Incompetence and Discourteous Emails Result in Disciplinary Sanction

In Legal Services and Complaints Committee v Barber [2024] VR 52, the State Administrative Tribunal of Western Australia (Tribunal) found that deficiencies in case preparation and discourteous professional correspondence attracted disciplinary sanction. Mr Barber, a director of a traffic and criminal law firm in Perth, was found to have engaged in both professional misconduct and unsatisfactory professional conduct arising from incorrect sentencing advice to a client, inadequate trial preparation and discourteous communications with both counsel and Legal Aid.

Introduction

Mr Barber faced disciplinary proceedings arising from three matters. The first concerned his advice to his client in a criminal case, which resulted in a plea being entered without an appreciation that two charges carried mandatory minimum sentences. The second involved deficiencies in trial preparation that fell short of the competence and diligence expected of a reasonably competent practitioner. The third involved discourteous email exchanges with both counsel briefed on the matter and Legal Aid staff.

Sentencing Error

The professional misconduct finding arose from Mr Barber negotiating a plea deal for a client charged with multiple offences, including wounding with intent to cause grievous bodily harm and aggravated indecent assault. It was only after the plea deal had been negotiated that Mr Barber realised that those two counts each carried mandatory minimum sentences – one being 15 years.

By that time, the client had entered guilty pleas and had been advised to expect a total sentence of between four and six years. When the matter came before the District Court, the client received 15 years’ imprisonment. The Court of Appeal later set aside the judgments of conviction and sentences, subject to conditions. 

The Tribunal found that Mr Barber’s failure to understand the mandatory minimum terms of imprisonment, to properly advise his client and to withdraw when his own interests came into conflict with the client’s, constituted a substantial failure to reach or maintain a reasonable standard of competence and diligence within the meaning of sections 403(a) and 438 of the Legal Profession Act 2008 (WA) (LP Act).

The Statement of Agreed Facts recorded that by continuing to represent the client, there was a risk that Mr Barber would seek to resolve the matter “in a manner which was least embarrassing to himself”.

Unsatisfactory Preparation for Trial

In a separate matter, Mr Barber acted for a client charged with murder. The Tribunal found that he had engaged in unsatisfactory professional conduct under sections 403(a) and 438 of the LP Act.

The findings arose from Mr Barber’s failure to obtain a proof of evidence from his client, to review key medical notes and court reports relating to the history of the client’s mental health (relevant to a potential defence of unsoundness of mind and to the impact of alcohol on her condition) and to properly consider the veracity of instructions from the client to counsel briefed in the matter, about her recollection of her consumption of alcohol and the circumstances surrounding the deceased’s death.

Discourteous Emails

The Tribunal also found that, whilst acting in the same matter, Mr Barber engaged in further unsatisfactory professional conduct by sending discourteous emails to counsel he had briefed in the matter and to a Legal Aid officer.

Mr Barber criticised counsel’s approach to the case, suggesting it had become “unhelpfully complex” and asserting that counsel had “done the opposite” of his instructions:

• “I confess: I still haven’t read your earlier emails in detail because I have had too much pain today already. Giving the client the maximum opportunity to not be convicted of murder does NOT mean, in my respectful opinion, that we chase everything a client has told us to the bitter end. Sometimes, it is important to STOP and think. And even not ask certain questions, especially when those questions have already been asked – and answered – ad naseum (sic). I am sorry that I wasn’t there today, because I think I may have been able to draw you back from your determination to pursue something well beyond where it needs or needed to go. (And I fully understand that you would say that this was necessary; we will have to agree to disagree about this.). I have huge respect for you as a person and as a lawyer. However I am not sure about the direction this is going/has gone. I think it’s gone from being a relatively simple matter (albeit one with an acute issue) to one of unhelpful complexity, with far greater risk of the ‘wrong’ outcome”;

• “I see that you have dug in and doubled down. Fine. It is far too late to change courses now. I merely note that in this matter, you have seemingly rather deliberately and quite unstoppably done the opposite of what I requested when I instructed you. This matter is now what it is. It will stand – or fall – on that basis. We do need to have a discussion in due course. I look forward to that.” 

Then, after Legal Aid received a letter of complaint from the client’s treating psychologist expressing concern that Mr Barber was not providing a proper defence to the client, Legal Aid requested a copy of Mr Barber’s correspondence with counsel. Mr Barber responded in strongly worded terms, describing the request as “scurrilous” and “offensive”:

• “I do not accept that you have any valid reason whatsoever for seeking information from [AB]. The suggestion that you had to do so ‘to ensure [Legal Aid] has all available information’ is scurrilous, offensive, and insulting. This is wrong, pure and simple. Your request should never have been made to [AB]. The damage you have likely done in making this request will be difficult to overcome, and it is utterly unnecessary and entirely inappropriate. I have also noted that you have given me no explanation for the decision to refer this matter to the Director of Legal Aid”.

Conclusion

The Tribunal ultimately found that Mr Barber’s conduct amounted to both professional misconduct and unsatisfactory professional conduct. Orders included a public reprimand, a fine of $12,500.00 and costs.

The case demonstrates that shortcomings in legal preparation or discourtesy in written communication can give rise to disciplinary sanction.

The Statement of Agreed Facts is available here.