Two experienced lawyers will be publicly reprimanded, and one fined $10,000, for each writing a long and manipulative letter to a client’s former partner who was protected by a domestic violence order.
In the Queensland Civil and Administrative Tribunal on Friday, Justice Martin Burns sanctioned the two practitioners, who were each charged by the Legal Services Commissioner (LSC) with engaging in conduct in the course of practice which was likely, to a material degree, to bring the profession into disrepute.
In the first matter, a Brisbane solicitor sent a 23-page letter to a client’s ex-wife, in July 2021.
The aggrieved had been granted a protection order after she received “numerous lengthy, repetitive and obsessive communications” from the client, which she found to be “emotionally manipulative and coercively controlling”.
The order, to continue until January 2025, as well as standard conditions, included a condition that the client “is prohibited from, directly or indirectly, contacting or attempting to conduct [sic] or asking someone else to contact the aggrieved by any means of communication including but not limited to telephone, internet, letter, or social networking sites”.
“Except by messages sent through an agreed communication platform namely ‘Talking Parents’ and 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…” it stated.
The practitioner, who was admitted in 2013 and is an accredited specialist in family law, knew the order was in place when the client asked him to prepare the letter to accompany service of an application to vary parenting orders.
“The letter was, to say the least, unprofessional,” Justice Burns said.
“It was oppressively lengthy, and riddled with grammatical and spelling errors, poor punctuation and repetition.
“More importantly, it went well beyond what might be legitimately thought to be a communication about the child’s time with the client.
“It employed emotionally manipulative and coercive language and spoke of the relationship between the client and the aggrieved, and the respondent later admitted it contained statements likely to amount to a breach of the protection order if it had been sent by the client.”
Justice Burns said the dominant theme of the letter was an emotional appeal for the aggrieved to reconcile with the client, and at times its terms were “openly manipulative”.
“On no fewer than eighteen separate occasions, the letter expressed the client’s love for the child,” he said.
“There were, in addition, about 10 references to the client not wishing to ‘upset’ the aggrieved, seven imploring her to avoid the ‘stress of court’ and five thanking her on behalf of the client for ‘special time’ he spent with the child earlier that year.”
The practitioner said the client was “highly anxious, pedantic and demanding, and concerned with the minutest details of the letter”, and over about five months an initial draft of three pages grew to 50 to 60 pages at once point.
“The respondent ‘pushed back’ on occasions but accepted he was ‘not firm enough’ and found himself ‘effectively negotiating’ with the client over the content when, as the author of the letter, it was of course his sole responsibility to determine what was sent,” Justice Burns said.
“The result was, for the most part, unmistakably the work of the client and not that of the respondent.
“The respondent, having given in to the pressure exerted on him by the client when he should instead have shown him the door, accepted in hindsight he should never have sent the letter.”
The meaning of the non-contact condition in the order was clear, he said, adding that an exception available under the Domestic and Family Violence Protection Act 2012 (Qld), which allowed a lawyer to contact an aggrieved, should never diminish the protections afforded by the order.
Justice Burns said a practitioner’s independence and professional integrity were “simply indispensable to the advancement of the administration of justice”.
“A practitioner who surrenders either, lending name and/or letterhead to a communication he would not himself have authored, abjectly fails to advance that critical objective.”
The tribunal had “little hesitation” in concluding the conduct amounted to professional misconduct.
“It went well beyond a communication of the kind permitted under s 60 of the DFVP Act – i.e., in relation to the parenting proceeding – to one which deployed emotionally manipulative and coercive language with talk of the past relationship between the aggrieved and the client that the very order in question existed to prevent,” Justice Burns said.
“It is also of some moment to record that, although the conduct is confined to the sending of a single piece of correspondence, it was neither composed nor sent in haste; its content was instead ‘negotiated’ over the course of months during conferences with the client.”
Justice Burns agreed with the LSC’s submission that a $10,000 fine should be part of an appropriate penalty.
In the second matter, a Brisbane principal drafted and emailed a seven-page letter to a client’s ex-wife in March 2021, to seek to vary a protection order.
The order contained the same additional condition as in the earlier case.
Justice Burns said the request was made in a bid for reconciliation.
“Indeed, there could be no mistake about the motivation behind the letter because the theme of reconciliation between the client and the aggrieved, and of a hoped-for future together, was returned to on almost every page,” he said.
He said throughout the letter, the client was portrayed as “patient, mature, respectful and reformed”.
The practitioner, who was admitted in 2001 and is accredited specialist in criminal law, disputed that his conduct amounted to either unsatisfactory professional conduct or professional misconduct
The practitioner maintained he did not act as a mere mouthpiece for the client; that he tailored the “language, tone, structure and length of the letter” to what he knew of the aggrieved; and that in hindsight he would have written a shorter letter with less repetition.
Justice Burns said the practitioner “honestly believed he was entitled to write to the aggrieved in those terms, and he was attempting, in a sincere if ultimately misguided way, to serve the interests of his client while observing his wider professional obligations”.
He said the observations made in the earlier matter, about respecting the order in legal communications, applied with equal force.
The LSC submitted the conduct should be classified professional misconduct, while the practitioner submitted it did not warrant disciplinary action.
Justice Burns said the conduct should be classified as unsatisfactory professional conduct because the letter went well beyond seeking a protected person’s consent to a variation of a protection order.
“It contained emotionally manipulative language in places and was in other places unprofessional in its tone and content,” he said.
“It was also intimate in ways that correspondence from a legal practitioner has no business being.”
He said the case could be distinguished from the earlier case because the practitioner did not surrender his judgment to his client.
“He weighed the tension between his duties and made deliberate choices – as to what to disclose, and how to frame it – in what he believed to be the proper discharge of his role,” he said.
“That was not the conduct of a mouthpiece. It was, by his uncontested account, a genuine and independent, if ultimately mistaken, exercise of his own judgment.”
The letter, “though flawed, was not sustained in manipulation or coercion, and nor did it exploit the aggrieved’s vulnerability”, he said.
Both practitioners were ordered to pay the LSC’s costs.
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