Privilege and disciplinary investigations

Lawyers have an obligation proactively to assert and protect the privilege enjoyed by their clients and former clients: Re Stanhill Consolidated Ltd [1967] VR 749 at 752. I wrote about it in this post about the Legal Profession Act 2004 (Vic).  Lawyers have no implied or, I would suggest, ostensible authority to waive privilege belonging to former clients. The administration of justice will protect the privilege of persons who are unaware of the issue arising and make no assertion of the privilege: Legal Services Board v Garde-Wilson [2007] VCAT 1406 at [89].

In investigations of complaints by former clients about their former lawyers, no privilege issue arises, either under the Legal Profession Act 2004 or the Legal Profession Uniform Law.  The complaint would amount to an implied waiver at common law, and the question is put beyond doubt by statute.  Of course, this proposition has its limits and the wholesale use of client secrets against them in a manner disproportionate to the need to divulge them in response to their complaint is a seriously ugly look.  The issue of client privilege arises where disciplinary investigators are investigating complaints by non-clients, or in own motion investigations.  So, for example, I am advising in relation to a complaint made by the husband about conduct by the wife’s solicitors in a matrimonial proceeding between them.

Where a lawyer purports to waive a former client’s privilege without the client’s instructions, or simply fails to consider the question before handing documents over to the State, the law requires ‘the cat to be put back in the bag’ as far as possible: B v Auckland District Law Society [2003] UKPC 38 at [69]; British American Tobacco Australia Services Limited v Cowell [2002] VSCA 197 at [192].  So a disciplinary tribunal might well not receive, or put from its mind, evidence of privileged communications obtained by legal regulators in the course of investigations of non-client complaints where the client had not waived privilege, and indeed exactly that occurred in a VCAT case in which I was involved.

The law in relation to privilege and non-client complaints under the Legal Profession Act 2004 was clearly declared by VCAT.  The situation faced by  lawyers investigated under the LPUL following the complaints of non-clients, and in own motion investigations, in respect of pre-LPUL conduct is not so clear.  It is the subject of this post, which suggests that notwithstanding what the Legal Services Commissioner will tell you is a clear abrogation of privilege by the LPUL for all investigations conducted under it, lawyers in such circumstances should think carefully before giving up privileged communications without their former clients’ informed consent.  They should, in my submission, at least alert their clients to the possibility that the privilege might still be available to be asserted and give them the opportunity to assert it, if they care to sufficiently.

It will be increasingly important in the future to make clients aware that lawyer-client confidentiality has been largely done away with: all a person curious about the advice being obtained by his adversary need do is make a complaint about the adversary’s lawyer.  The old advice that ‘everything you tell me is strictly confidential’ cannot now be given without risking a negligence suit. Every time a solicitor tells a battered woman that whatever she tells him will be just between her and him, and he will seek her permission before using the information publicly or even in the Family Court, will have to add ‘unless your boyfriend or his father or a men’s rights action group make a disciplinary complaint against me, as they are perfectly entitled to do’.  So too the QC representing BHP in relation to tax matters: ‘Of course you understand that all this is privileged (unless the judge, who’s getting pretty cranky at me, refers me off for investigation by the Legal Services Commissioner)’.  I don’t think I’m being hyperbolic; I’m acting at this very moment for a solicitor whom the Commissioner is compelling to divulge privileged communications connected with the subject of proceedings, in a complaint by the other side to the proceedings, mid-proceedings.

Continue reading “Privilege and disciplinary investigations”

White Industries v Flower & Hart: unfounded allegations of fraud

This post is a case note of Justice Goldberg’s famous decision in White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169; [1998] FCA 806 as well as of associated decisions and surrounding controversy.  Because it is what I am working on at the moment, it concentrates on that part of the case which relates to the unjustified pleading settled by Ian Callinan QC and signed by his instructor Michael Meadows, alleging that the builder lied to the developer in relation to the cost of building a shopping centre just north of Brisbane.  It’s a big post, to kick off the year.

