Re Albert (a barrister) and McLean (a solicitor)1 concerned the tone and content of communications sent by a solicitor and barrister to a registry officer.
The proceeding commenced as an application to the Practice Court of the Supreme Court of Victoria. The applicant, a non-citizen detained in immigration detention in New South Wales, contended that his detention was unlawful and sought leave to issue a writ of habeas corpus ad subjiciendum out of the court. The applicant was represented by Mr McLean, a solicitor at Victoria Legal Aid, and Mr Albert of counsel.
On 26 March 2021, Mr McLean, via email to registry officer Ms Warren, applied for an urgent hearing stating the applicant was seeking to reach a timetable by consent with the defendants (Friday email). The application was accompanied by a summons seeking a pseudonym for the applicant.
Relevantly, it was apparent that the author of the email was alive to the prospect of the proceeding being transferred to the Federal Court, and sought that the issue of transfer be “heard by the current practice court duty judge”. The court noted that Mr Albert had been involved in a similar case (MB (a pseudonym) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (MB)), where the proceeding was transferred to the Federal Court. The Friday email was drafted by Mr Albert and although Mr McLean read it, he did not make substantive changes before sending it. The email was not copied to any representatives for the defendants.
The application for a pseudonym was subsequently, in due course, referred to Justice Dixon as the Principal Judge of the Common Law Division.
On 27 March 2021, Ms Warren wrote to Mr McLean noting that His Honour had tentatively concluded that the proceeding should be immediately transferred to the Federal Court, as the applicant was in a Commonwealth detention centre.
Via reply email to Ms Warren (Saturday email), Mr McLean proceeded to refer to Justice Dixon as a ‘gatekeeper to the court’ who had a “strict policy of blocking any immigration detention habeas corpus application from being heard by another judge”.
The email stated the Federal Court lacked jurisdiction to deal with the application, and Justice Dixon was “plainly wrong to hold otherwise in MB”. It also alleged that Justice Dixon failed to act on material before the court, and if the matter was “determined by a person other than the Supreme Court duty judge after a hearing, it will be plain that it is a decision vitiated by bias, actual or apprehended, and a denial of procedural fairness”. The email was again drafted by Mr Albert and sent by Mr McLean to Ms Warren. The email was not copied to any representatives for the defendants.
Issues
Mr McLean and Mr Albert were directed to appear before the court and make submissions as to why the court should not find that their conduct constituted contempt of court, and/or refer their conduct to the Legal Services Board and Commissioner for further investigation and action.
Issues considered
The court’s primary concern was that Mr McLean and Mr Albert failed to discharge their fundamental ethical duty to be (honest and) courteous in all dealings in the course of legal practice.2
The impropriety was “illustrated by the colour of the language used in communicating privately with a court officer when seeking to avoid having the application heard by a judge who had decided a like application in a manner that would be adverse to the applicant”.3
The court described the correspondence as “pejorative”, “provocative”, “discourteous” and “controversial”.
Further, the insistence that the application be heard by “the current practice court duty judge” evinced a tendency to interfere with the due administration of justice by directing Ms Warren as to which judge should hear the matter, behaviour akin to ‘forum shopping’.4
The court found that Mr McLean and Mr Albert acted contrary to the requirements set out in Practice Note SC Gen 4 (Custom and Protocol) and Practice Note SC CL 10 (Practice Court (Common Law), including by failing to copy in the defendants’ representatives in their correspondence.
The court emphasised that “Practice Notes of courts are not issued as optional guides of best practice capable of adoption if desired. The purpose of a Practice Note, when issued by the Chief Justice after approval by the Council of Judges, is to set out the court’s expectations of parties coming before the court. The profession is expected to be familiar with their content and follow their requirements where applicable”.5
With respect to each of Mr McLean and Mr Albert’s submissions, the court took into account their explanations for the conduct, and noted it was “clear that both Mr McLean and Mr Albert held deep concerns about the health of their client and were anxious to secure an urgent hearing”.6 Both Mr Albert and Mr McLean proffered full and sincere apologies for their conduct, and Mr Albert filed an affidavit explaining his central role in relation to the correspondence.
Mr McLean “acknowledged that the language in the Saturday email in several places was inappropriate, and that if an allegation of bias was to be made, it ought to have been made by an application in open court and not by an email to a court officer”.
Mr McLean submitted that he realised, on reflection, that he should not have sent the email in the terms drafted by counsel. The court accepted that “it is difficult for a junior solicitor to take issue with documents drafted by counsel, but the exercise of independent judgment on behalf of a client is an essential characteristic for all practitioners”.7
With respect to Mr Albert’s conduct, the court raised three particular issues of concern:
- It is not acceptable conduct to seek to influence a registry officer to follow some other procedure in allocation of matters for hearing to that set by the judges of court.8
- While counsel can (and should) make robust submissions in open court within appropriate, well established ‘rules of engagement’ between bench and bar when pursuing their client’s interests, to communicate in this manner and tone with court officers, including registry staff and associates, is altogether different.9
- Mr Albert failed to recognise and appropriately discharge his responsibility when working with a less experienced practitioner,10 and “by drafting inappropriate communications to be sent in the name of another person, Mr Albert led Mr McLean astray, setting a very poor example”.11 The court said “it is particularly important in the legal profession that more senior practitioners, especially those regarded as role models by less experienced colleagues with whom they work, recognise and accept their responsibility not to engage in inappropriate conduct”.12
In Mr Albert’s favour, the Court considered he was entitled to considerable credit for the recognition of his professional achievements, including his significant pro bono contributions and strong commitment to community service. The court accepted that Mr Albert had the “experience, intelligence and foresight to not simply recognise an error of judgment, but to analyse why he fell into error and identify what he needs to do to avoid doing so in the future”.13
The court was satisfied that Mr McLean and Mr Albert expressed true contrition and regret, demonstrated insight into the steps that needed to be taken to ensure that conduct of this sort was not repeated, and had taken active steps in rehabilitation. The court concluded they would be unlikely to repeat their conduct, and took no further action.
Meagan Liu is a Law Graduate in the QLS Ethics and Practice Centre. This article has been approved by Grace van Baarle, Manager.
Footnotes
1 In the matter of Albert, Matthew (a barrister) & in the matter of McLean, Luke (a solicitor); between Bowman, Rodger (a pseudonym) v Commonwealth of Australia & Minister for Home Affairs [2021] VSC 297 (Re Albert (a barrister) and McLean (a solicitor)).
2 [2021] VSC 297, [42] citing Legal Profession Uniform Law (Vic.) s296; Australian Solicitors’ Conduct Rules 2015 r4.1.2.
3 Re Albert (a barrister) and McLean (a solicitor) [2021] VSC 297, [52].
4 Ibid [51].
5 Ibid [53].
6 Ibid [45].
7 Ibid [57], quoting Davy-Chiesman v Davy-Chiesman [1984] Fam 48, 63-4(May LJ).
8 Ibid [59].
9 Ibid [60].
10 Ibid [61].
11 Ibid [64].
12 Ibid.
13 Ibid.
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