Legal Practitioner communicating with client of another solicitor

Legal Practitioner communicating with client of another solicitor - circumstances providing explanation - conduct amounting to unprofessional conduct

The Council of the Law Society of NSW v Byrnes [2016] NSWCATOD 64 (23 May 2016)

In this case, the applicant filed an Application for Disciplinary Findings and Orders against the respondent, including a finding that the solicitor had engaged in unsatisfactory professional conduct.

The complaint arose out of communication from the respondent’s office manager to the husband in family law proceedings. The grounds of complaints were:

1. That the Respondent instructed his office manager to communicate with a client, or the employ of a

client, of another solicitor;

2. The Respondent failed to supervise the office manager in that she breached confidentiality in a

conversation with Kathy Tierney on 18 January 2013;

3. That the Respondent communicated with the client of another solicitor and threatened the husband

with the institution of recovery action.

The Tribunal noted the rules in relation to Confidentiality and Communicating with another practitioner’s client contained in the Revised Professional Conduct and Practice Rules 1995. The respondent acknowledged he was liable for unsatisfactory professional conduct due to his instruction to the office manager to communicate with the husband, a client of another solicitor and by forwarding an email of 18 January 2013.

The respondent raised the background of the matrimonial proceedings, the non-compliance with court orders, false affidavits by the husband and the exasperation of not receiving satisfactory information from the husband’s solicitor as mitigating factors. The Tribunal also took into account the professional history and many references, as well as a letter of apology sent by the respondent to the complainant.

The Tribunal noted that the proceedings are concerned with the protection of the public not punishment of the practitioner: Law Society of New South Wales v Walsh [1997] NSWCA 185. The Tribunal was satisfied that the events of 18 January 2013 occurred in the culmination of prolonged and difficult litigation and the lack of communication from the husband’s solicitor. Taking into account all of the circumstances, the Tribunal found that the respondent breached Rules 2 and 31 of the Revised Professional Conduct and Practice Rules 1995 by causing his office manager to communicate with the secretary of the client of another solicitor and engaged in unprofessional conduct: s496 of the Legal Profession Act 2004 (NSW). It was ordered that the respondent pay the costs of the applicant.