Professional Misconduct Finding Against Lawyer Attempting to have Witness Alter Prospective Evidence

In Victorian Legal Services Commissioner v Lennon [2024] VCAT 744 (6 August 2024), the Victorian Civil and Administrative Tribunal found the respondent solicitor guilty of professional misconduct in relation to what was found to be threatening conduct engaged in by the practitioner towards a prospective witness in a forthcoming hearing to which the lawyer’s former firm was a party.  The tribunal member wrote:

REASONS

1. This proceeding concerns charges of professional misconduct under the Legal Profession Uniform Law (Victoria) (‘Uniform Law’) brought by the Victorian Legal Services Commissioner (‘Commissioner’ or ‘VLSC’) against Mr Patrick Lennon (currently a non-practising lawyer) in relation to a series of text messages he sent to Mr Dimitrios (James) Podaridis between 8.05pm and 8.30pm on Friday 10 July 2020 (‘Text Messages’). Mr Podaridis was proposing to give evidence for the defendant in proceedings associated with the recovery of debts owed to Mr Lennon’s former legal practice, and it is alleged Mr Lennon made threats to discourage Mr Podaridis from giving that evidence (or to change it). The Text Messages (redacted to remove swear words) were as follows:

2. The context for the messages is that:

(a) Mr Podaridis (who was or had been a barrister) was to give evidence for his second cousin, Ms Maria Lantouris, the defendant in a civil trial in the County Court that was due to commence on the Monday (‘County Court Proceeding’). The plaintiffs in that proceeding (‘Plaintiffs’) were:

• Argyle Lending Pty Ltd (‘Argyle Lending’), a company owned by Mr Lennon’s wife; and
• Mr Lennon and Ms Nicola Mazzeo trading as Lennon Mazzeo Lawyers (‘LM Lawyers’).

(b) The Plaintiffs were seeking to recover the sum of $500,000 (plus interest) that they alleged Ms Lantouris had agreed to pay to resolve outstanding fees (of more than $800,000) owed by her brother (Dr Nicholas Sevdalis) to LM Lawyers for legal services it had rendered to him. The arrangements had been documented in a loan agreement between Argyle Lending and Ms Lantouris and a guarantee she gave in favour of Mr Lennon and Ms Mazzeo. Mr Lennon had prepared the loan documents and Ms Mazzeo had prepared the guarantee.

(c) Mr Podaridis had been involved in brokering the deal as between the Sevdalis family (i.e. Dr Sevdalis and Ms Lantouris) and the Plaintiffs. In the proceeding, the Plaintiffs contended that, when he received the loan agreement and guarantee, he was acting as agent for Ms Lantouris. This was in the context of her defence that there was uncertainty as to the terms of those documents.

(d) As he explained in his letter to Mr Aidan McCarthy (a VLSC investigator) dated 2 February 2023 (‘February 2023 Letter’), Mr Lennon believed that Mr Podaridis had ‘become disenchanted with the Sevdalis family’ and was ‘very much part of the plaintiffs’ camp rather than Ms Lantouris’s camp’ in the context of the litigation.[1] However, after Mr Derek Begg[2] — solicitor for the Plaintiffs — had proofed him, a decision was made not to call Mr Podaridis to give evidence for the Plaintiffs.[3]

(e) As a ‘courtesy’, Mr Podaridis had advised Mr Lennon that he had been asked to speak to one of the defendant’s counsel.[4]

(f) At 6.45pm on 10 July 2020, Mr Begg sent Mr Lennon an outline of the evidence that Mr Podaridis was proposing to give on behalf of Ms Lantouris.[5] By his own account, Mr Lennon says he was ‘furious with Mr Podaridis because he should have been a witness in the case and told the truth’.[6] He ‘los[t] [his] temper with Mr Podaridis and gave him a piece of [his] mind’.[7] He used ‘ugly swear words [to add] extra force to the abuse’ and suggests the messages were ‘nasty and calculated to offend’.[8]

