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Hellfire Club
22 September, 2009  
Capital capers

ACT Law Soc tried to discipline a lawyer over robust letter to government department … Court of Appeal to the rescue … Lawyers now free to criticise bureaucracy … The flag of freedom is unfurled … Graham Hryce reports


The recent decision of the ACT Court of Appeal in Lander v Council of the Law Society of the ACT gives us an important glimpse at the distress that forthright lawyering can inflict on the sensitivities of bureaucrats in the Australian Capital Territory.

The appellant, David Lander, is a local barrister and solicitor of many years experience.

In the course of acting for a client, who was in dispute with the ACT Department of Education, Lander wrote a letter to the chief executive of the department.

In his letter (see below), the lawyer made a number of general criticisms of the department.

imageNo criticisms of individual officers were made. No individual officers were named.

Michael Bateman, the department’s director of human resources, replied on behalf of the chief executive, Dr Michelle Bruniges (seen here), and rejected Lander’s criticisms (see letters below).

At the same time, Bateman fired off a letter of complaint to the Law Society of the ACT, asking them to investigate whether Lander’s letter breached the professional standards expected of legal practitioners in the ACT.

In that letter, Bateman complained that …

“departmental staff have been offended by Mr Lander’s accusations and feel they have been unfairly targeted by his derogatory and slanderous remarks.”

Presumably Bateman, or perhaps Bruniges, distributed copies of the solicitor’s letter to departmental staff, so generating the buckets of offence.

Lander responded to the Law Society by providing additional details supporting his criticisms.

He also submitted he was entitled to make his criticisms pursuant to section 16 of the Human Rights Act 2004, which enshrined the so-called “right of freedom of expression”.

Lander pointed out to the Law Society that he did not believe it was their role, “to censor or to adjudicate on these fundamental freedoms and duties, but to defend them”.

A pious hope, as things turned out.

One might have hoped that the Law Society would smartly throw out Bateman’s complaint.

Not so.

Further correspondence ensued, with the human resources director saying:

“The department is genuinely concerned about the welfare of the staff who are the subject of Mr Lander’s allegations, that their reputations may be harmed, and that they may be distressed at serious yet unsubstantiated allegations.”

imageWhat a tizz. Can it seriously be contended that bureaucrats’ welfare could harmed by Lander’s letter, which was couched in general terms?

Nevertheless, the Law Society viewed the matter gravely and referred it to the Legal Practitioners Disciplinary Tribunal, in this case consisting of J. Gallop (a former judge of the ACT Supreme Court – seen here) and Ross Watch and a Mr G. Wright.

The tribunal found Lander guilty of unsatisfactory professional conduct.

He was ordered to pay a fine of $2,500 and suffer the indignity of a public reprimand.

He was also ordered to pay the costs of the Law Society on a solicitor/client basis, and to undergo, and complete with a pass mark of not less than 75 percent, a course of education in legal ethics conducted by the Australian National University Legal Workshop.

In default of those orders Lander’s practicing certificate was to be suspended.

All in all, a proper birching – all for having the audacity to criticise the ACT Department of Education in a letter to its chief executive.

The tribunal’s findings were curious, to say the least.

It held that the solicitor was guilty of breach of rule 24 of the Legal Profession (Solicitors) Rules 2006 (ACT) which provide that:

“A practitioner, in all of the practitioner’s dealings with other practitioners, must take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that the practitioner’s communications are courteous and that the practitioner avoids offensive or provocative language or conduct.”

Notwithstanding that rule 24, in terms, relates only to dealings with other practitioners, the tribunal held that it extended to dealings with other members of the community as well.

Lander’s reliance upon section 16 of the Human Rights Act was given short shrift.

imageHe appealed to the ACT Supreme Court Court of Appeal.

On September 11, in a unanimous decision, Higgins CJ (seen here), with Justices Malcolm Gray and Richard Refshauge upheld the appeal.

The appeal judges said that rule 24 did not operate as widely as the tribunal had found and thought it highly relevant that the impugned comments were not made in a public forum, but rather to a departmental head concerning a matter that was properly the concern of the department and, indeed, of its minister.

The Court of Appeal found there was a fundamental difference between dealings with other practitioners and dealings with third parties,

In dealing with third parties …

“it may be necessary to write a letter of demand accusing the recipient of fraud or other misconduct… Nor is the mere fact that the accusation is made robustly a valid cause for complaint.”

The appeal court noted that Lander’s honesty in making the complaint was never impugned:

“He was not alleged to have made any accusation that he knew to be untrue or for which he knew there was no reasonable basis. He was not alleged to have had a collateral purpose to be served by the accusations he made.”

