Lawyers, Language and Legal Professional Standards: Legal Services Commissioner V. Turley

Article excerpt

I Introduction

Lawyers have a duty to cooperate with other legal practitioners, with clients and with others they deal with in practice, and to treat them with courtesy. The duty includes the expectation that a practitioner will not use irresponsible, provocative, offensive or intimidatory language during court proceedings or in any other public forum. The Roman poet Horace is said to have noted that 'lawyers are men who hire out their words and anger'. The modern lawyer too will get angry. Sometimes it is feigned, but genuine anger is still inevitable in a role that necessarily involves conflict. But what the lawyer does with his or her anger or how the lawyer gives expression to it is, as it is for any person, a matter for ethical evaluation.

The use of poor or aggressive language is an area where discipline applications seem to be on the rise. As is evident from the analyses of courts and tribunals, this is much more than a simple question of decorum. It can raise significant questions regarding the place of the lawyer in the administration of justice. This became evident in the decision of the Legal Practice Tribunal in Legal Services Commissioner v Turley (1) in which a solicitor was charged with making 'scandalous and offensive submissions' during court proceedings and using an intimidatory approach to a judicial officer. Drawing on the principles expressed in disciplinary proceedings case law in this area, the article will consider some of the issues arising in relation to a legal practitioner's use of offensive language or intimidatory conduct.

II Legal Services Commissioner v Turley

A Charges against the legal practitioner

In this case, the respondent solicitor, Mr Turley, was charged with two breaches of professional standards.

The first charge was based on comments made by Mr Turley in the course of representing a mother in child protection proceedings in the Magistrates Court at Gladstone. In his first comment, Mr Turley described the service of an affidavit upon his client, presumably by the Department of Child Safety, as 'the lowest act of any department that this office has seen. Certainly the lowest act I have seen in 35 years by the department'. He further commented that 'one cannot trust the department. It is almost staffed by animals'. Next, Mr Turley described an order that his client's children undergo psychological treatment as one which asked 'the client, my client, to let her children be killed or destroyed by' the relevant doctor. Finally, he stated that 'the children should be returned to my client and not put in the hands of these people who are almost like a (coven) of witches'. (2)

The second charge concerned a letter written by Mr Turley and sent to the presiding magistrate three days after the hearing. During the hearing, the magistrate had warned the solicitor, saying 'If you continue using language like that I will report you to the Law Society'. Mr Turley claimed in his letter that he was concerned by 'threats' that had been made by the magistrate during the hearing and considered that the threats constituted 'a threat with menaces not only arising in this case but in other matters into the future'. Moreover, he stated in the letter, 'such was the degree of impropriety of that threat that you should disqualify yourself from further conduct of this matter'. (3)

B Tribunal reasons and orders

The Legal Practice Tribunal found that '[t]he use of grossly offensive language in the course of Court proceedings and an intimidatory approach to a judicial officer based on an untenable interpretation of what had occurred in the Court proceedings [were] matters of some gravity'. (4)

In relation to the second charge, the Tribunal confirmed that Mr Turley's letter was 'an improper ex parte communication with the Bench' and that his contention was untenable: the magistrate had made a 'reasonable attempt to pull [Mr Turley] into line' and should not have been subjected to the implied intimidation in the letter nor to pressure to disqualify himself when there was simply no justification for him to do so. …