No.31 Courtesy in communications

1.    Introduction

1.1.    Who should read this Guidance Statement?

This Guidance Statement is for solicitors and law practices.

1.2.    What is the issue?

The foundation of legal practice is communication, regardless of the area of law in which one practises. Solicitors must be able to communicate clearly and effectively.

Fundamental to that foundation is the ability to maintain courtesy and cordial relations when communicating, even when dealing with highly emotive matters or representing deeply entrenched clients where strong animosity exists. In particular, this Guidance Statement deals with communications with colleagues.

1.3.    Status of this Guidance Statement

This Guidance Statement is issued by the Queensland Law Society (‘QLS’) Ethics and Practice Centre for the use and benefit of solicitors.

This Guidance Statement does not have any legislative or statutory effect. By having regard to the content of this Guidance Statement it may be easier for you to account for your actions if a complaint is later made to the Legal Services Commission.

This Guidance Statement is not legal advice, nor will it necessarily provide a defence to complaints of unsatisfactory professional conduct or professional misconduct. 

This Guidance Statement represents a standard of good practice and is endorsed by the QLS Ethics Committee.

2.    Ethical principles

ASCR  

Rules 4, 5, 21.2, 22.1, 32 and 34.1 apply to this Guidance Statement.

These Rules establish a professional obligation on all solicitors to communicate with civility and courtesy.

3.    Courtesy in communications 

3.1.    Professionalism

The fundamental duties expressly state that all solicitors should act with honesty and courtesy in the course of legal practice and this extends to all communications with the court, clients, community and colleagues. Civility and professional courtesy extend beyond etiquette and manners. They are professional obligations that must be observed.1 This is not always easy if your opponent is engaging in discourteous conduct or your client expects you to share their personal antipathy but solicitors should maintain “dignified restraint”2 – client acrimony presents no justification for animosity towards an opposing colleague.3 

3.2.    Honesty and accuracy

Rule 22.1 expressly states that a solicitor is not to knowingly make a false statement to an opponent and it has been held  that this extends to negotiations on a client’s behalf4 and misleading conduct by omission.

4.    Why do civility and courtesy matter?

There are many reasons why courtesy matters:

  • Incivility affects productivity as it impacts both creativity and motivation.5 
  • The resolution of conflict is more likely if professional courtesy is engaged.6 
  • Incivility leads away from the necessary understanding of the adversary’s position.
  • The receipt of an offensive communication diverts the solicitor from the task of responding to the actual issue and these diversions take time and involve expense to the client.
  • Incivility and rudeness is bad advocacy.7 
  • Such conduct brings the profession into disrepute8 and undermines the confidence of the public in the administration of justice.9  

5.    Professional duty owed to colleagues

Practitioners have a responsibility in their communications whether in writing or verbally not to:

  • engage in disparaging personal remarks, aggressive, provocative or offensive language;10 
  • make unsupported accusations against other solicitors;11 
  • discriminate, harass, bully, humiliate;12 
  • record a colleague without their express consent;13 
  • threaten opponents with personal costs or a disciplinary complaint as a trial tactic to discourage the opposing solicitor from proceeding with the matter;14 
  • allege impropriety against another solicitor unless it is made bona fide in the belief, on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it;15 
  • ignore a colleague’s communication or fail to respond in a timely manner;16  
  • communicate in any action or matter in representing a client by making any statement that grossly exceeds the legitimate assertion of the rights or entitlements of a client and which misleads or intimidates the other person;
  • threaten to institute criminal or disciplinary proceedings if a civil liability of a solicitor’s client is not satisfied;17 
  • use tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frustrate another person;18 
  • place a caller on speaker without advising and securing consent and identifying who is in the room listening.19  

6.    How to respond to discourtesy

Some strategies to consider when dealing with such discourteous communication:

