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  QSC 65. The solicitor got it wrong, and copped a personal costs order.
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”
In Cleveland Investments Global Ltd v Evans  NSWSC 567, Justice Ward reviewed the authorities spinning off Spincode Pty Ltd v Look Software Pty Ltd  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”
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”
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  FCA 534. The relevant High Court authority is Johns v Australian Securities Commission (1993) 178 CLR 384;  HCA 56, which is posted about separately here.
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 408;  HCA 56 penned by Justice McKerracher in Apache Northwest Pty Ltd v Agostini  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:
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  EWHC 39 (QB).
It has never been clear to me that anyone was entitled in a disciplinary prosecution to refer to statements made ‘without prejudice’ unless the joint privilege holders (the disputants on whose behalf the communication was made, and made to) waived it. Now I have found an authority on the question in Legal Practitioners Complaints Committee v David F  WASAT 352, a disciplinary prosecution of a lawyer who allegedly made misleading comments during a negotiation. Western Australia’s State Administrative Tribunal held that without prejudice statements could be adduced in evidence against him: Continue reading “Waiver of without prejudice privilege in disciplinary prosecutions of lawyers”
I reckon Dr Desiatnik is unlucky with the timing of his texts. The first edition of Legal Professional Privilege in Australia was finished when the High Court changed the test for the privilege from a sole purpose to dominant purpose and restated the law of implied waiver. I have always shuddered about the story one of my law lecturers recounted of a Canadian academic who devoted a decade to a text on death taxes only to see the parliament abolish them on the eve of the launch. I hope the story is apocryphal. This time around, Dr Desiatnik — a lovely man with a quirkily old fashioned text writing style — has finished a whole book devoted to negotiation privilege, which is about to be published, and the House of Lords has come along and put out a major judgment on the subject. Fortunately, Ofolue v Bossert  UKHL 16 does not seem to revolutionise the law. Here is The Times‘s account of the decision.
I have previously expressed my disquiet about the Western Australian QC who told the Australian media that Schapelle Corby’s lawyers were trying to bribe the judges hearing her case. It seems the Bureau de Spanque de l’Australie de l’Ouest had in fact got right onto it, initiating an own motion investigation. The resultant prosecution has only just now, almost four years later, ground to a successful halt, with a 60,000 word decision crafted by WA’s State Administrative Tribunal over the six months during which the decision was reserved. The case is Legal Practitioners Complaints Committee v Mark T QC  WASAT 42. The QC does not come out of it well. Continue reading “Another case about one of Schapelle Corby’s lawyers”
Update, 13 January 2010: See now British American Tobacco Australia Limited v Gordon (No 3)  VSC 619.
In Legal Practitioners Complaints Committee v Mark T QC  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’”
Update, 19 April 2009: See also the duty to test the validity of purported exercises of compulsion which, if valid, will trump the duty of confidentiality codified in r 6.3 of the Law Society’s Professional Conduct Rules 1983:
‘A practitioner shall not without the consent of his client directly or indirectly reveal that client’s confidence or use it in any way detrimental to the interests of that client or lend or reveal the contents of the papers in any brief or instructions to any person except to the extent required by law, rule of court or court order
provided that where there are reasonable grounds for questioning the validity of the law, rule or order he shall first take all reasonable steps to test the validity of the same’.
Original post: Those who call legal professional privilege ‘client legal privilege’ describe it more accurately. It is the client’s privilege. Recently, a lawyer sought my advice. His file had been subpoenaed by someone other than his client. I knew, but could not immediately find authority for the proposition, that a lawyer has a duty to assert the client’s privilege. Today, I came across some authority for the proposition. In Spalding v Radio Canberra Pty Ltd  ACTSC 26, Justice Refshauge said at :
‘with legal professional privilege, the privilege is that of the client, but it is the duty of the client’s lawyer (or lawyers) to claim the privilege if it exists.’
His Honour cited: Re Stanhill Consolidated Ltd  VR 749 at 755, though the proposition is really to be found at 756, and there must be a better articulation of the point somewhere. I suspect that the solicitor’s duty is in fact only to give the client the opportunity to appear to assert the client’s privilege. I do not think the solicitor has an obligation to work up, at his own expense, arguments in support of claims for privilege over many documents.
Justice Pagone’s decision in Griffiths & Beerens Pty Ltd v Duggan  VSC 230 came along just at the very moment I needed to find out the answer to a question I have always been unsure about. Say you have documents from one proceeding obtained from the other side on discovery. They are relevant to a related subsequent proceeding. Do you have to discover them? If so, do you have to give inspection of them? If not, would it be a contempt of Court to discover them? Justice Pagone says you should discover away and give inspection subject to anything the second Court might do in the interests of justice, because the implied undertaking yields both to statutory compulsion (e.g. an ATO examination) and also to ‘curial process’ such as discovery and subpoenas. He also said something which, it appears to me, comes close to an assertion that the implied undertaking prima facie does not preclude use of a document obtained in one proceeding in another proceeding, and that what the undertaking is really about is the use of documents obtained in litigation for purposes other than litigation (e.g. publication to the media). Continue reading “The implied undertaking yields to compulsion; relevance to a second proceeding a powerful ‘special circumstance’”
Update, 7 July 2008: Watch the video of Tampoe slagging off his client here.