Facts (not all drawn from the judgments)

George Herscu died just before Christmas, aged 85. He was the alter ego of a property development group headed up by the Hersfield Development Corporation. According to 4 Corners, he was the biggest property developer in the country. According to The Australian, he lived in a Toorak mansion, owned a Melbourne Cup winner, and was once the third richest man in Australia after Robert Holmes a Court and Kerry Packer, one place ahead of Alan Bond.  He was a millionnaire by 30, and made and lost a fortune of $500 million.  He left Australia for California in 1997 and rebuilt substantial wealth.  Towards the end of his life, he was engaged in bitter litigation with his son, who described him as ready to spend whatever is needed to “crush anyone that stands in his way”.  Ironically, given what follows, Mr Herscu’s lawyers accused the son of mis-using the deposition process.  According to The Australian, they said:

‘Your clients’ continued insistence on trying to push an 80-year-old man with hypertension, a heart condition, failing hearing and many other health problems into a deposition room – having already deposed him for 27 hours – is shocking and wrong.  The only conclusion one can reasonably draw from your clients’ posture is that their litigation strategy involves attempting to subject George Herscu to so much stress and pressure he simply dies. To use the tools of discovery for this purpose is reprehensible, and indeed revolting.’

Very alarmingly, he was asked in those depositions about allegations that he had watered down the beer in a pub. Continue reading “White Industries v Flower & Hart: unfounded allegations of fraud”

Anonymous tip-offs and litigation privilege

The Supreme Court of New Zealand, their equivalent of our High Court, handed down a decision on the litigation limb of legal professional privilege on 12 August 2010.  Chief Justice Elias, with whom the rest of the Court agreed, held that:

  • privilege could attach to an anonymous provision of information to a litigant (who happened to be a barrister) in relation to litigation, and the intention of the anonymous tipper-off-er is not determinative of the dominant purpose test;
  • privilege could attach in the right circumstances to the identity of a person who makes a privileged communication, though often that person’s identity will not be privileged (as to the Australian position, see this post).

The decision is Jeffries v The Privacy Commissioner [2010] NZSC 99. It was decided under s. 56 of New Zealand’s Evidence Act, 2006.  That provision is sufficiently relevantly different from Victoria’s Evidence Act, 2008′s s. 119 that the unsolicited communication decision is of doubtful application, but the law stated in the decision is said to be the common law, and so still relevant in Victoria where privilege is relevant to the adduction of evidence in places like VCAT which are not covered by the Act, and outside of Court proceedings, for example pursuant to notices from the Legal Services Commissioner.  The common law authorities relied on by the Chief Justice were Bankim Thanki (ed) The Law of Privilege (Oxford University Press, Oxford, 2006) at [3.69] and Re Thomas Holloway (1887) 12 PD 167 (CA). Continue reading “Anonymous tip-offs and litigation privilege”

Another case on privilege and in-house counsel

I never manage to keep up with all the cases about whether in-house counsel’s communications with others in their company may attract legal professional privilege, and if so in what circumstances. I do know that you would want to take great care in preparing affidavits in support of such a claim. The latest decision is in Banksia Mortgages Ltd v Croker [2010] NSWSC 535, and Sparke Helmore have provided a handy little note, with links to some other handy little notes they have written previously about similar cases.

The ‘it just popped out’ defence to implied waiver

In Tulloch (deceased) v Braybon [2010] NSWSC 640, a witness was being cross-examined.  He answered a question responsively.  Then, he added some unresponsive material, and it was argued that this little unexpected and unresponsive addendum meant that it had become unfair to maintain client legal privilege over some associated subject matter.

Justice Brereton held that the conduct which gave rise to a prima facie implied waiver of the privilege had occurred in circumstances where the Court had been unable to comply with its obligation under s. 132 of the Evidence Act, 1995. Instead of saying that the cat was now out of the bag, and it had become unfair to maintain the privilege over the associated matter, the Court cured the unfairness by striking from the record the little addendum, thereby putting the cat back in the bag.  The ‘it just popped out’ defence could be quite useful in a string of situations, where the Court has an obligation under s. 132 to warn witnesses of their rights (‘If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself [that they] aware of the effect of that provision.’)  What Justice Brereton said was: Continue reading “The ‘it just popped out’ defence to implied waiver”

Legal professional privilege and disciplinary complaints by non-clients

If you are a solicitor and someone other than your client or former client has lodged a disciplinary complaint against you in Victoria, you should not disclose the subject matter of any communications to which legal professional privilege attaches, or might arguably attach, unless you are instructed to do so by your client or former client. Nor should you give up any document which records such a communication, or disclose any communication which tends to reveal the content of a privileged communication.

