Solicitor sends letters to the magistrate hearing his case … Other side not copied in … Professional misconduct … Coming close to an intentional breach of the rules … Deliberate v reckless … Matters of substance … VCAT examines mental state of an experienced solicitor 

VCAT has found Michael Gullquist, a Melbourne corporate solicitor of 35 years experience, guilty of professional misconduct. 

Gullquist’s offence was to keep in touch with a NSW magistrate hearing his case, without letting his opponent in on the correspondence. 

He sent five letters to the NSW Local Court, three personally addressed to the magistrate, without copying any to the opposising side. 

The Victorian professional conduct and practice rules prohibit communicating “in the opponent’s absence with the court concerning any matter of substance”.

If a communication falls foul of the rule, the practitioner must “promptly tell the opponent what passes between the practitioner and a court”. 

The letters included affidavits to be tendered in evidence, submissions in support of orders sought, and commentary on the procedure of the trial. 

One particular letter was said to be inappropriate and threatening. It alleged that the magistrate had conducted a procedurally unfair hearing by refusing Gullquist an equal chance to run his case. It was copied to the Judicial Commission. 

“That letter is addressed to yourself and I have informed my counterpart that a release of a copy to him, is a matter for the addressee i.e. yourself, I have no objection to you releasing a copy of the letter to him when the parties are next together.” 

Gullquist did not contest that he failed to copy the correspondence to counsel, but argued that certain letters did not concern “matters of substance”. This argument was rejected – filing affidavits and submitting submissions were matters of substance. 

“Mr Gullquist clearly thought that it was a significant enough matter to bring it to the attention of the court. That is probably sufficient on its own to bring it within the rule.” 

“The conduct as a whole represented a substantial failure to reach or maintain a reasonable standard of competence and diligence and was thus within the definition of professional misconduct.”

It was further alleged that Gullquist deliberately or recklessly breached the rules. 

Gullquist did not give evidence, so the tribunal had to consider the appropriate inference to make about his mental state, based on admissible extrinsic evidence. 

It was acknowledged that the definition of “reckless” is protean across different sections of law. Here the Legal Services Commissioner was required to prove that, in context, the practitioner appreciated the risk that the conduct might possibly breach the rule, and proceeded regardless.

Gullquist argued that he had been working in corporate law for most of his 35 years as a practitioner, a world divorced from curial procedure, and therefore had limited appreciation for the risk of breaching the rules.

Member Wentworth found that he had came close, “but not close enough”, to breaching the rules intentionally. However, she did find that the solicitor had recklessly breached the rules in respect of three of the letters. 

Next up, the spanking.