Original post: Lawyers and their regulators should care about the Corby case, because at the relevant time, a lot of people loved Schapelle and Schapelle does not now much like her lawyers. One of them has hit back, calling the Corbys “the biggest pile of trash I have ever come across in my life”. People will think this is normal, or at least the tip of the iceberg. And much confusion seems to be going around about Mr Tampoe’s fabrication of a defence for Corby. For giving this interview, and saying this, I condemn Mr Tampoe, who is no longer a solicitor, with all my fibre. What I question below is whether the media have got their reportage of his claim to have completely fabricated the defence right — if he means what I imagine he means, I say — so what? Whether or not the media have got it right, I reckon his comments might well harm his former client. They could have been personally deeply hurtful, they could affect her treatment in jail, they could affect any claim for clemency she might in the future make, and they could affect the result of the prisoner exchange treaty negotiations underway between the Australian and Indonesian governments, or the speed with which they progress. Continue reading “Robyn Tampoe, Schapelle Corby’s solicitor”
I prepared an application to restrain a firm of solicitors from acting in a Corporations List matter in the Supreme Court recently, and so have been reading the latest cases about conflict injunctions. The very latest is TJ Board & Sons Pty Ltd v Castello  VSC 91, where the plaintiff applied unsuccessfully to restrain the defendants’ solicitors from acting, and the defendants applied to restrain the plaintiff’s solicitors from acting. Neither succeeded in convincing Justice Hollingworth. The first application is interesting in making some comment on:
- the materiality of the evidence which a solicitor must be likely to give; and
- the extent of a personal interest in the outcome of the litigation as a result of participation in the controversial events which a solicitor must have
before he or she will be enjoined from acting because of a conflict of duty and interest.
The second application is a relatively unremarkable application of the law relating to confidential information based conflicts which allegedly arose out of a pre-retainer 20 minute ‘meet and greet’ which did not lead on to a retainer. Continue reading “Both sides apply to restrain the other’s lawyers from acting”
I am always astounded how many professionals make public comments about their clients. I cannot really understand why society allows lawyers to publish their memoirs. I read John Marsden’s memoirs, and was not impressed by his comments about Ivan Milat. If I remember correctly, they suggested, or rekindled the suggestion in the public mind, that Mr Milat got away with rapes long before he started knocking backpackers off, that it was Marsden’s brilliance which had achieved that, and that Marsden, cancer-stricken, wanted to tell the world that he rather regretted it now. Marsden also named, to the media, a woman whom he said was Mr Milat’s accomplice in the murders. Criminal lawyers have to live with secrets which bear down heavily on them. Perhaps it is not surprising that Marsden made the disclosure. But where was the reportage that this was a serious transgression? I am not speaking of condemnation, but rather an acknowledgment that this is not as it should be. All this assumes, of course, one thing which I do not know, namely that Mr Marsden did not have Mr Milat’s permission to make these statements.
Here’s an article about Britney Spears’s doctor, Dr Phil McGraw. Continue reading “Britney Spears’s ‘doctor’ criticised for public comments”
If there is one area of the law which has always seemed to me to be all over the place (though I never really sat down and tried to nut it out), it’s the law of privilege in its application to the inadvertently disclosed document. The latest English decision is MMI Research Ltd v Cellxion Ltd and others  All ER (D) 142. It says that there will be a waiver unless the recipient ought to have known that a mistake had been made. In this case that could not be made out. CMS Cameron McKenna’s Law Now note on the case is here.
Even though legal professional privilege, duties of confidentiality, and other evidentiary privileges are something I try to keep up with, and though I have just advised a litigation funder on the subject, I would be challenged by an urgent brief to argue the privilege of a communication between in-house counsel and a staff member or officer of his or her corporate employer. There are just so many single-judge cases and so few appellate cases, and I’m not sure they all stitch together too well. The latest is Telstra Corporation Limited v. Minister for Communications, Information Technology and the Arts (No.2)  FCA 1445, and Cutler Hughes & Harris’s note on it is here. Telstra’s resistance to the other side inspecting certain documents failed for want of evidence as to the independence of the relevant in-house counsel.
The law on the question has recently been summarised in the US in In re Vioxx Prods. Liab. Litig., 501 F.Supp.2d 789 (E.D. La. 2007). Hogan & Hartson’s note on the decision, well worth reading, is here.
Here’s a weird old privilege case: Sugden v Sugden  NSWCA 312. A minor from Orange in rural NSW suffered bad injuries in a car crash while she was driving. She was on L plates and her father was supervising. Since she was all banged up and in the Royal North Shore Hospital in Sydney, her father went to the local solicitor in Orange and gave a statement with a view to getting advice as to who was responsible for compensating her for her injuries. Turns out, he was the one to blame, so the daughter sued him. He and the daughter’s solicitor had stopped communicating after a while, of course, but there were the communications beforehand. Needless to say the only reason the daughter was suing her father was that her father had liability insurance. The insurer obviously wanted a copy of the father’s statement. The President of the NSW Court of Appeal and Justices Ipp and McDougall JJ said they couldn’t have it because it was privileged and the owner of the privilege was the father, who had been acting as his daughter’s agent. The analysis was under the uniform evidence legislation which does not apply in Victoria except in the Federal and Family Courts etc. exercising federal jurisdiction.
Here’s the state of the law in the US on the vexed issue of whether companies can assert legal professional privilege (aka client legal privilege) for the advice of employed lawyers (aka in-house counsel). It discusses the case of In re Vioxx Prods. Liab. Litig., 501 F.Supp.2d 789 (E.D. La. 2007)