That is so even if the Legal Services Commissioner purports to compel the information, for in the case of investigations of non-client complaints, the client’s or former client’s privilege trumps the Commissioner’s powers of compulsion.  If you have already disclosed privileged communications, assuming that the Commissioner had the power to compel you to do so, you should be aware that the disclosed communications may well still be privileged notwithstanding the disclosure to the Commissioner, and so unable to be used against you in a disciplinary prosecution arising from the investigation, and you should probably advise your client or former client.

Until recently, the Commissioner took the view that legal professional privilege was impliedly abrogated in the case of non-client complaints by necessary intendment of the Legal Profession Act, 2004.  Not so.  The reasons why follow below.  These propositions are good law in VCAT’s Legal Practice List, at least.

Remember that it is still the common law which regulates legal professional privilege for the purposes of Legal Services Commissioner investigations and (except to the extent that it adopts the Evidence Act, 2008 in any particular proceding) in VCAT’s Legal Practice List. Continue reading “Legal professional privilege and disciplinary complaints by non-clients”

Latest decision on implied waiver upon suing former solicitors

In Schulman v Abbot Tout Lawyers (a firm) t/a Abbott Tout Solicitors [2010] FCA 308, a plaintiff sued his former lawyers for misleading and deceptive conduct.  At the same time as the misleading representations, which were in the nature of legal advice, were alleged to have been made by them to him, he had been obtaining legal advice from the lawyers who came to act for him in the case against the former lawyers.  The former solicitors wanted inspection of the advice given by the new lawyers at exactly the time the plaintiff said he had relied on the former solicitors’ representation to his detriment.  There are certainly issue waiver cases out there pursuant to which such inspection might have been ordered.  But Justice Flick said there was no evidence that the subject matter of the legal advice was the same as the subject matter of the controversial representation, or even that it was relevant to it, and even if there had been, the plaintiff had done nothing in the proceedings so far inconsistent with the maintenance of the privilege so as impliedly to waive it.  His Honour said, at paras [17]ff: Continue reading “Latest decision on implied waiver upon suing former solicitors”

Changes to legal professional privilege operate retrospectively

They’ve changed the law in relation to legal professional privilege on us. The common law has been abolished, at least in relation to compulsory processes (discovery, subpoenas, interrogatories, notice to produce) in fora where the new Evidence Act, 2008 applies, and the adduction of evidence in those fora. Two legal professional privilege regimes are now going to apply in relation to any particular communication.  If the Tax Man, or the Legal Services Commissioner, compels you to produce documents, the common law will apply.  If you produce them, the common law will determine whether the production amounts to a waiver.  If the investigation leads to court (but not VCAT) proceedings proceedings, to which the new law will apply, you might be compelled by subpoena to produce documents you successfully resisted producing in the investigation pursuant to the common law.  Furthermore, in those proceedings, the Court will decide for itself, under the new law, whether the production to the Commissioner in the investigation amounted to a waiver or not.

The change is not as great as it might have been had the uniform evidence law been introduced into our land prior to the last round of amendments.  Now the law relating to implied waiver of privilege is stated in more or less the same terms as the common law, as expounded by Mann v Carnell, and the new law applies to post-commencement but pre-trial stages of court cases as well as at trial.  But there are differences too: Justice Byrne’s decision referred to below confirms it.

I blogged about the transitional provisions for the new legislation here.  It occurred to me that since the Hikers are so fond of emphasising what a basic common law right the right to assert legal professional privilege over confidential communications is, there was a real question about whether the changes ought to operate retrospectively, in the sense that communications which occurred before this year (i.e. before the commencement of the new Act) which were already entitled to legal professional privilege at common law might be adjudged not to be privileged for the purposes of proceedings governed by the new Act.  There is a presumption in statutory interpretation against the retrospective taking away of accrued rights.  But there is no such presumption in relation to changing procedures for the vindication of rights.

