Courtesy is a fundamental ethical duty
By Michael Dolan.
You have just had the worst telephone conversation in years with another solicitor. You had called to discuss a conveyancing transaction and were roundly abused as being incompetent and not knowing what you are doing. Less than polite language was used. You are very upset and do not know what to do as you cannot understand what you did to trigger such a rude response. The incident has made you think about what behaviour you should extend to others in the course of your professional work and how you should expect to be treated in return.
Solicitors practise under professional conduct rules which require them to “be honest and courteous in all dealings in the course of legal practice.” (1) This is a fundamental ethical duty linked to their paramount duty to the court and the administration of justice. (2)
Courtesy has been defined as “politeness, respect, and consideration for others.” (3)
The Victorian Legal Services Board + Commissioner (VLSB-C) has reported on a case where a solicitor appeared before the Victorian Civil and Administrative Tribunal (VCAT) on five charges of using discourteous, offensive and/or provocative language in emails to another lawyer; and 11 charges of communicating directly with that lawyer’s clients. The solicitor was also charged with using a discourteous or offensive manner when communicating with a third party about another solicitor. (4)
The solicitor was representing two clients in separate property transactions within the one development, when she became frustrated with the vendor’s solicitor. Email communications became increasingly acrimonious and culminated in a series of emails by the solicitor which VCAT described as being ‘discourteous, offensive and/or provocative’. VCAT found the solicitor guilty of unsatisfactory professional conduct, issued a reprimand, and imposed a fine of $1,000.
The VLSB-C wrote:
“Lawyers who use emotive and intemperate language when communicating with the other side risk bringing the profession into disrepute. This is poor conduct and only invites complaints against those who engage in it. Further, it seriously compromises the professional courtesy that is so important to the satisfactory resolution of disputes between clients.”
The danger of engaging in discourteous correspondence is exacerbated by the use of electronic communication when fast typing fingers can outstrip the thought processes which should underpin any form of communication in the course of legal practice. As a young solicitor I was taught never to write anything that I would not wish to cross-examined about in later court proceedings or see on the front page of a daily newspaper.
The last word goes to a former Chief Justice of the Supreme Court of NSW (5):
“In a complex society such as ours relationships of civility, tolerance and trust cannot be established or maintained only on the basis
of interpersonal relationships. They must be institutionalised. That is what has happened in the law. The institutions for the
administration of justice, both in the courts and in the legal profession, operate on the basis of well recognised rules of proper conduct.
Our legal system and profession has much to be proud of in this respect. We must ensure that it remains so and hope that others learn from
the ability of this profession to resist the decline in civility apparent elsewhere in society.”
article first appeared in the Legal Executive Newsletter, a publication of the Institute of Legal Executives (Victoria) in 2017.)
- Legal Profession Uniform Law Australian Solicitors’ Conduct Rules, 2015, Rule 4.1.2
- Legal Profession Uniform Law Australian Solicitors’ Conduct Rules, 2015, Rule 3.1
- Collins English Dictionary
- Reprimand, fine for discourteous emails
- The Hon J J Spigelman, AC, Opening of Law Term Dinner, 2006