3. The Commissioner’s Application for Orders dated 16 May 2023 (‘Application’) included 17 charges. However, at the hearing the Commissioner only pressed three of them (with the remaining alternative charges to fall away if the Tribunal found them proven). They can be broadly summarised in the following terms:

• in the course of legal practice, threatening a proposed witness to change or refrain from giving evidence (‘Charge 1’);(in the alternative to Charge 1) Mr Lennon, an officer of the Court and a Plaintiff in the County Court Proceeding, threatened a proposed witness to change or refrain from giving evidence
• (‘Charge 4’); and
• sending text messages which were likely to be (and were in fact) made public and bringing the profession into disrepute (‘Charge 16’).

4. While Mr Lennon did not participate in the hearing,[9] in the February 2023 Letter, he accepted that he had sent the Text Messages, but took issue with the key aspects of the charges, disputing that:

• the Text Messages were sent ‘in the course of legal practice’;[10]
• by sending the Text Messages, he ‘threatened’ Mr Podaridis (or that Mr Podaridis felt threatened);[11]
• he intended to cause Mr Podaridis to change his evidence;[12] or
• the Text Messages were ‘public communications, or communications which were likely to come to the attention of the public’.[13]

5. For the reasons that follow, I am comfortably satisfied and find that the Text Messages were threats made by Mr Lennon to a witness in the course of legal practice and that, by sending the texts, Mr Lennon sought to have Mr Podaridis refrain from giving evidence. Ultimately, I find that Mr Lennon’s conduct in sending those Text Messages justifies a finding that he is not a fit and proper person to engage in legal practice and, as such, represents professional misconduct within the definition in section 297(1)(b) of the Uniform Law.
6. It is strictly unnecessary to make a finding in respect of the alternative Charge 4. However, I am satisfied that Mr Lennon was an officer of the Court and a Plaintiff in the County Court Proceeding at the time of sending the Text Messages. I am also satisfied that this would still justify a finding that he is not a fit and proper person to engage in legal practice for the purposes of section 297(1)(b).
7. The remaining alternate charges — being charges 2, 3 and 5 to 15 of the Application — fall away and I express no view on those charges.
8. However, having regard to the findings in respect of Charge 1 and for the reasons which follow, I am not comfortably satisfied that, in the context they were made, the Text Messages Mr Lennon sent privately to Mr Podaridis were ‘likely to be made public’ as alleged and, as such, find that Charge 16 (and the alternative variant of that charge, being charge 17) has not been proven.

…

Mr Lennon intended that Mr Podaridis refrain from giving his evidence

47. In the Particulars, the Commissioner contends that the Text Messages:[44]

were intended to have the effect of discouraging Mr Podaridis from giving evidence as a witness for the defendant to the County Court proceeding or otherwise changing his evidence so that it was not unfavourable to the Respondent’s interests as a plaintiff to the County Court proceedings.

Particulars

…

The Respondent had received the outline of evidence only shortly before sending the Text Messages.

The Respondent was angered that Mr Podaridis had, in his opinion, changed sides and/or been misrepresenting his allegiance to, among others, the Respondent prior to the provision of the outline of evidence.

The Respondent had a telephone conversation with Mr Podaridis and a subject of that telephone conversation was Mr Podaridis’ proposed evidence.

The Text Messages followed that telephone conversation.

48. In support of these contentions, the Commissioner relies upon ‘the context in which the text messages were sent, the content of the messages and the Respondent’s account’.[45] In particular, she submits that:[46]

[p]laced in context, the Tribunal may infer that the Respondent and his fellow plaintiffs had already determined that Mr Podaridis’s evidence would be unhelpful to them but the Respondent had, until 10 July 2020, assumed that Mr Podaridis would assist the plaintiffs’ case by not giving evidence in the Lantouris proceeding.

