The Solicitors Disciplinary Tribunal (SDT) has reprimanded a solicitor for calling his opponent in litigation, among other things, a “complete plonker” – conduct which it said would diminish the trust of the public in the profession
In a ruling that highlights the dangers of replying to e-mails instantly, the tribunal did not take the view that serious harm was caused by the behaviour, judging it to have been of “a low level of seriousness”.
It accepted that the solicitor had a long, unblemished career, that the litigation involved was aggressively fought, and that a medical condition was likely to be a contributory factor.
London-based commercial litigator, Richard Gregory Barca, who was born, educated, and qualified in Australia, was admitted as a solicitor in England and Wales in 1986. He was the subject of a complaint to the SRA in December 2012, alleging he had made a number of abusive comments towards his opponent, and his opponent’s client, in correspondence during civil proceedings.
According to the SDT, in a letter Mr Barca said: “We enclose herewith a further copy of our letter of the 27th April, so that you can consider actually replying to it, as solicitors who comply with the normal English standards of conduct would do as a matter of course.”
In an e-mail the next day, he began: “Could you for once make an effort to behave like a normal person instead of a complete plonker?” and went on to say: “Perhaps you should seek professional help with your illness.”
Shortly afterwards, his opponent’s firm warned it would report him to the Solicitors Regulation Authority’s (SRA) if he should make further “insulting and vulgar” remarks.
But two months later, Mr Barca wrote in connection with the sale of a property at an auction: “Your clients appear to have misunderstood the auction process (whether because of lack of familiarity with the English language, or their unfamiliarity with auctions, we are unable to say).”
In an e-mail soon after, relating to disclosure, Mr Barca called a communication from his opposite number “petty and silly” and made references to characters in Alice in Wonderland: “We will give access to two people at our office to inspect originals. Mr Tweedledum can attend with his solicitor but not Mr Tweedledee.” Ultimately the client on the other side complained to the SRA.
In response to the SRA’s allegation that he had breached principle 6 – “You must behave in a way that maintains the trust the public places in you and in the provision of legal services” – Mr Barca said his comment in the first e-mail should be read “in the context of the entire correspondence, over 2,000 pages”.
The tribunal recorded that while it was proven he had breached principle 6, “all in all… the harm which had been inflicted was of a low level” and it “did not consider the respondent’s conduct, although very regrettable, to be beyond a low level of seriousness”.
It continued: “This was a single piece of litigation in a 29-year unblemished career which was being conducted in a highly aggressive way… [We accept] that this had been the respondent’s instantaneous reaction to e-mails which he sent without allowing himself any time for reflection or pause for breath to consider the style of the response he might have sent.”
Further, “the likelihood of future misconduct of a similar nature or of any misconduct was very low and there was ultimately evidence of genuine insight demonstrated by the respondent”.
The tribunal accepted medical opinion that Mr Barca had been suffering from an undiagnosed physical illness which would likely have “affected his temperament and strained his work relationships” at the time the offending communications were sent.
Recording the tribunal “considered that this matter was too serious for no order to be made”, it added: “Had the respondent’s culpability not been impaired by his medical condition the tribunal would have considered that he should receive a fine; instead a reprimand was appropriate”.
Mr Barca was ordered to pay costs of £2,600.