Someone has actually already run this esoteric argument.  In Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd (No 4) [2010] VSC 27, Justice Byrne, who knows a thing or two about the law of evidence, gave the argument short shrift, though his views are purely dicta: Continue reading “Changes to legal professional privilege operate retrospectively”

Yet another implied waiver case: Paragon Finance Plc v Freshfields (a firm)

Several recent posts have been about the implied waiver which is said to be an incident of clients suing their former solicitors for negligence.  They are simply case notes.  Some of the cases are English.  All were decided under a law different from that which from 1 January 2010 applies in Victorian court proceedings, a law which has existed in fellow uniform evidence jurisdictions NSW and the Commonwealth only since the beginning of 2009, when amendments to the client legal privilege provisions came into operation.  The purpose of this preamble is to warn against assuming that the law stated in these cases, which represent the common law at the time and in the place of their decision, is the law today. I’m not saying it’s not, right; I just can’t be bothered for the moment to work it out.

Paragon Finance Plc v Freshfields (a firm) (1999) 1 WLR 1183; [1999] EWCA 955 is a unanimous decision of the English Court of Appeal’s Chief Justice, Lord Bingham, and Lord Justices Brooke and Chadwick.  The question the Court identified for decision was:

‘if a client sues his former solicitors claiming damages for alleged negligence in the handling of a commercial transaction between the client and a third party, does the client’s waiver of legal professional privilege (implied from the bringing of the proceedings against the former solicitors) apply not only to confidential communications between the client and those former solicitors relating to that transaction but also to confidential communications between the client and different solicitors whom he later instructed to pursue and settle his claim against the third party?’ Continue reading “Yet another implied waiver case: Paragon Finance Plc v Freshfields (a firm)”

Benecke v National Australia Bank: imputed waiver by criticising lawyers in proceedings to which they are strangers

Benecke v National Australia Bank (1993) 35 NSWLR 110 is one of the best known Australian cases about imputed waiver in relation to making allegations about the course of the retainer of former lawyers.  It is not, however, a case about imputed waiver in professional negligence suits against former solicitors, since this was not such a suit.  Rather, in the course of a proceeding to set aside the settlement of a previous proceeding, Ms Benecke claimed that her solicitor and the other side’s solicitor had settled her case without Ms Benecke’s authority, and gave a detailed account of her conversations with her QC.  The defendant, seeking to uphold the settlement called Ms Benecke’s former QC as its witness.  Ms Benecke’s complaint upon appeal that such evidence was privileged and should not have been admitted was rejected on the basis that Ms Benecke had waived privilege over the conversations by setting out her version of them. Continue reading “Benecke v National Australia Bank: imputed waiver by criticising lawyers in proceedings to which they are strangers”

Imputed waiver of privilege upon clients suing former lawyers: Lillicrap v Nalder & Son

Back from Vanuatu, a pleasant place, I am slaving away at a 10,000 word paper on the application of the Evidence Act, 2008 to civil cases involving lawyers.  In due course, no doubt, I will subject you to a serialised version of it.  One of the things I am considering is that species of implied waiver of legal professional privilege which is an incident of suing your lawyer, so expect more case notes on that topic than you could reasonably want to read.  First up: Lillicrap v Nalder & Son [1993] 1 WLR 94, which seems to be the English decision most often cited for the proposition that upon a client suing their lawyer, the client’s client legal privilege over the solicitor’s file, and over communications between them more generally, is waived to the extent necessary to allow the lawyer to respond to the suit.  It was recently affirmed in Esso Australia Resources Pty Ltd v BHP Billiton Petroleum (Bass Strait) Pty Ltd [2007] VSCA 224, a decision of Acting Chief Justice Maxwell and Justice of Appeal Chernov.  And in Mann v Carnell (1999) 201 CLR 1, the majority said: Continue reading “Imputed waiver of privilege upon clients suing former lawyers: Lillicrap v Nalder & Son”

Accountants’ advice is not protected by client legal privilege

Update, 20 October 2010: the  decision was confirmed on appeal: Prudential Plc, R (on the application of) v Special Commissioner of Income Tax[2009] EWHC 2494 (Admin)Here is a note from a firm named Hogan Lovells.