49. In his February 2023 Letter, Mr Lennon contends that it was ‘not [his] intention to cause Mr Podaridis to change his evidence’.[47] He contends that Mr Podaridis had been motivated to give evidence to avoid being sued by Ms Lantouris, and Mr Lennon simply wanted him to tell the truth.[48] He believed that, if Mr Podaridis indicated he would not ‘sign up to’ the outline of evidence, Ms Lantouris’ lawyers would ‘not take the risk of seeking to compel him to give evidence’.[49]
50. The Commissioner refers to the decision of Byrne J in R v McLachlan (‘McLachlan’)[50] in support of the proposition that, while it may be ‘legitimate’ to persuade a witness of errors in their proposed evidence ‘by the application of reasoned argument’, using ‘improper pressure’ (i.e. threats and abuse) to do so amounts to ‘an unlawful interference with the process of justice, or contempt’.[51] In that case, a police officer, who had threatened to bring perjury charges against a witness he believed was to provide false evidence was found guilty of criminal contempt of court.
51. In any event, the Commissioner contends that the suggestion that Mr Podaridis’ true evidence would assist the Plaintiffs is ‘inconsistent with the plaintiffs’ early decision not to call him’.[52] She suggests that what Mr Lennon ‘sought to do was threaten Mr Podaridis so that he would give evidence in favour of the plaintiffs, or not give evidence at all’.
52. Mr Lennon accepts that he was upset to hear that Mr Podaridis was to give evidence for Ms Lantouris after Mr Podaridis had led him to believe that Mr Podaridis was in the ‘plaintiff’s camp’. Prior to receiving the outline of Mr Podaridis’ evidence for the defendants, it was Mr Lennon’s understanding that Mr Podaridis would not give evidence (because the Plaintiffs had determined not to call him).
53. By his own admission, Mr Lennon was hoping to persuade Mr Podaridis not to swear up to the evidence outlined, such that Ms Lantouris’ legal team would not call him. In other words, the intention was effectively to dissuade him from giving evidence at all.
54. It has been observed in the context of charges of contempt of court that, ‘however proper the end’ may be (e.g. it may be a proper end to try and persuade a witness not to give false evidence), ‘the means must not be improper’.[53] The outcome in McLachlan makes it clear that even the threat of a lawful act (in that case, to bring perjury charges) may be improper, and interference by way of ‘force or threat of force’ is self-evidently improper.[54]
55. For these reasons, I find that Mr Lennon’s intentions in sending the Text Messages was to cause Mr Podaridis to refrain from giving evidence.

Conduct is inconsistent with Mr Lennon being a fit and proper person to engage in legal practice

56. The Commissioner contends that by sending the Text Message, Mr Lennon engaged in conduct that would justify a finding that he is not a fit and proper person to engage in legal practice.[55]
57. In her submissions, the Commissioner points to the obiter comments of Ryan J in her decision in the County Court Proceeding that the Text Messages were ‘vulgar and abusive in tone’ and that sending such messages to a witness ‘on the eve of the trial [was] entirely inappropriate and fell far short of the standard expected from an officer of the court’.[56]
58. The Commissioner submits that it is ‘undoubtedly the case that the conduct would reasonably be regarded as disgraceful and dishonourable by lawyers of good repute and competency’ and that the ‘sending of the text messages and the intent behind them, indicate that the Respondent is not of good character’.[57]
59. In closing, Ms Fitzgerald contended that the Tribunal could be comfortably satisfied that Mr Lennon’s conduct, which ‘amounts to contempt’, is inconsistent with being a fit and proper person to engage in legal practice. (Although she clarified, in response to a question I raised, that it was not necessary for me to make a finding as to criminal or civil contempt.)
60. In his February 2023 Letter, Mr Lennon suggests that the question of ‘whether his conduct is to be regarded as disgraceful and dishonourable is for the Commissioner to decide, objectively’.[58] Of course, that letter was written before the Commissioner decided to refer the charges to the Tribunal. It is now for the Tribunal to determine whether the conduct falls within the definition of professional misconduct in section 297(1)(b).
61. During the hearing, I drew Ms Fitzgerald’s attention to the following observations of White J in Attorney-General v Gregory (‘Gregory’):[59]

