How can I disengage from discourteous communications?

Solicitors have a duty to be courteous in the course of legal proceedings1 even in the case of extreme provocation, and the use of insulting, offensive or discourteous language towards other practitioners is likely to bring the profession into disrepute.2

In order to avoid an ill-advised email and the consequences thereof, prudent practitioners need to recognise the signs that indicate things are getting out of hand, and disengage. Commenting on an opponent’s legal abilities, or taking nit-picking issue with the grammar, spelling or writing style of an opponent is a strong indication that focus has been lost.

Should a practitioner recognise these behaviours, they should disengage and take action to bring themselves back into a frame of mind likely to best serve their client’s interests (and indeed their own). One method is to implement the five ‘R’s:

  • Recover/Relax: get away from the keyboard and de-stress-meditate, walk around the block, phone a friend-whatever you need to calm yourself down
  • Reflect: think about the exchange, your part in in and the consequences (good and bad) of any response you might make
  • Review: go back over the exchange, including any draft responses you have made, and make sure you are responding in a way that genuinely assists your client (rather than simply soothing your wounded pride or striking back at your opponent)
  • Refer: if you can, refer any proposed response to a work colleague/mentor whose lack of direct involvement will allow them to provide a dispassionate perspective
  • Redact: alter your draft based on the outcomes of this process

If all else fails and you do hit ‘send’ on the wrong email, apologise and withdraw the email immediately; in addition to being relevant in any disciplinary proceedings,3 it is likely the opposing practitioner will accept the apology and the matter might end there. Getting the matter back on track will be in the best interests of your client and is more important than your ego.

Remaining courteous throughout a matter, regardless of the provocation, will always be in your-and your client’s-best interests. It is well to remember the words of the Utah Bar Journal as quoted by the Supreme Court of the ACT in David Lander v Council of the Law Society of the Australian Capital Territory:4

A lawyer can be firm and tough-minded while being unfailingly courteous. Indeed, there is a 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 to respond in kind to personal insult.5

1 Australian Solicitors Conduct Rules 2012 (Qld), r 4.1.2.

2 Legal Services Commissioner v Baker (No 2) [2006] 2 Qd R 249.

3 Legal Services Commissioner v Cooper [2011] QCAT 209.

4 [2009] ACTSC 117.

5 [2009] ACTSC 117, [22].