Original post: Tax advice is given by lawyers and accountants alike.  Lawyers’ advice is privileged by legal professional privilege (also known as client legal privilege), but accountants’ advice is not, at least not under the advice limb. If you ever need authority for that proposition, it is Regina (Prudential plc and Another) v Special Commissioner of Income Tax [2009] EWHC 2494 (Admin), a decision of the English High Court.   English firm Herbert Smith’s note is here. The Times‘s Report is here.

How would Goldberg v Ng be decided today?

For the moment, I am taking Advanced Evidence at Melbourne University, and Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 is on the reading guide.  As it is a case about a lawyer-client dispute, and as it not likely to be at the forefront of reading about legal professional privilege since Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, I thought it would be appropriate to share a proper note of it.

How would it be decided today? Both decisions were decided according to the common law.  This post is more about the common law than the Evidence Act, 2008. Soon enough, though, s. 122(2) of the Evidence Act, 2008 may provide the answer. But it’s a pretty Mann v Carnellish section, so the answer may well turn out to be the same at common law and under the Act.  It provides for waiver where the privilege holder ‘acted in a way that is inconsistent with … objecting to the adducing of the evidence [on the basis of client legal privilege]’.  Without limiting sub-section (2), a client is taken, according to sub-section (3)(a) to have acted inconsistently if he knowingly and voluntarily disclosed the substance of the evidence to another person.’ According to sub-section 5(a), a client is not taken to have acted inconsistently merely because the substance of the evidence has been disclosed (i) in the course of making a confidential communication or preparing a confidential document, or (ii) as a result of duress or deception, or (iii) under compulsion of law.’

The majority’s language in Goldberg was certainly tweaked by Mann.  ‘Fairness’ is out as the touchstone, and the search for conduct inconsistent with the maintenance of the privilege against the person seeking to establish waiver is in, a category of conduct which overlaps with but does not correlate with unfairness.  But would the tweak affect the outcome?  Justice McHugh, who alone in Mann thought privilege had been waived,  said at [108] he thought Goldberg was wrongly decided, as did Justice Kirby at [147], maintaining the position in his dissenting decision in the Court of Appeal in Goldberg v Ng.  The plurality judgment of the rest of the Court (Chief Justice Gleeson and Justices Gaudron, Gummow and Callinan) seemed content with the decision, however (see below).

In outline, a dispute over a payment by a client to his solicitor’s wife of about $100,000 was concurrently the subject of Supreme Court proceedings and a professional conduct complaint made to the NSW Law Society.  The proceedings and the complaint were both brought by the former client.  In response to a request by the Law Society to look at a proof of evidence the solicitor had prepared for the purpose of a suit for fees he had intended to bring against the former client, the solicitor volunteered it (free of compulsion to do so) for the purpose of convincing the Law Society of his case.  Later, he did likewise with a second proof of evidence he drafted at his lawyer’s request in response to the allegations in the former client’ suit against him.  Had he not volunteered these two proofs, he would in the ordinary course have had to provide a formal written response to the complaint, but he did not have to do so. The Law Society had promised not to show them to the former client, and reassured him that he maintained his privilege over the documents notwithstanding that he had disclosed them to it.  The Law Society dismissed the disciplinary complaint by the Law Society by reference to the information contained in the proofs of evidence, and advised the client complainant to pursue his remedies at law.  Had the complaint not been dismissed, the Fidelity Fund might have paid out the $100,000 or so claimed in the Supreme Court proceedings, obviating the need for those proceedings.  The proceedings having to continue, however, both proofs were subpoenaed by the former client, along with the rest of the Law Society’s file, which were but ‘different emanations of the same dispute’ — in fact, the complaint had been initiated by providing a copy of the issued but as yet un-served Supreme Court documents to the Law Society with a request that the allegations within be investigated.

The High Court confirmed the lower courts’ decisions that privilege had been waived over the documents by their provision to the Law Society and so could be inspected following production in response to the subpoena.  The dissenters said this was a plain case of limited waiver and ‘fairness’, the majority’s touchstone, had nothing to do with it.  Furthermore, they took issue with the majority’s characterisation of the solicitor’s conduct as being voluntary and calculated self-interest, saying that the threat of compulsion, and an obligation of frankness in solicitors towards legal regulators meant that there was a quasi-compulsion operating. Continue reading “How would Goldberg v Ng be decided today?”