The community can rightly be uneasy if an attempt to influence a key witness by one who is in a privileged position as an officer of the court, is not treated with the gravity which that conduct deserves. … An understanding as fundamental as the integrity of a witness’s evidence from influence or corruption is not learned with experience. One might venture to suggest that a member of the public would know so. A practitioner of mature age and 10 years experience, even without the benefit of a great deal of litigation work, who makes such a basic error of judgment is not a fit and proper person to practice.

62. Of course, those comments were made in the context of an attempt to ‘suborn a witness’ (i.e. have them give false evidence) as opposed to refraining from giving evidence in a civil proceeding. However, Ms Fitzgerald contended that the principles expressed by White J were nevertheless appropriately applied in the context of this case. She noted that, at the time he sent the Text Messages, Mr Lennon had 31 years’ experience, was an officer of the court and was a plaintiff in the County Court proceeding. The attempt to have the witness change his position or not give evidence weighed, with ‘enormous gravity’, on his fitness. This contention was said to be ‘enhanced’ by Mr Lennon’s attempts to ‘cast his conduct in an acceptable light’ in the February 2023 Letter.
63. Even though Mr Lennon was angry with Mr Podaridis, may have acted when he was ‘disinhibited’ as a result of having too much ‘red wine with and after dinner’[60] and believed that the evidence Mr Podaridis proposed to give was false, it was entirely improper to make threats to seek to dissuade Mr Podaridis from giving that evidence.
64. The decision in Gregory makes clear that the integrity of a witness’s evidence from influence or corruption is ‘fundamental’. Consistent with that decision, I consider that for Mr Lennon — a solicitor, with more than 30 years’ experience in criminal law — to make ‘such a basic error of judgment’ clearly establishes that he is not a fit and proper person to practice.
65. I add that this is applicable whether the basic error was made by Mr Lennon in the course of legal practice (i.e. for Charge 1) or as an officer of the Court and one of the Plaintiffs in the County Court Proceeding (i.e. for the alternative Charge 4).

…

(emphasis added)

The link to the full decision may be found here.

[1] Tribunal Book (‘TB’), 619-624 [7(b)].

[2] The person referred to in the Text Messages as ‘Derek’.

[3] Letter from Mr Begg to the Commissioner dated 7 September 2022: TB, 644.

[4] February 2023 Letter [7(d)].

[5] TB, 646.

[6] February 2023 Letter [7(h)].

[7] Ibid [7(i)].

[8] Ibid [10].

[9] Mr Lennon sent an email to Mr McCarthy on 21 June 2024 advising that he was ‘not engaging in the proceeding’ because he perceived it to be ‘a witch hunt and of no utility’: Exhibit AMM-2 to the Affidavit of Aidan Michael McCarthy dated 23 July 2024.

[10] February 2023 Letter [11].

[11] Ibid [7(k)].

[12] Ibid [6].

[13] Ibid [12].

…

[44] Particulars [34].

[45] AOS [43].

[46] Ibid [44].

[47] February 2023 Letter [6].

[48] Ibid [7(h)].

[49] Ibid [7(g)].

[50] [1998] 2 VR 55.

[51] AOS [45].

[52] Ibid.

[53] R v Kellett [1976] 1 QB 372, 388 (cited in McLachlan [1998] 2 VR 55, 60).

[54] Ibid, 392 (cited in McLachlan [1998] 2 VR 55, 61).

[55] Particulars [43].

[56] AOS [51] (citing Argyle Lending Pty Ltd & Ors v Lantouris [2021] VCC 259 [43] and [45]).

[57] AOS [51]–[52].

[58] February 2023 Letter [5].

[59] [1998] QCA 409.

[60] February 2023 Letter [5].