solicitors’ Conduct Rules 2015