Ombudsman carries out own-motion investigation of Legal Services Commissioner

A former client of mine, dissatisfied with the adverse outcome in a complaint he lodged making serious allegations against a senior member of the profession has tipped me off to an own motion investigation conducted into the Bureau de Spank by the Victorian Ombudsman.  The results, reproduced below, will not assist morale at the Bureau (compare his excoriation of the migration agents’ Bureau).  But solicitors can expect, I suppose, for the investigation process to become a bit more investigative than the gentlemanly exercise it has been as long as I can recall, and for more prosecutions to be brought.

In the hierarchy of regulators, I doubt that the Legal Services Commissioner is a particularly desirable post, but it should be.  Regulate the lawyers diligently, and the scope for all the others’ wrongdoing which the other regulators regulate is likely to be retarded.  It should also be desirable because it would be fun: the Commissioner doesn’t have to worry about the privilege against self-incrimination, and at least in complaints brought by former clients, can cruise past the usual irritant to pious investigators, legal professional privilege.  Imagine an investigation where you can gun for fines of $50,00o per offence, or the inherently spectacular thrill of seeing a lawyer fall from his perch with the wonderfully archaic fanfare of being struck from the rolls, but where you can essentially administer as many interrogatories as you like.  And imagine that default in answering the interrogatories is a crime the investigation of which is to be carried out by an investigator you personally get to choose in your capacity as head honcho of the Legal Service Board!  It should be enough to make an investigator pant with excitement.  Many a federal policewoman would probably give up her taser in exchange for these kinds of powers.

Continue reading “Ombudsman carries out own-motion investigation of Legal Services Commissioner”

Latest on privilege of loss assessors’ reports

Update: What do you know! Here’s another one, hot off the press of the Supreme Court of Queensland: Charleville RSL Memorial Club Inc v Sheapalm Pty Ltd [2009] QSC 193.

Original post: What insurers do when they get a public liability claim is hire a loss assessor to find out the facts,  hopefully get to the witnesses before anyone else does, and put the insured under surveillance before they get lawyers to warn them of the tricks of insurers’ lawyers.  It is a rare form of institutionalised use of non-lawyers where that is sensible, insurers being in some ways the most sophisticated purchasers of legal services (which is why the insurance wings of large firms, less profitable by virtue of clever bargaining by insurers, split off and become boutique insurance law firms).  So a hoary old chestnut is whether the report generated by the loss adjuster’s retainer is covered by legal professional privilege, and whether it makes any (and if so what) difference if the insurer uses a stooge solicitor to effect the retainer.  Long the leading case on legal professional privilege, Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674 was in fact more or less such a case.

Harden Shire Council v Curtis [2009] NSWCA 179 is worth tucking away for several reasons. First, it is obviously a case of unusually high authority on this particular question. Second, none of the loss assessor reports authorities are considered, so this decision will not turn up in regular research which takes as its starting point earlier authorities on point.  Third, it was decided under the Evidence Act, 1995 (NSW) an analogue of the soon to commence Evidence Act, 2008 (Vic) which we Victorians are going to have to get used to.  Fourth, it’s short, and so capable of being handed up usefully as clear authority for a number of propositions, including that: Continue reading “Latest on privilege of loss assessors’ reports”

Schapelle Corby’s former lawyer struck off

Robin Tampoe, the former Gold Coast lawyer hired as one of Schapelle Corby’s lawyers by Ron Bakir, has been struck off the roll of solicitors by Queensland’s Legal Practice Tribunal. The decision is here.  Removal from the roll is the ultimate sanction in the world of professional discipline, though in circumstances where it is not apparent that Mr Tampoe intended in the future to practise law anyway, it is interesting that there does not seem to have been any push for a substantial fine.

