The English Court of Appeal also reminded lawyers of their duty to engage in fearless advocacy.  Many barristers get paid handsome sums to speak on their clients’ behalves.  Sometimes it is quite frankly embarrassing arguing points which you do not agree with, and which may not be very good.  Nevertheless, if they are arguable, it’s part of the job, and such arguments must be advanced with as much persuasive conviction as can be mustered.  There is a species of lawyer, a small majority of the general corpus, who expresses embarrassment about their client’s behaviour or contentions behind their back, lawyer to lawyer, wink wink, nudge nudge.  I am speaking of speech which goes beyond making proper concessions.  I regard such conduct with contempt.  The same behaviour may be seen in Court, a little more veiled; Lord Justice Dyson, with whom the other judges agreed, said:

’44. Our attention was drawn to page 6 of Cook on Costs [2010] where there is a reference to the decision of Mackay J in the present case. The author says:

“If a client is prepared for a case to be advanced and wants the claim advanced on a particular basis which did not involve impropriety on the part of the solicitor or counsel, then it is no answer for the solicitor to say that he believes it is bound to fail and therefore he will not do it. Whatever one thought about the client’s stance, his instructions were firm and unequivocal as to how the case was to be presented and the solicitor ought to have followed them. The situation fell short of the line where the solicitor would have been entitled to terminate the retainer and the solicitors were not entitled for any fees for the work they had done. I suggest the solicitor should have continued to act and adopted the traditional coded message to the court used in these circumstances: ‘I am instructed to say’.”

45. For reasons that I am about to give, I consider that the appellants were entitled to terminate the retainer in this case. But I refer to this passage in Cook because I do not agree with the last sentence. In my judgment, if an advocate considers that a point is properly arguable, he should argue it without reservation. If he does not consider it to be properly arguable, he should refuse to argue it. He should not advance a submission but signal to the judge that he thinks that it is weak or hopeless by using the coded language “I am instructed that”. Such coded language is well understood as conveying that the advocate expects it to be rejected. In my judgment, such language should be avoided.’

‘Where, as here in the case of the respondent, a party is represented by competent and experienced lawyers and is opposed by litigants in person, the party and its lawyers have a duty to assist the court to understand and give full and fair consideration to the submissions of the litigants in person. In particular such a party must refer the court to evidence in the proceedings that is relevant to those submissions. This duty is accentuated where, again as here, the party is a substantial institution accustomed to litigating cases involving issues such as are involved in the present case, often against litigants in person.’

The whole of the relevant passage read as follows:

‘Duties of represented litigant and its lawyers when opposed to unrepresented litigant

41 The respondent’s pre-appeal-hearing Written Submissions dated 4 November 2009 were not of assistance to the Court in considering the appellants’ earlier Written Submissions, to which they should have responded directly, because they did not refer to those submissions at all. These submissions of the respondent did little more than refer to the parts of the judgment below that were relevant to the appellants’ grounds of appeal listed in their Notice of Appeal. Following a direction given by the Court at the hearing of the appeal on 3 March 2010, the respondent lodged Written Submissions dated 19 March 2010 that dealt specifically and in detail with the contents of the appellant’s Written Submissions.

42 Submissions of this type should have been provided by the respondent at the outset, without the need for intervention by this Court. Section 56(3) of the Civil Procedure Act 2005 imposes an obligation upon parties to civil proceedings to assist the court to further the overriding purpose identified in s 56(1) of facilitating “the just, quick and cheap resolution of the real issues in the proceedings”. Where, as here in the case of the respondent, a party is represented by competent and experienced lawyers and is opposed by litigants in person, the party and its lawyers have a duty to assist the court to understand and give full and fair consideration to the submissions of the litigants in person. In particular such a party must refer the court to evidence in the proceedings that is relevant to those submissions. This duty is accentuated where, again as here, the party is a substantial institution accustomed to litigating cases involving issues such as are involved in the present case, often against litigants in person.’

First, I have posted before about the application of the privilege against penalties to disciplinary proceedings, and about what Justice Finkelstein said in Australian Securities and Investments Commission v Mining Projects Group Limited [2007] FCA 1620:

‘I would hold that a regulatory body that brings a civil proceeding to recover a penalty is under an obligation similar to that owed by a prosecutor to an accused.’

Secondly, in addition to this principle, many bodies and statutory officers charged with prosecuting professionals are governed by the governments’ model litigant rules.  Victoria’s Legal Services Commissioner is a model litigant, and so is governed by these guidelines (which include an obligation to avoid litigation where possible, to keep the costs of litigation as low as possible, and not to take advantage of respondents to disciplinary charges who lack the resources to litigate the disciplinary claim).

But where a barrister is involved in the prosecution, it is, at least in Victoria, surely the application of the conduct rules in criminal proceedings which comes closest to requiring the kind of conduct which Justice Finkelstein considers to be appropriate.  And this is the third thing.  The Victorian Bar’s practice rules define ‘criminal proceedings’ as follows:

‘includes disciplinary proceedings, in which context other expressions appropriate to criminal proceedings include corresponding meanings appropriate to disciplinary proceedings and in particular “a serious criminal offence” includes a disciplinary shortcoming which, if proved, involves the serious possibility of suspension or deregistration (or the equivalent).’

