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When Tone in Correspondence Becomes an Ethical Issue Paper accompanying a presentation given by Peter Sise on 15 September 2023 for Law Society of Tasmania Annual Employment Law Conference 2023 Peter Sise A.
The many reasons to strike the right tone
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One of the primary skills of a lawyer is their use of language both written and spoken. The only work product created by a lawyer is a written document or spoken communication, whether that be a submission made in court, a written contract or a written advice. Mastery of nderstanding of subtleties and nuance. The tone of language is a key part of this. We often hear someone say that a person used an aggressive tone or a placatory tone. This tone is the overarching impression left by the communication on the reader. This may have a greater impact on how they respond to the communication than any particular word or sentence in the communication.
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Clients expect their lawyers to have a good appreciation of the correct words and tone to choose in a contentious situation. It is important that a lawyer (whether in-house or in private practice) maintains a civil tone in all communications made on behalf of their client for practical reasons; for example the client's interests are unlikely to be assisted by intemperate language. There are also ethical reasons for civil language. These largely arise from the Australian Solicitors Conduct Rules (ASCR), which are the ethical rules that apply to Australian lawyers in all States and Territories other than the Northern Territory. The Northern Territory instead uses the Rules of Professional Conduct and Practice (May, 2005) of the Law Society Northern Territory. In Tasmania, the ASCR are known as the Legal Profession (Solicitors' Conduct) Rules 2020.
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This paper will look at the rules concerning use of language in the ASCR and recent disciplinary decision concerning these rules. Before going further, we should list some of the many reasons for using civil language and tone in legal practice.
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First, civil language and tone are more likely to advance a client's interests, particularly in a contentious matter. Lawyers are often engaged where there is a degree of mistrust or hostility between the parties. This mistrust and hostility is often a barrier to a resolution. Inflammatory language and tone are likely to heighten mistrust and hostility. Clause 4.1.1 of the ASCR states that one of the "fundamental ethical duties" of a solicitor is to "act in the best interests of a client in any matter in which the solicitors represents the client". Inflammatory language and tone are often unlikely to be in the best interests of a client. That is not to say that a lawyer is to be meek. Quite the contrary. A lawyer has a right and duty "to fearlessly and fully propound .1 We can all think of situations where a lawyer may need to say things which are affronting and perhaps even cause offence; for example, an allegation of misleading conduct, lack of good faith or even fraud. The lawyer should not shy away from making these allegations provided there are reasonable grounds for making them, the lawyer is instructed to do so and the lawyer believes they are in their client's best interests.2 But even allegations such as these can and should be made in a civil manner. Courts and Tribunals have observed that: (a)
"that confrontation is a less effective means of being an advocate for one's client than persuasion" although "it is not unsatisfactory professional conduct to choose a
1 Victorian Legal Services Commissioner v McDonald (2019) 57 VR 186; [2019] VSCA 18, [121]. See also Lander v Council of the Law Society of the Australian Capital Territory [2009] ACTSC 117; (2009) 168 ACTR 32, [35]-[36]. 2 See Lander v Council of the Law Society of the Australian Capital Territory [2009] ACTSC 117; (2009) 168 ACTR 32, [47].
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