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Lawyer claims privilege over material in disciplinary matter
A lawyer facing disciplinary action for allegedly sending an “emotionally manipulative” letter to his client’s ex-wife relied on legal professional privilege in an attempt to have material struck out.
Naomi Neilson
The Legal Services Commissioner (LSC) alleged Vincent Pennisi, from Pennisi Zia Lawyers, likely brought the profession into disrepute to a material degree by sending a letter to the ex-wife on his client’s behalf.
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At the time, there was a protection order against the client prohibiting him from directly or indirectly contacting his ex-wife for any purpose other than to discuss parenting arrangements or the child’s welfare.
In addition to being a likely breach of the protection order, the LSC alleged Pennisi’s letter was unprofessional as it was “oppressively lengthy, contained grammatical and spelling errors, poor punctuation, incorrect tenses and repetitive statements”.
Pennisi also allegedly included statements that contained the “use of emotionally manipulative or coercive language”.
As part of ongoing disciplinary matters, Pennisi filed an interlocutory application with the Queensland Civil and Administrative Tribunal (QCAT) to “strike out” some of the LSC’s material on the grounds it is covered by legal professional privilege (LPP).
This material included a letter from Pennisi to the client, a copy of the protection order, and initial client instructions.
The LSC argued because the letter was intended to bypass the protection order and that intention was “done in furtherance of an improper purpose”, the LPP could not be applied in this case.
The commissioner added there was no legal proceedings ongoing at the time the letter was sent and the letter “had no hallmarks of legal correspondence” so was not legal in nature.
QCAT member Paul Williams said it was clear on the evidence that the client had an “intentional disregard for the law” by seeking to “dress up the letter as falling within the statutory exception” of the LPP.
Williams added the letter and the client’s intention could be characterised as a “fraud on justice” that intended to “work a trickery”.
“The advice that was given was in respect of an ‘ongoing furtherance’ of having the letter ‘settled and sent’,” Williams determined.
“In these circumstances, the advice about the letter can be described in furtherance of the improper purpose.
“Accordingly, the seven documents and the identified paragraphs in the respondent’s affidavit are within the exception and there can be no proper basis for LPP to arise.”
The documents can now be relied upon in the disciplinary application.
