[51] In the circumstances, it should have been apparent to Mr McDonald when he received a letter of Thursday 25 August 2011, that no purpose would be served by continuing to make the emphatic assertion Mr Catanese was lying, in circumstances where Mr McDonald was aware that he had no conclusive proof of this. It was always going to be his word against Mr Catanese's.
[52] Second, as a result of the telephone conversation with Mr Proietto the next day, Mr McDonald had also become aware that it was possible to seek to negotiate with Lander & Rogers on behalf of his client. So no interest of his client's would be served by continuing to argue what had now become a moot point.
[53] Third, Mr McDonald should have considered the possibility that he was mistaken in his belief that Mr Catanese had lied. He should have considered the possibility that there was a misunderstanding or that he had misinterpreted what Mr Catanese had said, especially considering he did not take notes of the actual words spoken.
[54] Mr McDonald's case was that the overall effect of all the communications he had received from Lander & Rogers up to 30 August 2011 constituted a serious threat to his practice and reputation, such that he was justified in making the assertions he did in his letter that day.
[55] I disagree. In my view, even accepting that Mr McDonald's earnest belief in his own version of the phone conversation, his reaction was so extravagant as to breach Rule 21.
[56] I reject his contention that he was the subject of a uniquely aggressive attack, quite unlike anything which would take place from time to time in conducting practice as a plaintiff law firm, which required the response he gave.
[57] Looking at the correspondence and sequence of events overall, it is apparent Mr McDonald over-reacted. The two firms of solicitors were obviously involved in a robust exchange of assertions, designed to further the strategic interests of their respective clients. In all the circumstances, I do not regard the content of the letters from Lander & Rogers of 24 and 25 August as being as unjustified or outrageous, as Mr McDonald contended. The references to misrepresentation of the matters discussed in the telephone conversation and the 24 August 2011 letter from Mr McDonald being likely to mislead a Court or Tribunal if produced at a later date, were not an unreasonable statement of their position. These were expressed in contingent terms, not as absolutes. Similarly, the word 'vexatious' in the 24 August 2011 letter from Lander & Rogers was softened by the word 'potentially'. Also, at this stage it was merely suggested, rather than demanded, that Mr McDonald withdraw his letter of 24 August 2011.
[58] Lander & Rogers' response indicates its perception that it was responding to an unparticularised ambit claim. It was also nervous of what the implications might be of the reference which Mr McDonald had made to duties under the Civil Procedure Act 2010. Mr Catanese said that Mr McDonald had commenced the telephone conversation on 24 August 2011 by saying that he was calling in respect of the Civil Procedure Act. Mr Catanese said he had never before or since had a telephone conversation which commenced in that unusual way. Practitioners are subject to an overarching obligation to use reasonable endeavours to resolve civil disputes.[114] More onerous duties were imposed on solicitors under this legislation as originally enacted, but it was agreed at the hearing that these had been revoked by the newly elected Government prior to August 2011.
[59] There is an incongruity in the fact that Mr McDonald had a conversation with Mr Proietto on 26 August 2011 during which this issue was ventilated, and yet after a further four days to reflect, Mr McDonald sent the letter of 30 August 2011 in such intemperate terms. After hearing Mr McDonald's evidence and submissions, it appears the most likely explanation for this is that the comments about Mr Catanese were written in anger, following receipt of the $500 offer the day before. Indeed, the offensive statements about Mr Catanese were contained in the same short letter of 30 August 2011 as Mr McDonald's rejection of the offer as not genuine, not meeting the requirements of the Civil Procedure Act and demonstrating a lack of good faith.
[60] Mr McDonald said the fact that this offer was made demonstrated that he had been 'set up'. He said the offer was made in order to prove him wrong in his assertion that Mr Catanese had stated that there would be no negotiations.
[61] This explanation seems unlikely. It was not specifically put to Mr Catanese. It assumes that the reason Lander & Rogers responded with a very low offer was to protect its solicitor, and that Landers subjugated its client's interests to protect its solicitor. This is a serious suggestion to make.
[62] The more likely scenario, which is consistent with the correspondence, is that the $500 offer was a response to what was perceived to be a claim not supported at that stage by any particulars which could justify an offer of any real substance.
[63] In any event, even if he was provoked, Mr McDonald's letter of 30 August 2011 constituted an unnecessarily offensive and personal attack on Mr Catanese. Even on the basis that Mr McDonald firmly believed Mr Catanese had made the statement attributed to him by Mr McDonald, to write a letter stating that a solicitor he had never dealt with before was 'fundamentally dishonest' and had started off 'at an early stage of his career telling lies' arising out of a conversation the content of which was he had known for five days was contested, and which objectively, he knew could not be proved, was discourteous, offensive and provocative. The letter of 30 August 2011 purports to make a damning judgment about the character of a solicitor, with whom Mr McDonald has had only minimal contact.
[64] Mr McDonald complained that after he sent the 30 August 2011 letter, Lander & Rogers then responded over-aggressively to him. In his evidence, referring to Lander & Rogers' response after that, Mr McDonald said in his evidence 'all hell broke out'. However, it was Mr McDonald who had inflamed the situation by sending his intemperate letter of 30 August 2011.
[65] Mr McDonald compounded the matter further by repeating and expanding his allegations that Mr Catanese had engaged in deliberate and calculated dishonesty in his letter of 2 September 2011.
[66] I certainly do not accept Mr McDonald's suggestions that his two letters were a 'measured and temperate' response and that he was seeking not to escalate the situation.
[67] Mr McDonald's submissions relating to Lander & Rogers' conduct somehow being an attempt to protect its stream of Government law work, and the sending of a fax so that Mr McDonald's office staff could see it are no more than speculative allegations without any evidence to support them.
[68] The reference to the pro bono work done by Mr McDonald is not relevant. The fact that Mr Catanese has not brought defamation proceedings against Mr McDonald is also irrelevant. Disciplinary proceedings under the Act are brought by the LSC for the purpose of protecting the public and the reputation of the legal profession. It is trite that any civil remedies which parties might have are quite separate to disciplinary proceedings, which can only be brought by the LSC.
[69] I also reject Mr McDonald's assertions which sought to paint himself as the battling underdog, being bullied by the big firms, as a justification for his intemperate response.