A new Australian legal ethics blog

A warm welcome to the blogosphere for the Queensland Law Society’s Ethics Blog, which is in its first posts, but attracts an impressive callibre of comments.  The blog has a post about a recent, rare, decision about those rules about what to do in litigation if you discover your client is lying, or you find that you have inadvertently misled the court: Perpetual Trustee v Cowley [2010] QSC 65.  The solicitor got it wrong, and copped a personal costs order.

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”

NSW’s latest spin on Spincode’s duty of loyalty

In Cleveland Investments Global Ltd v Evans [2010] NSWSC 567, Justice Ward reviewed the authorities spinning off Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248; (2001) 4 VR 501, in which Justice of Appeal Brooking set out his views in relation to the ‘duty of loyalty’ as a grounds for restraining solicitors from acting.  Her Honour reviewed the authorities in considerable detail (so that the judgment is a useful repository of the state of the law up there in NSW), and concluded: Continue reading “NSW’s latest spin on Spincode’s duty of loyalty”

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”

Restraints on use of information obtained by compulsion

The rule in Home Office v Harman governs the use of documents and information obtained by people generally by various forms of compulsion in litigation: the court rules about interrogatories (a form of statute), Court orders for discovery, witness statements served pursuant to an order to do so.  But when I carefully checked this point a while ago, it seemed clear that the principle had no application outside litigation, the exception being, perhaps, arbitration.

Outside litigation, however, the main source of powers to compel the production of documents and the disclosure of information is statute, and the main repository of them mandarins.  When a mandarin (disguised say as a Commissioner, or an Inspector) obtains information by compulsion, there is an important limit on what the mandarin may do with it.  The important limit is that the information may only be used for the purpose the power of compulsion was bestowed.  This is a proposition which I vaguely knew I had read somewhere, but which has several times eluded me when I tried to look it up.  But now it’s back in my quiver, courtesy of Apache Northwest Pty Ltd v Agostini [2009] FCA 534.  The relevant High Court authority is Johns v Australian Securities Commission (1993) 178 CLR 384; [1993] HCA 56, which is posted about separately here.

Continue reading “Restraints on use of information obtained by compulsion”

Johns v Australian Securities Commission

This is a little adjunct to my post ‘Restraints on Use of Information Obtained by Compulsion’, a place to store away for future reference the little case note of Johns v Australian Securities Commission (1993) 178 CLR 384; [1993] HCA 56 penned by Justice McKerracher in Apache Northwest Pty Ltd v Agostini [2009] FCA 534.  In digesting the quotation from Johns, it is helpful to know what s. 25 of the Australian Securities Commission Act, 1989 said.  Here is Justice McKerracher’s case note:

Continue reading “Johns v Australian Securities Commission”

Confidentiality (-not) of disciplinary determinations

The Times has an article about a solicitor on the Board of the English legal regulator and former president of the Law Society who, rather embarrassingly, had a conflict of interest determination go against him after a disciplinary investigation.  The solicitor acted pro bono for a barrister who was being sued by an Exxon subsidiary.  He acted in an appeal from a Hong Kong court to the Privy Council, which succeeded.  At the time of the appeal, the solicitor’s firm merged, and one of his new partners did some work for another Exxon subsidiary.  The barrister complained later of a conflict of duties.  The complaint was made out. Private Eye got a hold of the adjudication and was preparing to make merry with it when the solicitor applied for an injunction to prevent publication on the basis that it was confidential. That application failed, and so did the solicitor’s appeal. It is easy to say ‘bad, bad move’ with the benefit of hindsight, yet it is a difficult conclusion to escape, since none of the judges seem to have thought much of what I also consider to be an odd argument that a disciplinary adjudication was confidential to the complainant, the solicitor, and the Bureau de Spanque.  Here is the decision of the English Court of Appeal’s Lord Justice Toulson with whom Lords Justice Sullivan and Hughes agreed: Napier v Pressdram Limited [2009] EWHC 39 (QB).