Attorneys face action for misusing Protection from Harassment Act

Attorneys who knowingly help clients misuse protection orders to silence journalists or obstruct criminal investigations could face professional disciplinary action and, in certain circumstances, criminal prosecution.

Myron Mer, director at Fluxmans Attorneys, said legal practitioners had an independent duty to the courts and could not simply rely on instructions from clients when bringing applications under the Protection from Harassment Act.

Lawyers warned against helping clients abuse Harassment Act

The warning comes amid concerns that protection order proceedings are being used to prevent public scrutiny, interfere with investigations and frustrate workplace disciplinary processes.

“An attorney cannot justify such conduct by relying on the client’s instructions,” Mer said.

Legal practitioners were required to exercise independent professional judgment, ensure allegations were properly supported and avoid misleading the courts.

The obligation was particularly important when applications were brought without notifying respondents, allowing courts to consider interim restrictions before hearing both sides.

“Applications brought without notice require particular care and full and frank disclosure of material facts, including adverse facts,” said Mer.

Existing legislation already provided consequences for deliberate abuse. Section 16 of the Act allows courts to award costs against parties who act frivolously, vexatiously or unreasonably.

Attorneys could face complaints

Section 18 criminalises specified materially false statements made in protection order applications, or affidavits used to invoke enforcement.

Attorneys who knowingly facilitate improper proceedings could also face complaints to the Legal Practice Council, disciplinary sanctions and, where justified, personal costs orders.

However, Mer cautioned that obtaining a tactical advantage did not automatically constitute misconduct. Neither did an unsuccessful application necessarily mean an attorney or applicant had acted dishonestly.

The determining factors were whether the application had a genuine factual and legal basis and whether the proceedings were being pursued for an improper purpose.

Mer called for stronger scrutiny of applications, quicker contested hearings and consistent consequences where dishonesty or deliberate abuse was established.

“Protection must remain accessible against genuine harassment, while the process must not become a means of shielding anyone from lawful scrutiny, investigation or accountability,” he said.