Reflect, not Neglect, in Communication with Opposing Lawyers

Legal Services Commissioner v Kirin [2024] QCAT 489 (14 November 2024).

In a case that reminds practitioners to reflect before clicking send, Judicial Member McMeekin KC ordered that the conduct of a Brisbane principal solicitor and sole practitioner amounted to unsatisfactory professional conduct and that he be fined $2,000 and be publicly reprimanded for sending “discourteous, offensive and thoughtless” correspondence to an opposing solicitor in a matter regarding domestic violence. 

It was held that the correspondence went beyond legitimate advocacy and was likely primarily designed to embarrass or frustrate another person.

Mr Kirin accepted the charge but maintained that his conduct should not be characterised as professional misconduct.  The parties also contended for different pecuniary penalties.

It was proposed and agreed that Mr Kirin complete a Queensland Law Society ethics course at his own cost.  Mr Kirin had, by the time of the hearing, undertaken the course proposed.

The decision did not detail all of the correspondence said to be rightly characterised in the charge but provided the following examples of unsubstantiated and unprofessional language used in initial correspondence consisting of five discourteous and inappropriate emails:

(a) the wife was “postnatally depressed” and “mentally ill”;

(b) the wife was “wandering the earth” with the clients’ infant daughter;

(c) Ms Milson-Mahy [the solicitor for the wife] was acting “belligerently”, was putting forward “blatant lies… unquestionably and uncritically”, and acting in an “overzealous” manner in a “legally aid funded crusade against” [Mr Kirin’s client];

(d) referring to Ms Milson-Mahy as being bullying and threatening to Mr Kirin;

(e) implying that Ms Milson-Mahy had not obtained instructions from her client before responding.

The Judicial Member set out the following at paragraphs [12] to [14] of the decision:

[12] Ms Milson-Mahy pointed out to Mr Kirin the unsuitability of Mr Kirin’s correspondence (as it had transpired to that time) and the potential breaches of the Australian Solicitors’ Conduct Rules 2012, rules that she particularised, in an email. Regrettably this did not cause Mr Kirin to reflect on his own behaviour. Mr Kirin responded with the following:

When I was overseas in places like the Ukraine, for instance, promoting democracy and the rule of good law, my life was threatened several times (!) My career many times more (!) I did not think I would return to Australia to the same tactics. If you think you can be a BULLY and THREATEN my career, just because you are a woman fighting for women then I’m here to tell you that’s not on!

[13] There is considerable irony for Mr Kirin to claim his promotion of the rule of law in his earlier career while characterising an appeal by his colleague to the law applicable to his own conduct as bullying and threatening.

[14] His apparent incapacity to appreciate the inappropriateness of his behaviour continued. In response to a notice from the Commissioner, sent some months later, concerning his conduct, Mr Kirin thought it appropriate to write to Ms Milson-Mahy:

(a) asserting that he would report Ms Milson-Mahy to the Australian Capital Territory Law Service if she did not withdraw the complaint; and

(b) alleging that her complaint would cause him to “re-live the horror of what happened to [him] in Europe” as a “recovering victim of torture sustained during [his] time working in the post-Soviet bloc”.

The Judicial Member considered the statutory definitions of “professional misconduct” in s 419 of the Legal Profession Act 2007 (Qld) (LPA) and “unsatisfactory professional conduct” in s 418 of the LPA and determined at [19] as follows:

[19] There is no doubt that Mr Kirin’s conduct falls below the standard referred to in s 418. The Tribunal explained why in Legal Services Commissioner v XBT [2018] QCAT 64,(citations omitted):

[19] There is no question that sending rude, demeaning, derogatory, disparaging, personally abusive or offensive, undisciplined and discourteous correspondence to or about a third party with an opposing interest in a matter where the practitioner acts for a client breaches r 28(5) Solicitors Rule 2007 (since repealed) and meets the statutory description of unprofessional conduct.

[20] The conduct diminishes the dignity and high standing of the profession and tends to reduce community respect for it. It is unbecoming and suggests a loss of the objectivity, independence and judgment needed for the proper discharge of professional responsibilities on which the administration of justice depends and the court relies.

