34. Dealing with other persons

1. A solicitor must not in any action or communication associated with representing a client:
   1. make any statement to another person:
      1. which grossly exceeds the legitimate assertion of the rights or entitlements of the solicitor's client, and
      2. which misleads or intimidates the other person,
   2. threaten the institution of a criminal or disciplinary complaint against the other person if a civil liability to the solicitor's client is not satisfied; or
   3. use tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frustrate another person.
2. In the conduct or promotion of a solicitor's practice, the solicitor must not seek instructions for the provision of legal services in a manner likely to oppress or harass a person who, by reason of some recent trauma or injury, or other circumstances, is, or might reasonably be expected to be, at a significant disadvantage in dealing with the solicitor at the time when the instructions are sought.

Commentary

34.1.1 Exceeding the legitimate assertion of rights. A solicitor should bear Rule 34.1.1 in mind at the earliest stages of his or her involvement, such as in preparing a letter of demand. The early impact or advantage of a bold demand must be tempered by ensuring any statement does not grossly exceed the legitimate assertion of the client's rights or entitlement and does not mislead or intimidate the other person. Examples of overstepping the mark may include:

Claiming that the costs of the letter of demand will be recoverable as costs in any proceedings to recover the debt (ACCC v Sampson [2011] FCA 1165 – consent order);

In Legal Practice Complaints Committee v Segler [2009] WASAT 91, a solicitor's letter demanded immediate payment of a judgment debt, notwithstanding that the Magistrate had allowed seven days for payment. The letter amounted to unprofessional conduct;

Collection of debts barred by the Limitation of Actions Act must be conducted in a way which does not involve misrepresenting to the debtor the extent of the creditor's right to collect the debt nor in a manner which amounts to unconscionable conduct in breach of consumer protection legislation. An example of circumstances in which it was held that, having regard to the debtor's personal and financial circumstances and the manner in which she was contacted, a clerk in a debt collection capacity was guilty of unconscionable conduct is provided by Collection House v Taylor [2004] VSC 49.

34.1.2 Threatening criminal proceedings. Rule 34.1.2 has received judicial consideration in both civil and disciplinary cases. In Legal Services Commissioner v Sing [2007] LPT 004 the issue related to the extent to which (at [2]) 'a solicitor may ethically go in raising the prospect of recourse to criminal process with a view to encouraging the discharge of civil liability.’ At the time of the disciplinary complaint, this question had not arisen in Queensland (at [2]) ‘for more than a century.' The threats capable of being in breach of professional standards include:

• Threats to launch criminal proceedings if civil satisfaction not made out: Coogan [1914] St R Qd 197.
• Threats to institute a prosecution: Re Swanwick; ex parte Bain [1883] 1 QLJ 117; Chubb [1887] 3 QLJ 35.

In Sing, the respondent solicitor and his wife rented out commercial premises to the complainant's company. Cheques in payment of the bond and first month's rent were dishonoured, but those amounts were later paid. The respondent then wrote to the complainant "out of frustration", threatening that if future payments of rent were not made, he would write to the police requesting investigation of the circumstances in which the dishonoured cheques had been issued. Chief Justice de Jersey held that there had been no breach of the Criminal Code to the extent that it prohibits soliciting a benefit in return for stifling a prosecution. The letter would therefore have been unobjectionable if written by a non-lawyer. The solicitor had not made any improper use of his position as a solicitor and the application was dismissed. The dividing line between legitimate pressure and improper intimidation is difficult to draw, but the following examples may cross this line:

• A threat to institute criminal proceedings;
• The use of the solicitor's professional position to intimidate the addressee. Pressure is not impermissible by itself provided it is carried out with reasonable restraint and in a measured way; and
• Threats to make a report to the police or professional body if a person does not discharge their legal obligations. It is suggested that a solicitor should err on the side of caution by avoiding any threat of a report to the police or professional body if a person does not discharge their legal obligations. This ensures that the solicitor is not at risk of committing the offence of compounding an indictable offence pursuant to the Criminal Code (Qld) s 133(1). Any negotiations, mediations, discussions or communications should be undertaken in accordance with the exceptions set out in s 133(5).

34.1.3  Tactics to embarrass or frustrate. See Rule 28 for conduct that may be of the kind addressed by Rule 34.1.3.