Professional conduct – a note of caution

A note of caution should be sounded in the reporting of the professional conduct implications of a recent pronouncement from the Full Court of Tasmania (Proctor article 12 April 2023Legal Profession Board of Tasmania v W [2023] TASFC 1).

Firstly, the relevant authorities were not considered by the court. Secondly, Queensland’s relevant statutory provisions differ from Tasmania’s.

The reasons for judgment open with a clear, authoritative sounding declaration:

“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 and which is pending before a court.”

The first difficulty with this proposition is that it comes from a case in which the practitioner accepted his conduct was wrong. The only issue for decision was whether the conduct was mere negligence, unsatisfactory conduct, or professional misconduct.

As a result of the way in which the case was conducted, no argument was made about the lawful limits of settlement agreements.

Importantly, the relevant authorities were not discussed.

In Kerridge v Simmonds (1906) 4 CLR 253, the High Court of Australia held that an agreement by the victim of criminal defamation to withdraw a prosecution was not contrary to public policy. This was on the basis that the injury to the plaintiff was a purely private one.

The distinction between private and public injuries has troubled Australian courts ever since.1 Kerridge v Simmonds remains the law of Australia.

At least some criminal prosecutions may be resolved by private agreements.

It must be, I would submit, that an Australian lawyer may properly assist in the creation of lawful agreements without fear of being accused of professional misconduct.

Another relevant consideration, in Queensland, is the law against “compounding” an indictable offence.2 In 2008, the “compounding” offence was amended to permit:

“an act done for the purpose of the following—
(a) negotiations in accordance with established legal practice between a lawyer representing the alleged offender and the prosecution to achieve a just outcome in relation to the proceedings for the offence
(b) mediation in good faith between the alleged offender and a victim of the offence or anyone acting in the interests of the victim in relation to an apology, compensation or restitution
(c) dispute resolution relating to the alleged offence
(d) discussions in good faith between the alleged offender and police officers calculated to ameliorate the conduct of the offender relevant to the alleged offence.”

The equivalent Tasmanian provisions are very different.3 Even there, compromise is expressly permitted in cases of common assault and defamation. Other Tasmanian prosecutions may be compromised with the sanction of the court.

A more general consideration is the law about illegal contracts – in particular those contracts which will be set aside on public policy grounds. An illuminating article on the topic is “Contractual Compromises of Criminal Liability” (1980) 43 MLR 535. Australian legislation about contractual terms will have a bearing on Professor Hudson’s comments in that article . There is also a relevant line of authority from New Zealand.4

I worry that the memorable opening words of the Tasmanian judgment will be repeated without qualification, contributing to widespread misunderstanding of an area of law which is more complicated than the opening paragraph suggests.

Ken Mackenzie
Accredited Specialist in Criminal Law – Queensland

1 Woodham v Roberts Limited [2010] TASSC 31 at [14] where it was said:
“The question of whether the alleged contract is void or unenforceable as being contrary to public policy is to be answered depending upon whether in the circumstances there was a social or moral duty to report the allegation to police. It is a debatable question whether all thefts, regardless of the amount and circumstances, are matters of public concern so that there is a social duty to prosecute; Garuda v Grellman [1992] FCA 188; (1992) 107 ALR 199”
See also Zhang v Yan [2021] FCA 905, and A v Hayden [1984] HCA 67 where several of the judges made broad statements about public policy.
2 Section 133 Criminal Code 1899 (Qld).
3 Sections 102 and 103 Criminal Code 1924 (Tas.).
4 Polymer Developments Group Pty Ltd v Tilialo [2002] 3 NZLR 258.

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