Mr Tampoe did not contest the charge of professional misconduct comprised of disclosing on a national breakfast television show confidential information obtained during his retainer about criminal convictions of members of the Corby Family.  Nor did he contest the unsatisfactory conduct comprised of commentating on his own defence strategies and calling his client’s family the biggest pile of trash he had ever come across in his life. That conduct was characterised as ‘scandalous, offensive and/or likely to bring the profession into disrepute’.  You can still watch some of the conduct in question on Channel 9’s website. Continue reading “Schapelle Corby’s former lawyer struck off”

Professional confidentiality and the ‘iniquity exception’

Update, 13 January 2010: See now British American Tobacco Australia Limited v Gordon (No 3) [2009] VSC 619.

In Legal Practitioners Complaints Committee v Mark T QC [2009] WASAT 42, the Perth QC who announced to the Australian media that Schapelle Corby’s Balinese lawyers were trying to get money to bribe the judges sought to excuse his breach of confidence by reference to the proposition that there is no confidentiality in an iniquity. The Tribunal rejected that argument, saying that if the rule had operation in this case, it could have justified only disclosure of the contemplation of a bribe to ‘the appropriate authority’ which certainly was not The West Australian.  The Tribunal’s reasoning is reproduced below.  Before that is its explanation of the source and obligations of professional confidentiality, where it reiterated two points which in my experience cannot be reiterated too often:

  • First, the Tribunal said it would be a mistake to try to make the obligations of professional condidentiality fit into the rules which govern trade secrets, i.e. the principles of equitable breach of confidence.  Equally, something might be confidential even if not privileged, for example because of the Cox v Railton exception to privilege; in other words, it does not follow from the lawyer’s inability to resist a proper compulsion to produce information gained as a result of a lawyer-client relationship that the lawyer may volunteer that same information.
  • Secondly, it said that the confidentiality obligation is not only to keep secret that which is secret, but also not to make anything any less secret which has already begun to lose its secrecy.  Here, the media was already on to the possibility of a bribe being considered.  But the QC’s confirmation of it gave that fact an authenticity and newsworthiness which it did not previously have. Continue reading “Professional confidentiality and the ‘iniquity exception’”

Litigation survival guide

This post aggregates hyperlinks to a series of articles published by an English firm, Wragge & Co, entitled ‘Litigation Survival Guide’.  It piqued my interest for the reasons set out below. Part 1 is ‘Escape to Victory — Points to Consider When Terminating a Contract’. Part 2 is ‘Protecting the Supply Chain’.  Part 3 is ‘Retention of Title: Sellers Beware’.  Part 4 is ‘Winding Up Your Corporate Debtor’. Part 5 is ‘Responding to the Threat of Winding Up’. Part 6 is ‘Regulatory Breaches’.  Part 7 is ‘Think Before you Claim’. Why it’s not part 1 I cannot imagine.  Part 8 is ‘Cost Effective Litigation’.  Part 9 is ‘Privilege — top five Q&As’. Part 10 is ‘A Reminder of the Basic Principles of the “Without Prejudice” Rule and Some Hints and Tips for its Use’. Continue reading “Litigation survival guide”

How the other side’s barrister can see your witness’s proof of evidence

When you are preparing witnesses for trial — expert and lay witnesses, party and non-party witnesses alike — you should bear in mind that the other side’s barrister can call for all documents which the witness has used to refresh their memory, whether or not they are privileged.  Even the client’s proof of evidence, a privileged document drawn up by his or her solicitor, and in some ways the centrepiece of the privileged file, may be called for, if the client used it in preparation for trial.  Even — GET THIS! — a barrister’s opinion in the matter (as in Grundy v Lewis [1998] FCA 1537), if the client witness has read over it by way of preparation for trial.  The fact of the existence of a proof of evidence is not, of course, enough for it to be called for (Justice Refshauge said ‘If [the witness] had read it to check it was accurate, to see that it was complete, to add additional material of instruction to her lawyer or to excise inaccuracies or irrelevancies, that would not justify its production following a call.’).  It must have been used by the witness to refresh his or her memory for the purposes of giving evidence in court (or of being cross-examined, in the case of evidence given on affidavit).  All this is the clear message from Spalding v Radio Canberra Pty Ltd [2009] ACTSC 26,  a defamation case. Radio Canberra’s barrister was cross-examining the plaintiff.  It went like this: Continue reading “How the other side’s barrister can see your witness’s proof of evidence”