The long-running rude letters case … Calling another solicitor “fundamentally dishonest” … Is this a breach of professional standards? … Has the exquisite finery of the legal profession been sullied? … Judges are having trouble making up their minds … Is the rule against rudeness a threat to free speech? … Everyone hoped Yarraside appeals had the last word … Now a special leave application looms … Janek Drevikovsky follows the long and winding trail
In mid-2011, McDonald was acting against Lander & Rogers in an unfair dismissal case. There was a telephone call between McDonald and a Lander’s solicitor, David Catanese. These days Catanese is managing principal solicitor at the Vic government solicitor’s office.
Lander & Rogers soon clarified a willingness to negotiate. Nonetheless, McDonald sent two letters to the firm, complaining about Catanese’s interpretation of the phone call, alleging he had “lied about the contents of the conversation”, was “fundamentally dishonest” and that it was “a slur” that Catanese “starts off at an early stage of his career telling lies”.
Lander & Rogers demanded a retraction, which was not forthcoming. So Catanese referred McDonald to the Victorian Legal Services Commissioner.
The VLSC hauled McDonald before VCAT, alleging misconduct under the Victorian Professional Conduct and Practice Rules 2005. Specifically, the commissioner argued McDonald’s letters breached r.21:
Applying this rule to McDonald’s case has proven a doozy for the Victorian judiciary.
The source of the problems has been the ACT Supreme Court decision in Lander v Council of the Law Society of the Australian Capital Territory (2009). That decision concerned ACT practice rule 25, nearly identical to Victoria’s r.21. Mr Lander, a solicitor acting for a teacher seeking medical retirement, wrote to the Department of Education, accusing its staff of “failing to communicate, being dishonest, rude, unhelpful, obsessive and compulsive, and bearing grudges against people who engaged lawyers”.
The ACT Supreme Court held r.25 regulated communications between practitioners, and so was inapplicable, since Lander was communicating with a non-lawyer third party. In scenarios like these, their Hons in Victoria held the correct question to ask is whether the practitioner had a reasonable basis for making the impugned communication.
McDonald has consistently relied on Lander, but it’s a vexed question how the decision applies to r.21.
At the first VCAT hearing, the senior member did hold Lander inapplicable to r.21, but instead distinguished Lander’s facts, saying McDonald’s letters did not serve his client’s legitimate purpose.
The member then considered how the everyday meaning of rule 21’s language might apply to the case and he concluded that McDonald’s words were provocative and offensive.
The tribunal found McDonald guilty of professional misconduct.
McDonald appealed to the VSC, where Zammit J reconsidered the test in Lander. She found Lander did apply to r.21, even though McDonald’s case concerned communications between practitioners.
She then reformulated the principle in Lander into what she called a “dichotomous” test. The reformulation went like this:
Zammit J concluded the VCAT senior member had not applied this “dichotomous” test, and so remitted the matter for rehearing.
It fell to the same senior member to hear the remitter, and to apply Zammit J’s “dichotomous” test. The member concluded McDonald’s comments did not advance his client’s legitimate interest, reasoning Lander & Rogers had already clarified they were willing to negotiate by the time McDonald sent the letters.
Accordingly, under Zammit J’s test, r.21 applied. The member said he assessed McDonald’s conduct to that standard in his first reasons, and declined to change his findings. Once again, McDonald emerged with an adverse finding.
Bell J of the VSC, who heard McDonald’s next appeal, had none of this. Lander did not prescribe a two-step test, His Honour said. Rather, legitimacy of purpose and reasonableness were considerations relevant to, but not determinative of, an application of r.21.
Bell also subjected r.21 to the Victorian Charter of Human Rights and Responsibilities and its protections around free expression. He agreed with the Victorian Attorney General, intervening, who submitted r.21 was a permissible restriction on speech because it protected the integrity of the legal profession.
Bell then came up with the following “proper” interpretation of r.21:
“… whether the alleged discourteous communication or avoidably offensive or provocative language or conduct represents a failure to take reasonable care to maintain the integrity and reputation of the legal profession.”
This focus had escaped the VCAT senior member, His Honour said, who had asked exclusively whether McDonald had a legitimate purpose and not on whether his comments were reasonable.
Instead, HH could only conclude McDonald had acted to within the scope of “reasonable professional judgment” – that was because McDonald felt Catanese was personally attacking him and trying to weaken his client’s negotiating position.
His Honour also concluded, without much explicit reasoning, that McDonald had a legitimate reason for making the comments.
Bell accordingly overturned the tribunal’s decision, finding McDonald not guilty of professional misconduct.
The VLSC entered an appeal, heard by Tate, Kaye and Emerton JJA of the VSCA. Their Hons firstly agreed Lander did not prescribe a “dichotomous” approach to r.21. Rather, r.21 should be read according to its natural, everyday meaning, though considerations of legitimate purpose and reasonableness are relevant.
Nonetheless, the appeal judges found no blame could lie at the feet of the senior member, who in applying Zammit J’s dichotomous test was correctly following the decision of a higher court.
The CA found Bell J was wrong to conclude the second VCAT decision had not considered reasonableness. Instead, the senior member had clearly averted to factors which went to the reasonableness of McDonald’s actions – like McDonald’s lack of conclusive proof for his version of the phone call.
The appeal panel then decided Justice Bell had been wrong to overturn the VCAT finding that McDonald’s actions had no legitimate purpose. Under s.148 of the VCAT Act, tribunal decisions can only be appealed on questions of law, but Bell J had here disturbed a factual finding.
On these two bases, the court allowed the appeal and reinstated the second VCAT decision. Which means McDonald is, as it stands, lumbered with a finding of professional misconduct.
In comments made to Lawyers’ Weekly, McDonald says he’s ready to take the fight onwards:
“Given that there is a clear divergence of opinion of judges in the Supreme Court, [I intend] to seek leave to appeal to the High Court.
It is also true that there may be a question of constitutional validity of rule 21 of the Professional Conduct and Practice Rules in terms of freedom of expression under section 15(2) of the Charter of Human Rights and Responsibilities Act.”
There’s too much excitement from one pesky practice regulation.