Failure to reach ‘reasonable standard of competence’ ends in professional misconduct  

“I do not have the slightest doubt that it is professional misconduct for a lawyer to offer to settle a client’s dispute with another person on the condition that the other person withdraw a criminal complaint that person has made against the client … which is pending before a court.”¹

This is what occurred in the recent case of Legal Profession Board of Tasmania v W, where the respondent practitioner was found guilty of professional misconduct.

Background

A client of the respondent was charged with two counts of common assault against his former wife after she made complaints to Tasmania Police alleging that he assaulted her. She had taken out a police family violence order against him for her protection.

The client then wrote to his former wife through the respondent and offered to settle their matrimonial property dispute, on terms which included that “all legal pursuits and accusations cease including Tas Police. All matters are then resolved, finalised”.² Soon after, the respondent’s client was charged with the crime of perverting justice in breach of the Criminal Code Act 1924 (Vic).³

All of that notwithstanding, the respondent himself wrote to the lawyer acting for the client’s former wife conveying an offer to settle the matrimonial property dispute between parties – on terms expressed to be conditional upon withdrawal by the former wife, of complaints made to Tasmania Police against his client.⁴

In response to an investigation into his conduct, the respondent explained that he was bound by his client’s instructions which were that the accusations made by his former wife were false. The learned primary judge found that the respondent’s conduct amounted only to unsatisfactory professional conduct. The appellant then challenged this finding.

Findings

On appeal, the court considered that such an explanation by the respondent was no answer to the applicant’s assertion of professional misconduct. The gravity of the attempt to have charges pending before a court, withdrawn or undermined, justified a conclusion that the conduct amounted to a “substantial failure to reach or maintain a reasonable standard of competence”.⁵

Whatever his client’s instructions were and no matter what his belief in them was, in making those offers, the respondent’s conduct had a tendency to prevent or defeat the course of justice, or the administration of the law.⁶

Whether or not the respondent believed that evidence of his own, or his client’s offers of settlement conditioned upon the withdrawal of the complaints, were inadmissible in evidence, was hardly to the point. The practitioner’s conduct was sufficiently serious as to raise questions of his competence and diligence and, in that respect, his fitness to practise.

The court considered that the standard of competence and diligence required of a legal practitioner is to be evaluated on the basis of what a reasonable member of the public would be entitled to expect. The offers, conditioned as they were, fell substantially short of the required standard, whether or not they amounted to a crime.

Orders

The court set aside the declaration of the primary judge that the respondent was guilty of unprofessional conduct, and substituted a declaration that the respondent was guilty of professional misconduct. The other orders determined by the primary judge were not disturbed.

Sarah Millar is a law clerk at Queensland Law Society Ethics and Practice Centre. This article has been approved by Grace van Baarle, Manager and Ethics Solicitor, QLS Ethics and Practice Centre.

Footnotes
¹ Legal Profession Board of Tasmania v W [2023] TASFC 1, [1].
² Ibid [5].
³ Criminal Code Act 1924 (Vic), s105.
⁴ Ibid [7].
⁵ Ibid [10].
⁶ Ibid [11].