Higgins, Gray and Refshauge rejected the notion that there was a general obligation on a solicitor to refrain from acts which recipients might find to be discourteous.

The judges also pointed out that, if the criticisms that Lander levelled at the department were true, or at least fair comment as understood in defamation law, “it could not be misconduct or unsatisfactory conduct to draw them to the attention of the relevant officers of the department and its minister”.

The appeal was upheld with costs, no doubt to the grave distress of Bateman and his sensitive work mates at the Department of Education.

Freedom of speech has been restored in the ACT and lawyers are once again free to criticise government departments without fear of being punished by the ACT Law Society and sent back to law school.

Graham Hryce reporting

Letters

Conduct of your agency and Mr Boutsis

October 24, 2006 (by email)

Your Department has a long history of failing to communicate at all or to communicate substantively and honestly.

This has been documented in hundreds of cases and shows no sign of improvement.

I act for Mr Boutsis.In my brief encounters with officers of your agency, they have been rude, unhelpful, obsessive and compulsive in relation to their own ego and their own self-importance and otherwise unresponsive.

This persists to the present time.

Mr Boutsis has been the subject of a recommendation which your Department has that he be promptly medically retired and despite the fact that your Department has had that report for about six weeks, it has not communicated to Mr Boutsis; or, at his specific request, to his solicitor, this firm, what it is doing about having him medically retired or arranging pre-retirement payment or anything else.

This is consistent as we say with years of malpractice and maladministration by your organisation. It appears that nothing will change that conduct and that the Department bears grudges against people who engage lawyers, particularly competent ones.

We ask that you please immediately summons the people in your case management area and ask them why it is that they have refused to correspond with me in accordance with Mr Boutsis’ directions and requests, refused to provide reports to me, refused to progress his retirement and otherwise behaved in a shamefully non-communicative and disinterested fashion.The practices of people in your case management area are by and large consistent with Mr Boutsis and my experiences and were documented in several Commonwealth AAT proceedings including that of my wife.

My wife remains a teacher in your system and I ask that no recriminations be taken against her because her husband happens to be a solicitor acting for teachers.

Would you please respond to this correspondence, a copy of which is being forwarded to your Minister who seems to mistakenly believe that there is no cause for any intervention or concern with the conduct of your Department.

Thank you,

Yours sincerely
LANDER & CO
David Lander

cc. Minister ACT Department of Education, Youth and Family Services
cc. Client

Reply from Michael Bateman, December 7, 2006

Dear Mr Lander

Thank you for your letter of 24 October 2006 to the Chief Executive, DrMichele Bruniges about processes surrounding the invalidity retirement of Mr Boutsis. Dr Bruniges has asked me to reply to your letter on her behalf.

The issues raised in your letter have been investigated.

The department received the report of Health Services Australia recommending the invalidity retirement for Mr Boutsis in late September 2006.Relevant Comsuper papers were included which allowed the department to prepare a case for Comsuper, seeking approval for invalidity retirement for Mr Boutsis.The department prepared the submission and forwarded this case to Comsuper on 12 October 2006.Approval for invalidity retirement and pre-assessment payments have been received from Comsuper.

Regarding the issue of providing medical reports to you.Mr Boutsis requested an earlier medical report in June 2006 be sent to you or himself.The department replied to Mr Boutsis that such medical reports were only forwarded to the treating medical practitioner and promised to send the report to the treating specialist.This was promptly sent to the doctor that same day.

I am advised that the invalidity retirement of your client, Mr Boutsis is proceeding through Comsuper.

In your letter you have also made a number of general statements about the Department of Education and Training and its staff failing to communicate, being dishonest, rude, unhelpful, obsessive and compulsive, bearing grudges against people who engage lawyers, as well as general allegations of ‘malpractice’ and ‘maladministration’. Your comments are totally inappropriate and it is impossible to respond in any meaningful way to such generalised and unsubstantiated allegations.Nonetheless, the Department of Education and Training wholly rejects those allegations.

You have also implied that the Department of Education and Training may engage in recriminations towards your wife, who is a teacher in the Territory, an employee of the department, and who has no involvement in Mr Boutsis’ case.The department takes your implication very seriously.To suggest that this department or any of its officers would engage in such behaviour is totally inappropriate and is rejected in the strongest possible terms.

It is my intention to refer your letter to the ACT Law Society for investigation as to whether your conduct has breached the standards expected from a legal practitioner.

Yours sincerely,

Michael Bateman
Director
Human Resources

See Court of Appeal reasons for further correspondence