  • Make clear to the client at the outset of the retainer that respect and civility with the opposing solicitor will ultimately prove more productive for them.
  • Resist personal animosity or client acrimony from clouding your judgment and professional work.
  • Do not respond immediately. Allow time for a considered response and do not fall into the trap of engaging in a heated exchange or discourteous communications. Consider what the court would think if they read your email.
  • Draft all of your correspondence as if it will be annexed in an affidavit and the court will be reading it.
  • Respond with dignified restraint. Remain courteous and respectful – take the ‘high ground’. As noted in Lander20 “A lawyer can be firm and tough-minded while being unfailingly courteous. Indeed, there is real power that comes from maintaining one’s dignity in the face of a tantrum, from returning courtesy for rudeness, from treating people respectfully who do not deserve respect and from refusing in kind to personal insult.”
  • Ask your opponent to call you back when they are ready to discuss the issue in a civil manner if they are aggressive or abusive. This often surprises colleagues and gives them an opportunity to reassess their behaviour, to cool down and hopefully come back to you in a more productive frame of mind. 
  • Respond to the relevant issues not the emotion being expressed. 
  • Consult with a trusted colleague or principal, an Ethics Solicitor (below) or a QLS Senior Counsellor on an appropriate response – they can provide some objectivity to a situation that may have become combative. 
  • Consider allowing a suitable colleague to read and provide some objective feedback on your response.
  • Occasionally it may be appropriate to ring your opponent and/or their principal to express your concerns over the tone of the communication. There may be times when an email has been poorly worded or there has been some miscommunication – a telephone call may provide an opportunity to clear up this issue rather than a series of emails being exchanged and descending into acrimony. 
  • If you anticipate a hostile meeting or conversation, it may assist having another (appropriate) person in the room or on the phone call (with everyone’s consent) as having a witness may de-escalate the situation.
  • Advise your opponent that should the lack of courtesy not be adequately addressed, you will raise your concerns with their superior (if that is an option). 
  • Consider LawCare or any other mental health service to provide additional emotional support as dealing with a high conflict person can be distressing.

7.    More Information

Solicitors are also referred to the Queensland Law Society, The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners, Queensland Law Society (2014).

Some other resources include:

For further assistance, please contact an Ethics Solicitor in the QLS Ethics and Practice Centre on 07 3842 5843 or ethics@qls.com.au or a QLS Senior Counsellor.

1 Justice Philip McMurdo, ‘Civility and Professional Courtesy’ (Speech, Queensland Law Society Symposium, 21 March 2014) 2 (‘McMurdo’). 

2 Dore v Barreau du Quebec [2012] 1 SCR 395.

3 Ibid.

4 G E Dal Pont, Lawyers’ Professional Responsibility (Thomas Reuters, 7th edition, 2021) 697 [21.155]; Legal Services Commissioner v Mullins [2006] LPT 12; Legal Services Commissioner v Garrett [2009] LPT 12.

5 Christine Porath and Christine Pearson, ‘Incivility at Work Takes its Toll’ (January – February 2013) Harvard Business Review.

6 McMurdo (n1) 4.

7 Ibid.

8 Victorian Legal Services Commissioner v McDonald (2019) 57 VR 186 (‘McDonald’).

9 Legal Services Commissioner v Winning [2015] QCAT 510.

10 Legal Profession Complaints Committee v in de Braekt (2012) 80 SR (WA) 134.

11 McDonald (n 8).

12 Australian Solicitor Conduct Rules 2012 rr 34, 42 (‘ASCR’).

13  QLS Council Ruling 2.11.

14 De Groot v Nominal Defendant [2005] NSWCA 61, [253].

15  ASCR (n 12) r 32.1.

16 Legal Services Commissioner v Gould [2016] QCAT 533.

17 ASCR (n 12) r 34.1.2

18 ASCR (n 12) r 34.1.3.

19 G E Dal Pont, Lawyers’ Professional Responsibility (Thomas Reuters, 7th edition, 2021) 743 [21.185].

20 Lander v Council of the Law Society of the Australian Capital Territory [2009] ACTSC 117, [24].