Being courteous is not a weakness when it comes to drafting Letters of Demand
It should come as no surprise that there are several pitfalls to avoid when preparing a Letter of Demand. Apart from the requirement to avoid engaging in misleading or deceptive conduct, solicitors may only advance a client’s interests within certain ethical constraints.
When preparing a Letter of Demand, a solicitor needs to avoid engaging in misleading or deceptive conduct so as to avoid breaching section 18 of the Australian Consumer Law.
A further requirement is that a solicitor must advance a client’s interests within certain ethical constraints. For instance, there is a need for courtesy in day-to-day dealings with other practitioners, as reflected in Rule 4.1.2 of the Australian Solicitors’ Conduct Rules (ASCRs): “A solicitor must…be honest and courteous in all dealings in the course of legal practice.”
The rule requires a solicitor to retain an appropriate professional detachment in order to focus on dealing with issues in contention.
In the context of Letters of Demand, it is helpful to be aware that the causes of discourtesy include: the adversarial nature of legal proceedings; pressure from clients to have their solicitor adopt a combative style in promoting their interests; and the view that being courteous is a sign of weakness.
Apart from the need in a Letter of Demand to adherence to the ethical obligation of courtesy, rule 4.1.2 requires a solicitor to be honest in all dealings in the course of legal practice. In this regard, a solicitor should be mindful of rule 22 of the ASCRs:
22. COMMUNICATION WITH OPPONENTS
22.1 A solicitor must not knowingly make a false statement to an opponent in relation to the case (including its compromise).
22.2 A solicitor must take all necessary steps to correct any false statement made by the solicitor to an opponent as soon as possible after the solicitor becomes aware that the statement was false.
Not only must there be adherence to the ethical obligation of courtesy and the absence of false statements in a Letter of Demand, rule 34 of the ASCRs further requires:
34. 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.
Clearly, in preparing a Letter of Demand, a solicitor needs to maintain a courteous approach, must be honest, and must not make false statements or statements which are excessive in their assertions, threatening, or primarily focused on embarrassment or frustration.
A solicitor should not be the mere mouthpiece of the client and must exercise forensic judgment with regard to the client’s assertions which are sought to be made to the opposing client or their legal representative. A solicitor can be assertive but must maintain courtesy and not stoop to being personally abusive.
With regard to pitfalls when claiming costs, a very useful resource can be found on the website of the Law Institute of Victoria (LIV) Letters of Demand Guidelines adopted by the Council of the LIV on 15 October 2015. This publication is especially helpful with regard to the inappropriateness of making assertions as to entitlement to costs if this entitlement is spurious or unlikely.