Doing what the client wants has ethical professional behaviour limits. Practitioners in litigious and non-litigious settings are often put in difficult situations and feel pressure to something to benefit the client which would breach ethical standards and professional conduct rules. The case examples below show how practitioners can get pressured and end up in trouble.
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Mediation tactics
There are legal and ethical limits to how far practitioners can go in settlement negotiations.
Legal Services Commissioner v Mullins [2006] LPT 012 concerned disciplinary proceedings in Queensland against a barrister who had acted on his client’s motor vehicle compensation claim. In pursuing the claim, the client’s solicitor provided a report on his future needs to the defendant’s insurer. This was based on a medical report that the client’s life expectancy was that of a normal 48-year-old, reduced by 20% because of his injuries.
Less than three weeks before the mediation the client discovered he had cancer and was to receive chemotherapy treatment. The barrister initially thought these facts needed to be disclosed to the insurer resulting in the mediation being adjourned. The client instructed his lawyers not to reveal these facts unless he was legally obliged to do so as he wanted the mediation to proceed. After further consideration, the barrister decided they were not obliged to disclose the illness at the mediation so long as they did not make positive assertions to mislead the insurer and its lawyers about the client’s life expectancy.
The mediation conference proceeded with no mention of the client’s cancer. The barrister’s outline of argument referred to the damages reports served earlier that assumed a normal life expectancy less 20%. The claim was settled at the mediation.
The outcome
The Legal Practice Tribunal subsequently found the barrister guilty of professional misconduct because the barrister intentionally deceived the insurer and its lawyers about the accuracy of the client’s life expectancy. This was despite his counsel arguing the negotiations were commercial and there was a tacit assumption the parties would rely exclusively on their own information when deciding whether to settle.
The instructing solicitor, who relied on the barrister’s advice, was also found guilty of professional misconduct in Legal Services Commissioner v Garrett [2009] LPT 12.
The solicitor and barrister should have sought their client’s instructions to disclose the new facts relevant to life expectancy. If the client had refused to agree to such disclosure, his lawyers should have ceased acting.
If these facts were transposed to a mediation in Victoria subject to the Civil Procedure Act 2010 (Vic), the practitioners would have breached their overarching obligations, particularly the obligations to act honestly at all times and not to engage in misleading and deceptive conduct. The conduct could also amount to a contravention of section 18 of the Competition and Consumer Act 2010 (Cwlth).
False witnessing
Falsely attesting to have witnessed the signing of documents might seem like a minor issue but is a huge ethical breach.
A practitioner in a family law de facto matter prepared three affidavits supporting the existence of the de facto relationship. They were prepared based on written information from the deponents and additional information given to the practitioner by their client without speaking to the deponents about the additional information.
The affidavits were signed by the deponents and returned to the practitioner unwitnessed with very little time left to file them. Rather than returning the documents to the deponents to be properly signed and witnessed, the practitioner falsely attested to witnessing the signatures. It was a lapse in judgement that had considerable consequences.
At the family court hearing the evidence of the deponents was found to be false, as was the witnessing of the affidavits. The client lost their case. As a result of the practitioner’s drafting and false witnessing of the affidavits the practitioner was ordered to pay 25 percent of the costs of the proceeding.
The outcome
Charges of unsatisfactory professional conduct were then brought against the practitioner by the Victorian Legal Services Commissioner. The Victorian Civil and Administrative Tribunal found that it was not satisfactory for the practitioner to have drafted the affidavits as they did without giving the witnesses the opportunity to consider and change the wording. The tribunal member also found that falsely attesting the three affidavits amounted to misconduct at common law as such behaviour would be regarded as disgraceful and dishonourable by legal practitioners of good repute and competence.
The tribunal member acknowledged the impressive character references provided and the good work the practitioner had done in the community. There was also a general reference to the difficult personal circumstances the practitioner had been in at the time.
While the behaviour, the subject of the charges, was described as a ‘lapse’ the seriousness nature of it warranted a reprimanded, the practitioner was also ordered to attend ethics and professional responsibility training and pay a penalty and the Legal Service Board and Commissioner’s costs. ( VCAT decision)
Risk management lessons
When practitioners and clients are under pressure, cutting corners might sometimes seem like an option to “help” the client. These cases are a good reminder that practitioners obligations extend beyond the client’s immediate matter.
There are seven lessons from these cases.
• When acting for a client in a difficult situation you need to keep in mind your ethical obligations. This might mean you need to:
- stop, step back and think about the options and consequences
- if necessary, talk to a colleague, the LIV ethics help line or a risk manager at LPLC to help you get an objective perspective and alternative strategy
- stop acting if the client insists on acting in a way that will breach your ethical obligations.
• When taking on matters with short timeframes think carefully about whether you really have the capacity to do the work to the required standard in the time frame.
• When preparing affidavits for witnesses it is important to go through the affidavit with the witness to ensure the content is correct and ensure the witness understands the importance of the affidavit and the oath or affirmation they have to give.
• Strict adherence to formal requirements when witnessing documents and declarations and attesting affidavits are ‘not negotiable’. It is never ok to attest to having witnessed a signature if you didn’t see it being signed. Don’t let anyone or anything pressure you into doing that.
• Remember also that LPLC’s insurance policy requires any practitioner who witnesses or purports to witness a document without seeing the actual signing or execution of it to personally repay any amount paid by LPLC to resolve a claim, including defence costs, arising from such false witnessing (Clause 14 of LPLC’s contract of insurance).
• The Civil Procedure Act 2010 (Vic) imposes overarching obligations on practitioners in litigation to, amongst other things, act honestly at all times and not to engage in misleading and deceptive conduct.