[21] The defendant appears to have allowed herself to overinvest in her client’s case to a degree that unbalanced her professional judgment. Identifying too closely witha client’s cause is a constant danger for a committed lawyer to guard against. The conduct in question amounted to a serious professional indiscretion and ordinarily calls for the censure of a public reprimand to express disapproval and deter similar conduct by others.

The Judicial Member undertakes an analysis of cases said to be comparable and also considers, in particular, cases involving domestic violence and concluded at [39]-[40] as follows:

[39] Mr Kirin had a view that his comments here were expected in the practice in litigation involving commercial matters and the like, matters of which he had experience. The practitioners on this Tribunal do not share that experience, but whether true or not, his complete lack of prior experience in cases of allegations of domestic and family violence in this area of practice was admitted and evidently contributed to his insight into his discourteous, offensive and thoughtless comments.

[40] In our view the conduct here should be characterised as unsatisfactory professional conduct.

In relation to sanction, the Tribunal determined from [41]:

[41] We have no doubt that a pecuniary penalty is appropriate. It is plainly as a reminder to the profession that the conduct here is unacceptable and useful to achieve the aim not of punishment but to securing “the interests of the protection of the community from unsuitable practitioners”: Legal Services Commissioner v Madden [2008] QCA 301; [2009] 1 Qd R 149. The Commissioner submits that personal and general deterrence are relevant to the protection of the public and is particularly relevant in sanctioning Mr Kirin. Aggravating features were that Mr Kirin acted with apparent impunity in continuing such conduct, and, following complaint, in making threats in seeking the complaint be withdrawn.

[42] As mentioned, it is agreed that Mr Kirin should be subjected to being publicly reprimanded for his conduct. That of course is a significant sanction involving public shame and the probable impact on the practitioner’s future practice. It is in that context that we consider the remaining issue of the suitable size of the pecuniary penalty.

[43] Mr Kirin is 51 years old.He was admitted to the Supreme Court of Tasmania in 2004. He was a principal solicitor at the time of the conduct in question. He has worked in litigation, corporate finance, leveraged buy-outs, and international contractual fields. For 12 years Mr Kirin practised in Central and Eastern Europe and the United Kingdom, returning to Australia in 2018. Prior to the subject matter he had no experience in family law or domestic violence offences. He has now ceased practice at least temporarily. When in practice he enjoyed a very modest income.

[44] Mr Kirin had an unblemished career over a period of 20 years and has no disciplinary history. He has not been the subject of any complaints or further disciplinary action since the conduct the subject of the charge.

[45] Counsel submitted on Mr Kirin’s behalf that from the start of these proceedings, Mr Kirin “has acknowledged the inappropriateness of his actions, and his regret for his conduct in sending the correspondence”.

[46] There were several further matters that were urged in mitigation. Each matter urged was appropriate and justified a more lenient approach:

(a) his co-operation in admitting the impugned conduct and not requiring witnesses to attend;

(b) this was the respondent’s first domestic and family violence matter;

(c) the respondent’s demonstrated insight and remorse, as outlined in his apology letter;

(d) the steps he has taken by way of further education and self-improvement;

(e) the correspondence was not sent directly to the aggrieved;

(f) the correspondence was not in contravention of any protection order and therefore did not amount to any criminal offence;

(g) the correspondence was private and was not disseminated to other person, practitioners or agencies.

[47] Counsel for Mr Kirin submits that the fine sought here by the Commissioner of $10,000 is more than six times that of any fine in comparable matters. That submission appears accurate. In Winning, Cooper and Orchard, discussed above, no pecuniary fine was imposed. In SYG, where the conduct was found to amount to professional misconduct, the practitioner was publicly reprimanded and ordered to pay a $2,000 pecuniary penalty.

The Tribunal ordered as follows:

[56] The orders are:

1. That the respondent’s conduct the subject of Charge 1 amounts to unsatisfactory professional conduct.
2. That the respondent be publicly reprimanded;
3. That the respondent pay a penalty of $2000 within 30 days;
4. That the respondent be required to undertake specialist domestic violence training approved by the Applicant; and
5. That the respondent pay the applicant’s costs of and incidental to this discipline application, such costs to be agreed or assessed on the standard basis in the manner in which costs would be assessed if the matter were in the Supreme Court of Queensland.

The case can be viewed here.