Background
Farshad Amirbeaggi acted for a client whose finances were under the management of the NSW Trustee and Guardian. In related Supreme Court proceedings, the client sought a determination that she could manage her own financial affairs. At an April 2019 directions hearing, the client’s senior counsel argued that a court-appointed expert’s report established her present capacity. Lindsay J did not accept that capacity was no longer in issue and permitted further expert evidence concerning the effects of chronic pain, medication use and associated risks.
The NSW Trustee separately sought assessment of more than $1.2 million in legal fees invoiced by Amirbeaggi’s firm. Seeking a 12-week abeyance, Amirbeaggi wrote to the costs assessor that Lindsay J had “noted that there is no doubt” the client had capacity. He wrote without a transcript or contemporaneous note. The statement substantially departed from the hearing as recorded in the transcript, although the disciplinary bodies did not find that he intended to mislead or acted dishonestly.
The Law Society’s Professional Conduct Committee found unsatisfactory professional conduct and issued a caution. The NSW Civil and Administrative Tribunal affirmed that decision. Amirbeaggi appealed, challenging findings about the disparity between his letter and the hearing, his recollection, the letter’s capacity to mislead and the Tribunal’s description of his language as “reckless.”
The Court’s Holding
The Court of Appeal dismissed the appeal with costs. It held that, read in context, the letter conveyed an unequivocal judicial opinion that the client had capacity. That was inaccurate: Lindsay J had rejected the client’s attempt to treat the expert report as determinative, had expressed continuing concerns about capacity and had allowed further expert evidence. The word “noted” did not make Amirbeaggi’s statement less absolute.
The letter was capable of misleading the costs assessor when sent. That conclusion did not depend on proof that the assessor was actually misled and was unaffected by the NSW Trustee’s opportunity to respond, the assessor’s ability to obtain the transcript or Amirbeaggi’s later correspondence. Although the Law Society conceded that the Tribunal erred by saying Amirbeaggi had to identify the statement expressly as his best recollection, that error was immaterial.
The Tribunal’s use of “reckless” was construed as meaning careless, not dishonest or wilfully indifferent. Even accepting that Amirbeaggi honestly recalled the hearing as he described it, his inaccurate and unqualified account fell below the competence and diligence expected of a reasonably competent lawyer. Particular care was required because the letter sought an outcome advantageous to him—delaying scrutiny of his firm’s fees—while the client’s capacity remained contested. The unchallenged caution therefore stood.
Key Takeaways
- A lawyer may commit unsatisfactory professional conduct by carelessly giving an inaccurate account of judicial remarks, even without dishonesty or an intention to mislead.
- Whether correspondence is capable of misleading is assessed when it is sent; later corrections, responses or access to source materials do not eliminate that capacity.
- Lawyers must exercise particular care when making representations that advance their own financial interests, especially where their client’s capacity is disputed.
Why It Matters
The decision confirms that professional discipline may follow from a single careless communication where its context makes accuracy especially important. An honest but unsupported recollection does not necessarily provide an adequate basis for attributing an unequivocal position to a judge.
For practitioners, the case underscores the need to verify hearing accounts against reliable notes or transcripts and to describe disputed or uncertain matters with precision, particularly in communications to independent decision-makers and in circumstances involving a potential conflict between duty and self-interest.