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Hellfire Club
2 October, 2009  
Lander case - revisited

New president of the ACT Law Society rushes to justify failed attempt to discipline feisty letter-writing solicitor … Fresh fuel on the flames

imageThe Canberra Times carried a letter (September 29) from the newly elected President of the ACT Law Society, a public service lawyer named Athol Opas, 34.

“David Landers (‘Lawyer wins right to criticise unhelpful bureaucrats’, September 25, p.1) was always entitled to criticise the ACT Department of Education in the interests of his client. It was the discourteous and provocative manner in which Mr Lander did so which led the Law Society to initiate disciplinary proceedings against Mr Lander.

The Law Society, as professional regulator of lawyers in Canberra, remains of the view that Mr Lander’s correspondence was discourteous and provocative to such extreme that it breached solicitors’ professional obligations.

The Law Society disagrees with the recent Supreme Court decision and is considering its options. Whilst Canberrans should expect to receive strong advocacy from their legal practitioner, Canberrans should not expect to receive lawyers’ correspondence as provocative and inflammatory as Mr Landers to the Department.

Athol Opas, president, ACT Law Society.”

Apart from misspelling (it’s Lander, not Landers) and the clunky sentence construction, Opas has gone off half-cocked.

In paras 58- 60 of the ACT Court of Appeal decision (a unanimous one) the court says:

“In our view, the real issue was not that the solicitor made the comments complained of in the course of correspondence concerning his client’s claim, but whether the accusations and criticisms he made were false or without foundation, to his knowledge. If that were to be made out, then the finding of unsatisfactory professional conduct should be upheld. However, it seems to me that particular issue was not addressed by the [Legal Practitioners Disciplinary] Tribunal.

In other words, the true complaint should have been in terms of the kind of misconduct alleged in Clyne’s case, not in terms of a breach of Rule 25 which was, on its face, inapplicable.

The hearing did not address the correct issue. The finding of unsatisfactory professional conduct was, therefore, based on an erroneous assumption and must be set aside as must be the consequential orders on penalty.”

Notwithstanding Young Athol’s protestations, the ACT Law Society is smarting under a significant costs order, for which the membership will have to fork-up.

Trying to deflect the blame on the judiciary is poor form.

With a newly elected law society president and executive made up almost exclusively of public service lawyers, one can be forgiven for thinking this smacks of looking after the bureaucratic “mates” whose sensitivities were so wounded by Mr Lander’s frank and fearless correspondence.

* * *

Here’s Lander’s letter to the ACT Department of Education:

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
David Lander

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

See Graham Hryce’s earlier report on Lander’s case


Reader Comments

Posted by: Anonymous
Date: October 1, 2009, 8:58 am

Precisely what "options" could this bastion of citizens' rights be thinking of? It looks as if it was a bench of 3 who turfed out the judgement of the tribunal so surely the boy President must be considering application for special leave to appeal? Lawyers in the ACT defy their self-regulatory body at their peril, apparently, for their wrath knows no bounds. Come the McLelland revolution of course we will have no more of this silly local ego-driven "regulation".
Posted by: Anonymous
Date: October 4, 2009, 9:01 pm

Those who believe they have suffered at the hands of bureaucracies will find it extremely distressing to think the ACT Law Society believes the very nebulous concept of 'discourtesy' to be more important than a robust and fearless criticism in support of the ordinary person.
Posted by: Anonymous
Date: November 2, 2009, 1:30 am

I don't see how that letter is discourteous. It is effective active language used when all of the gentle prods that proceeded it have failed.