A Brisbane solicitor has failed in his bid to have evidence against him deemed inadmissible due to Legal Professional Privilege (LPP).
Vincent Pennisi was charged by the Legal Services Commission (LSC) last year with engaging in “conduct in the course of practice which was likely, to a material degree, to bring the profession into disrepute” in relation to a letter he sent on behalf of a client in 2021.
In the Queensland Civil and Administrative Tribunal (QCAT) this month, the LSC successfully argued that any communications between the principal at Chermside firm Pennisi Zia lawyers and his client were made to further an improper purpose – to circumvent a protection order – and therefore there was no legitimate claim for LPP.
The LSC’s discipline application in August last year was prompted by a complaint about a 13-page letter dated 31 May 2021, sent by Mr Pennisi to his client’s ex-wife.
A protection order granted in January 2020 prohibited Mr Pennisi’s client “from, directly or indirectly, contacting or attempting to contact or asking someone else to contact his ex-wife by any means of communication”.
The order contained an express exception for messages through an agreed platform, which stated “all such communications must be succinct and not include any form of emotionally manipulative, coercive or abusive language, talk of past/relationship matters or any other matter not directly related to the child spending time with (the client) or the child’s welfare or development”.
The LSC application stated that the letter – which was signed by Mr Pennisi and on his letterhead – was “unprofessional as it was oppressively lengthy, contained grammatical and spelling errors, poor punctuation, incorrect tenses and repetitive statements”.
The letter spoke of the relationship between the client and complainant, used “emotionally manipulative and coercive language” and was “unprofessional in tone and content, irrespective of the existence of the protection order”.
“By drafting and/or arranging for the (letter to the complainant) to be sent to the complainant, the (respondent’s) integrity and professional independence was compromised. By that conduct, he was likely to bring the profession into disrepute to a material degree,” the LSC submitted.
Mr Pennisi filed an LPP application on 16 February this year seeking orders under Section 47(2) or Section 62(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) that seven documents be subject to LPP, including draft copies of the letter, notes of the client’s instructions, and a copy of the protection order.
He contended the documents were created for the dominant purpose of the client obtaining legal services, or contained statements that disclosed a communication conveyed as part of, and for, the purpose of the client obtaining legal services.
The LSC contended the client clearly intended to use Mr Pennisi to circumvent the protection order, and Mr Pennisi’s intent or knowledge of his client’s intent was not relevant.
It pointed to facts including that there were no ongoing legal proceedings between the client and ex-wife at the time the letter was sent; that the letter’s terms “expressly disavow the commencement of any proceedings”, and that the letter’s tone was non-legal. It also stated the letter bore “no hallmarks of legal correspondence” and was “not legal in its nature”.
Mr Pennisi’s client had also engaged two other Brisbane lawyers to send letters to the complainant on his behalf, in March and July of 2021, it said.
In her 30-page decision published on Tuesday, Justice Williams said Mr Pennisi’s arguments included that had the client sent the letter directly to the complainant, it would have breached the protection order, but “it did not breach the protection order for the client to ask a lawyer to write to the complainant”.
She said the exception afforded by Section 60 of the Domestic and Family Violence Protection Act 2012 (Qld) did not apply because there was no legitimate connection between Mr Pennisi’s actions as a lawyer and legal proceedings.
She said this was a case of the “client putting in place a means to achieve an outcome that was expressly prohibited by the terms of the protection order by using a lawyer to give the letter a guise of legitimacy”.
“It shows an intentional disregard for the law by the client by seeking to dress up the letter as falling within the statutory exception without any regard to the express scope of the statutory exception,” she said.
In dismissing Mr Pennisi’s application, Justice Williams said the improper purpose had been established and could be characterised as a “fraud on justice” that went to the heart of the solicitor-client relationship.
She said Mr Pennisi’s settling and sending of the letter was in furtherance of the improper purpose. Accordingly, the nominated documents were admissible and could be relied upon in the LSC’s discipline application, she said.
The discipline application will be heard at a later date.
Share this article