Family law … Letter writing skills … Unreferenced borrowings in overwrought missive to client’s husband … Writing under instructions … Sohini Mehta reports 

VCAT has dished out a reprimand to a senior family lawyer for sending an offensive letter to her client’s husband, which inexplicably parroted judicial dicta from an entirely unrelated and bitterly contested case decided in 1998. 

Karen Low, admitted as a legal practitioner in July 1993, was in September of last year slapped with a charge for unsatisfactory professional conduct under section 4.4.2 of the Legal Profession Act 2004. 

The charge relates to the letter Low penned on April 12, 2015, addressed to her client’s husband, who was unrepresented at the time.

The Victorian Legal Services Commissioner received a complaint from the husband on May 10, 2015 about the impugned missive. 

When asked what he hoped to achieve by making the complaint, the husband said he wanted Low disciplined and to “improve [her] attitude towards the other side”.  

In its December 2015 application for determination of the disciplinary charge against Low, the commissioner stated that large portions of the impugned letter were misleading. 

Low unsuccessfully applied to have her name anonymised in the tribunal’s findings.

The letter, littered with scolding “may we remind you” synopses of the law, purportedly represented the instructions or allegations of her client as established fact. 

She’d stated that the husband had repeatedly breached court orders that the wife spend time with the children, and abusively manipulated the children to take his side by involving them in “adult themed issues” and suggesting their mother had behaved inappropriately. 

The two most criticised paragraphs in the letter were lifted from the Australian Master Family Law Guide, which itself reproduces portions of Justice Graham Mullane’s dicta in M v M, interposing the names of the children without referencing either the Guide or the judgment.

Low should have been aware, as a legal practitioner, of the importance of adequate referencing when dealing with a self-represented litigant.

Mullane’s findings of fact concerning the husband in M v M were made after a three-day contested hearing in the Family Court. Resurrecting flowery dicta only on the basis of the wife’s instructions or allegations predictably inflamed the family dispute.

There was no basis for Ms Low similarly to label the complainant (the husband) in the same way. 

Mullane has said in the M v M case that the young children would inherit the father’s propensity for physical and emotional abuse and be incarcerated. 

The husband of Low’s client found the suggestion that his young children would inherit this propensity to be absurd and highly offensive.

VCAT said that the “misleading” aspect of the letter being didn’t support the disciplinary charge. Low had acknowledged at the start of the letter that she was writing on the instructions of her client and it was the hypothetical reasonable reader, not the husband, who had been misled. 

Stephen Warne, counsel for Low, said that sometimes practitioners have to make highly offensive comments to other parties and that is just part of the cut and thrust of contested legal proceedings. The tribunal accepted that a letter of demand addressed to a third party will often cause offence by virtue of its inherently accusatory nature.  

The terms “plagiarism” or “plagiarised” were, in contrast to the commissioner’s application, markedly absent from Snow’s oral submissions for the commissioner. 

Outside the realms of academia and journalism, and with no evidence of dishonest intent, the tribunal found Low’s conduct didn’t amount to plagiarism. 

The substance of the charge came down to the commissioner’s allegation that there was no reasoned basis for Low to reproduce the two most criticised paragraphs in her letter. 

In Low’s correspondence with the commissioner, she stated that Mullane J made remarks relating to the impact of domestic violence and denigration and that the words of the judge were “simply quoted” in the impugned letter “on the basis of our instructions”.

The tribunal was comfortably satisfied that Low wouldn’t have received instructions to the effect that the children’s behaviour was akin to that of the extremely violent husband in M v M.

Considering the gravity of Mullane’s findings about the husband in M v M, the tribunal found Low’s allegations about the potentially extreme consequences of the husband’s behaviour on the future of his children were made without reasonable basis.  

Accordingly, the solicitor’s conduct fell short of the standard of competence expected of a reasonably competent lawyer. 

VCAT reprimanded Ms Low and ordered her to pay the commissioner’s costs. 

The tribunal did not to impose the commissioner’s recommended fine of $1500 and requirement for additional CPD points in light of Low’s otherwise unblemished record and pro bono engagements.