On 3 August, the Victorian Civil and Administrative Tribunal handed down a decision with little fanfare; but like the pebble that starts an avalanche, the profession may yet hear more of the issues covered.
The decision in Victorian Legal Services Commissioner v Stewart (Review and Regulation)  VCAT 872 dealt with charges of professional misconduct and unprofessional conduct.
The facts in relation to the charge regarding misleading advertising related to the practitioner advertising herself as a ‘Criminal Defence Specialist’ who had a ‘team of lawyers’ available to assist clients.
In reality she was a sole practitioner with no employees, and had no specialist accreditation. The tribunal found that this advertising amounted to unsatisfactory professional conduct on the basis that the advertising was misleading.
The practitioner in this case was reprimanded, fined and ordered to pay costs; she also agreed to undertake extra CPD in relation to ethics, and any Queensland practitioner engaging in misleading advertising should expect similar consequences,1 but the problems might not be limited to disciplinary proceedings.
Should a client challenge a costs agreement on the basis that a solicitor claimed a speciality they did not have, for example, the court may well void the agreement.
The Queensland Civil and Administrative Tribunal has set aside costs agreement on the basis that misrepresentations had been made as to the likely amount of damages2 and it would be unwise to assume the situation would be any different in relation to misleading claims as to specialist abilities or resources available to clients.
It is trite to note that costs agreements and client retainers are no more than contracts, albeit of a particular nature, and subject to the same laws. Just as inducing a person to enter into a contract via a false misrepresentation (which can include claiming a status one does not possess)3 can lead to a contract being voided, claiming an expertise one does not have could lead to a cost agreement being set aside.
Practitioners should take great care in their marketing, and should not assume they will be allowed the same leeway as other businesses; officers of the court will be held to higher standards.
In addition to issues around claiming titles of dubious provenance, there are specific rules regarding expertise and advertising.4 These rules do not change in the realm of social media and digital marketing, an issue considered in detail in the Ethics Centre’s Guidance Statement No.24 – Ethical considerations on the use of social media and law practice websites.
In short, the Stewart case is confirmation that when advertising, if lawyers talk the talk, they must be able to walk the walk.
Shane Budden is a Special Counsel, Ethics, with the Queensland Law Society Ethics and Practice Centre.
1 See r36, Australian Solicitors Conduct Rules 2012.
2 Stewart v Stephens & Tozer Solicitors  QCAT 182 (8 June 2022).
3 R v Barnard (1837) 173 ER 342.
4 See rules 36 and 37 of the Australian Solicitors Conduct Rules 2012.