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Ethical practitioners do not assert their client has rights they do not…

- - - - abusive or inappropriate language including personal attacks, insults, demeaning or humiliating comments;
      - shouting, aggressive and intimidating behaviour;
      - persistent, unwarranted criticisms;
      - baseless accusations (such as dishonesty);
      - threats that have no basis at law (such as threats to fine or imprison for contempt, where there is clearly no basis for doing so, proper processes have not been followed or the court or tribunal does not possess such powers);
      - comments about an advocate’s physical appearance or attire (where the person is otherwise dressed in accordance with generally accepted standards for court dress);
      - comments which would in any other setting amount to sexual harassment;
      - comments which are discriminatory, such as remarks about race, gender, sexual preference, a disability or religion; or
      - other behaviours which amount to an abuse of the judicial officer’s power.
- - - - 1996 Legals ervice commission filed complaint alleging taht appelant was guilty of professional misconduct.
      - This is claim for judicial review.
      - Main instance/ question is whether there is misconduct in threatening to bring proceedings. If object of proceedings within scope of remedy, or a consequence fo obtaining remedy there is no improprietry.
      - Also, misconduct via giving inaccurate evidence- successfully appealedc as no evidence that appelant KNEW of inaccuracy.
      - 175 pages of complaints including threatening with defamation in an attempt to intimidate a witness, conspiring with client to avoid summons and improper pressure on opposing lawyers
      - Out of time (stat lim) but commissioner exercised disrection to accept the complaint out of time.
      - The claimant is a legal practitioner and a partner in the firm of solicitors formerly known as Messrs Dawson Waldron ("DW")
      - Ground 1. Carson conduct in approaching o/p lawyers improper. was an attempt to intimidate witnesses. Threatening Metcalf with defamation without legal basis and issued for an ulterior and improper purpose
      - Ground 4. The claimant improperly attempted to intimidate Metcalf by threatening to sue him for defamation as a result of the report he had written supporting the application by Rajski for adjournment of proceedings before Powell J, the purpose of the intimidation being to ensure that Metcalf withdrew his professional support for Rajski and Raybos.unsel for the claimant also argued that, in relation to grounds 5 and 6 of the Information (concerning the threat to sue Metcalf, and the allegedly false evidence he gave in the Fairfax proceedings) the claimant was acting in a personal, not professional, capacity. He was the litigant in the latter, the putative litigant in the former.
      - Ground 2. Attempts to terminate legal aid grant. Defamation proceedings had no substance, and their primary motive was to pressure Carneys to withdraw from the case and bring about the loss of the legal aid grant, and that the action was improper and an abuse of process;
      - Ground 3. attempted to intimidate Carneys by the commencement of the Carneys defamation proceedings, by subsequent threats to amend the claims to increase the quantum of damages claimed, and by threats to seek an order that Carneys personally pay costs of an adjournment granted by the Chief Justice, the alleged purpose of the intimidation being to cause Carneys to cease their representation of Rajski and Raybos.
    - - Obligation to observe rules?
        
        he substance of the complaint and invited the claimant to provide his "views". If that were all the information the claimant received, I would be of the opinion that he had not been properly informed of the nature of the case against him. However, the claimant made a detailed response on 6 February 1995. The deficiency in the original notification was remedied when, on 28 February 1995, the LSC provided him with a copy of the original complaint book, and Rajski's 21 February response to the claimant's letter of 6 February. He invited final submissions within a specified time and, at the request of the claimant, extended that time. The claimant again responded, in a letter (24 March 1995) which demonstrated that (as one would expect of a solicitor of his standing and experience) he was well aware of the nature of the task that confronted him. (para 91)
        
        The law has now developed to a point where it may be accepted that there is a common law duty to act fairly (para 85)
      - t "in a case where his contempt amounts to professional misconduct, he may be struck off". It is, in my view, a question of properly assessing the conduct said to constitute contempt for the purpose of determining whether it may properly be characterised as professional misconduct, and then if it is, determining what consequences ought follow. Not every act of contempt will amount to professional misconduct but the converse, inherent in the argument - that is, that no act of contempt by a legal practitioner should be dealt with as professional misconduct - certainly does not follow.
      - he conduct of a legal practitioner cannot be so rigidly compartmentalised, his/her behaviour in a personal capacity sealed off from his/her conduct in a professional capacity, as s127(1)(b) recognised. It is a matter for judgment in every case. I am satisfied that an unwarranted threat to sue, and the giving of untrue evidence in a legal proceeding, may, in appropriate circumstances, constitute professional misconduct.
      - In any event, the definition of "professional misconduct" in s127(4) makes clear, in para(b), that personal conduct may amount to professional misconduct (para 111)
      - The concepts of "professional misconduct" and unsatisfactory professional conduct" are separately defined in s127(1) and s127(2) respectively. It is unnecessary here to set out the definitions in full. Throughout Pt10, distinctions are drawn between the two concepts, showing that the legislature envisaged that they would be treated differently
      - It would be improper to attempt to persuade a witness in evidence to depart from his or her genuinely held recollection or observation of factual matters, or, where the witness's opinion is relevant, to depart from his or her genuinely held view. It is not necessarily improper to invite a witness to change evidence already given. It is quite legitimate for a party or a legal practitioner to invite a witness, whether expert or lay, to reconsider evidence already given, a statement already made, or an opinion already expressed, or to do so in the light of additional information or argument that might quite properly be put to the witness. A legal practitioner doing so, however, must exercise the utmost care to give no suggestion that he or she is seeking or proposing to have the witness untruthfully change his or her evidence.
      - stretching the language used by the claimant to its outer limits, it might be possible to read such pressure into what he said to Wood. However, the task of the Tribunal is not to place the very worst, no matter how tortured, construction on what is said, but to determine, firstly the true intent with which the words were spoken, and, secondly, if necessary, what the words would have meant to a reasonable listener in the position, in this case, of Wood.
- - - - As to the strong advice given to him about his prospects (or lack of prospects) of an acquittal, Mullins J cited this passage from the judgment of Brennan, Toohey and McHugh JJ in Meissner:
      - Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.38
      - I agree that the strong advice as to prospects, of itself, did not make these pleas of guilty involuntary ones. However, there was also the unjustified threat by the lawyers to withdraw if he changed his instructions. That had the consequence of depriving the applicant of the option of defending the charges, with the benefit of legal representation, upon the factual position which he claimed to be true. It is inherently likely that this threat, at least in part, induced him to plead guilty. Mullins J did not find otherwise.
- - - - On 22 May 2017 the Queensland Civil and Administrative Tribunal (QCAT) determined that the appellant’s name was to be removed from the roll of solicitors.