We are charged by our ethical rules and our fiduciary duties to act in our client’s best interests. We are their advocates, and they are our bread and butter.

But it is not client advocacy at all costs, is it?

We’ve all come across someone who takes every point, fights every suggestion and never concedes an inch. We’ve also all seen what that does to our client’s invoices.

The reality is what is in the best interests for our clients is the efficient resolution of the real issues in dispute. It keeps costs down; it lets people move on emotionally and it focuses on the areas that will deliver maximum value to our clients.

We are also charged by our ethical rules to be honest and courteous in all of our dealings and, in a lesser-known rule (rule 34 ASCR), to avoid tactics that are primarily designed to frustrate or embarrass another person (including another solicitor).

Less than courteous dealings take innumerably varied forms in terms of tone, actions and words used.

The Court Legal Profession Complaints Committee v in de Braekt [2013] WASC 124 found that the solicitor’s tone in communicating with prosecutors formed part of a series of incidents that warranted their name from being removed from the roll of lawyers.

LSJ Media, the online journal of the NSW Law Society, published an article in 2022 discouraging describing our colleagues as disingenuous, mischievous, egregious, misleading, specious, inept (or demonstrating ineptitude).

Hearsay published an article in 2023 commenting that swamping an opponent with numerous letters or emails without a valid reason may, itself, constitute discourteous behaviour. Swamping a colleague with phone calls necessarily falls into the same category. Depending on the content of the communications, the need for repeated (and perhaps unanswered) communications in short succession and the surrounding context, such communications may be considered conduct primarily designed to frustrate another person (contrary to rule 34).

A properly organised solicitor is, the majority of the time, likely to need to send only one unanswered communication (excluding well-spaced follow-ups) insofar as a single matter or topic is concerned which usually does not need a response for several days (allowing for all practitioners having various demands on their time).

Whilst the value of courteous and civil communication has been extolled previously, the simplest expression may be “you catch more flies with honey than vinegar”.

Author: Ben O'Brien