Part V of the rules is specifies particular duties of counsel in criminal matters.  They include rules requiring the counsel:

• To call all witnesses whose testimony is not plainly unreliable and whose evidence would be admissible in relation to a matter in controversy and necessary for the presentation of the whole picture (unless the respondent consents to their not being called). (Rule 139)
• To disclose to the respondent as soon as is practicable all material available to the counsel acting as prosecutor or which the prosecutor becomes aware of which could constitute evidence relevant to whether the respondent is guilty or not of professional misconduct or unsatisfactory professional conduct. (Rule 141)
• To inform the respondent of any grounds the prosecutor has for believing that evidence was obtained unlawfully or improperly.  (Rule 143)
• Not to ask questions of the respondent except in the presence of his or her lawyer. (Rule 144)

Some of the obligations on defence counsel also tend to advance the interests of professionals facing disciplinary proceedings:

• ‘Notwithstanding a barrister’s duty to the court to conduct proceedings as expeditiously as the interests of justice require, a barrister appearing for the accused is under no duty, other than by compulsion of law, to disclose to the court or to the prosecution the nature of the defence case.’ (Rule 153)
• ‘A barrister appearing for the accused should not make admissions of fact or consent to the absence of prosecution witnesses without first obtaining instructions.’ (Rule 153)

Here is Corrs Chambers Westgarth’s commentary on the Victorian bill. And here is Allens’s.  Lots of room here for a reinvigoration of the law of lawyers’ obligations to the Court. Justice Ipp’s ‘Lawyers’ Duties to the Court’ (1998) 114 Law Quarterly Review 63 ought to form the backbone of commentary to the Act, and ought to be compulsory reading for all those who join litigation departments.  This speech of the Federal Court’s Justice Barker in 2009 is also worth a look.

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.

When a client lodges a disciplinary complaint against a lawyer, she is deemed to have waived legal professional privilege to the extent necessary to allow the lawyer to respond to the complaint: s. 4.2.15, Legal Profession Act, 2004.  When someone other than the client is the complainant, the client’s privilege is unaffected. Section 4.4.16, which refers to complaints by clients and non-clients alike, says only that a solicitor may not decline to answer questions posed by the Legal Services Commissioner in disciplinary investigations on the basis of any duty of confidence.  The lawyer’s duty of confidence is different from the circumstances in which legal professional privilege arises.  It is more extensive: everything that is privileged is confidential in the sense relevant for the law of privilege, but not everything that is confidential is privileged; not by any means.

Given the different and precise treatment afforded to all complaints (including non-client complaints) on the one hand, and only complaints by clients on the other, any argument that the Act necessarily evinces an intention on the part of parliament to abrogate legal professional privilege in the case of a non-client complaint has a difficult path.

Any privilege which exists is, axiomatically, the client’s rather than the solicitor’s: Spalding v Radio Canberra Pty Ltd (2009) 166 ACTR 14 at 17.  But that does not mean that the solicitor may not assert the privilege in objecting to answering a question the answer to which would disclose privileged information.  In fact, lawyers have an obligation, even after the termination of their retainer,  to assert and protect the client’s privilege: Re Stanhill Consolidated Ltd [1967] VR 749 at 752; c.f. Legal Services Board v Garde-Wilson [2007] VCAT 1406 at [89].

Because only the client can waive privilege, any disclosure by a former solicitor in response to a purported compulsion by the Legal Services Commissioner without the consent of the client will not amount to waiver. That is because only the client can waive the privilege, and a former solicitor has no authority to waive the former client’s privilege on the former client’s behalf.  It is not the case that once a privileged communication has been let out of the bag, it is too late to put it back in. No less an authority than the Privy Council said exactly this: ‘The cat is still a cat. It can be put back in the bag.’ B v Auckland District Law Society [2003] UKPC 38 at [69]. Even where evidence of privileged communications has been erroneously allowed into evidence, through no fault of the privilege holder, and then referred to in publicly available written reasons in a case of great public interest (Rolah McCabe’s negligence claim against manufacturers of her cigarettes), the Court of Appeal has made orders requiring the cat to be put back into the bag to the extent possible by ordering all copies of them to be returned to the privilege holder, and a retrial conducted without reference to the privileged communications. See British American Tobacco Australia Services Limited v Cowell [2002] VSCA 197 at [192].

There is a case which suggests that an old Western Australian statute dissimilar to the Legal Profession Act, 2004 impliedly abrogated legal professional privilege by necessary intendment: Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217, albeit not in the context of non-client complaints, or even disciplinary complaints. But the Privy Council’s decision in B’s Case, above, does not seem to have been brought to the Court’s attention.  I blogged about the Privy Council decision here.  When I last looked, that decision had never been cited in Australia, and it is, as far as I know, relatively unknown in Australia, avid readers of this blog apart.

