In a civil dispute, can I threaten to report the other party to the police if they don’t comply with my client’s demands?
You can, on instructions, but you need to be very careful how you do this, as was stressed by the Chief Justice sitting in the Legal Practice Tribunal in the case of Legal Services Commissioner v Sing  LPT 004. In that case, the LSC unsuccessfully prosecuted Mr Sing for sending a letter to a tenant on behalf of his wife, the landlord, as her solicitor. The letter threatened that if the tenant didn’t immediately pay the rent due, Mr Sing would send a letter to the police inviting the police to investigate the circumstances surrounding previous dishonoured rent cheques. Mr Sing also enclosed with the letter a copy of the proposed letter to the police. Usefully, the wording of the letters to the tenant and the police is set out in the judgment.
The main points from this case are that:
- You must not threaten the institution of criminal proceedings. The Tribunal considered that Mr Sing did not, that he stopped short at foreshadowing inviting the police to investigate the possible commission of an offence, and that he did not actually threaten to launch a prosecution.
- You must take care that you do not use your position as a solicitor to intimidate the addressee. The judgment stated that there is nothing wrong with your bringing pressure to bear on someone to discharge their legal obligations, provided that you act with reasonable restraint and in a measured way. The issue is whether you unfairly use your professional position to reinforce the application of pressure, so as to overreach or intimidate the addressee. (No doubt the nature of the addressee will be relevant to these questions, that is whether they are an unrepresented person or another solicitor). The Tribunal was not satisfied that the pressure Mr Sing brought to bear was improper or unfair. The judgment suggests that you should err on the side of caution and be extremely careful before resorting to even arguably threatening conduct. It also suggests that you stick to stating matters of fact and not make assertions as to legal conclusion or judgment.
There was an article about this case by Neil Watt Walking the line – when does aggressive advocacy become unprofessional conduct? in Proctor August 2007 at pp.35-36.
This case was decided before the Australian Solicitors Conduct Rules 2012 ('ASCR'), Rule 34.1.2 of which addresses the first of the above points in the case, that you must not threaten the institution of criminal or disciplinary proceedings against the other party if a civil liability to your client is not satisfied.
The safest course is still to avoid any threat of a report to the police or a professional body if a demand is not met. It is also essential to avoid any agreement to suppress criminal proceedings (which would be contrary to the Criminal Code).
Legal Practitioners Complaints Committee v Segler  WASAT 91 is an interesting case from Western Australia involving these issues.