Other cases in other contexts tend to support the sanctity of the privilege in controversies originated by non-clients:

(a) where a non-client seeks a wasted costs order against his adversary’s lawyer, he must make out his case without recourse to privileged communications to which the respondent lawyer was party: UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd [2004] VSC 105, per Justice Habersberger at [45]ff, and the authorities there referred to;

(b) beneficiaries have standing to lodge costs disputes (a form of civil complaint) in respect of executors’ lawyers, but in Sinni v Esposito [2009] VCAT 135, VCAT’s Senior Member Howell held that the respondent solicitor was not entitled to give evidence of communications protected by client legal privilege in the absence of a waiver by the privilege holder.

When considering your obligation not to deliver up privileged documents, or otherwise divulge the contents of privileged communications, you should be aware of the scope of the advice limb of the privilege insofar as it relates to solicitor-client communications.  All those communications which are part of “… the continuum of communication and meetings between the solicitor and client ..” (Balabel v Air India [1988] 1 Ch 317 at 330 per Taylor LJ) should properly be construed as “… professional discourse in a professional capacity, with reference to transactions covered by a retainer to provide legal advice [and therefore] will be regarded as prima facie for the purpose of giving or receiving advice” (Wenkart v Australian Federal Police unreported, Federal Court of Australia, 11 November 1996, per Branson J). See generally AWB Limited v Cole [2006] FCA 571 at [85] – [100].

If you are unable to answer the complaint because of legal professional privilege, that might well be a reason for insisting on the summary dismissal of the dispute; depending on the circumstances, it might be intolerably oppressive to have to answer the allegations without recourse to your instructions.  Of course sometimes that will not be the case.  If a non-client accuses you of doing something that you did not do, the question of privilege may be irrelevant: you just deny the conduct.  On the other hand, it may be that your instructions provide powerful circumstantial evidence that it is inherently unlikely that you would have done what you did: for example, you might have advised your client of the forensic undesirability of exactly the course of conduct it is alleged you engaged in, or something your client said might suggest that it was in fact the client who engaged in the relevant conduct rather than you.  In the absence of that evidence, you might be faced with a clash of oral evidence between two individuals of approximately equal credibility, and the unavailability of the circumstantial evidence might make the investigation oppressive.

’51 Here, the applicant for an order restraining a solicitor from continuing to act against his former client is unable to identify any particular confidential information of which there is a danger of misuse in the current situation. However, there is a reasonable basis for the apprehension by Ficaro that it is not aware of all that has relevantly passed between Mr Evans and Mr Oliveri (or his firm) during the period in which Mr Oliveri was the solicitor on the record for Ficaro.

52 It seems to me that the fair-minded reasonably informed member of the public would have an expectation that a legal practitioner who has been retained by a company, and received instructions from a company director on the retainer of the company and for the benefit of the company, in relation to a claim made against the company (being a claim which related in part to what the company director himself was said to have done) should not be seen thereafter to act for that company director in prosecuting that very same claim against the company in the same set of proceedings. To the extent that such a member of the public were to be informed that the solicitor in question has resisted (or maintains a right to resist) the provision to the company of documents or information obtained from the company director while he was acting for the company, I think this would only strengthen the perception that justice was not being seen to be done if the retainer of that solicitor were to continue.

53 In the exercise of the court’s inherent jurisdiction over its officers and in the due administration of justice, I am persuaded that Mr Oliveri and his firm should be restrained from continuing to act for the defendant in these proceedings.’

’1. There be a further listing before me on 24 May 2010… for the purposes of giving Ms Y an opportunity to make submissions as to why I should not send my prima facie findings to the Legal Services Commission (Queensland) for the purpose of him considering whether to initiate and prosecute disciplinary proceedings against Ms Y.

2. Any affidavit evidence upon which Ms Y wishes to rely for the purposes of her submissions … is to be filed … [by] 21 May 2010.’

Ms Y was the husband’s solicitor.  The relevant parts of the judgment are set out on Stephen Page’s Australian Divorce Blog at this post.

Without having heard the solicitor’s side of the story, the judge considered that there was documentary evidence prima facie suggesting complicity in her client’s failure to disclose relevant matters and for allowing him to give evidence at trial which she knew to be false.  The Commissioner would presumably only ‘consider whether to initiate and prosecute disciplinary proceedings’ in the sense of treating the referral as a complaint by a non-client (i.e. by the judge) or as a catalyst for an own-motion investigation, and the wording of the order makes the proposed course sound a bit more fearsome than might be desirable.

I have seen this a number of times. Judicial referrals seem to be on the increase. Federal Magistrates seem especially fond of referring people for investigation.  At least two clients I can think of have been referred.  Another two clients have been referred by VCAT members.  Interestingly, not all of the referrals seem to result in investigations.  Far from it, in fact.

The Commissioner at least sometimes, and probably always, treats the referrals not as complaints but as catalysts to commence own motion investigations.  In Victoria, given that a complaint is a writing setting out the detail of the conduct alleged to amount to misconduct, and that an own motion investigation may only be conducted in the absence of a complaint, it is not entirely clear that treating these referrals as catalysts for own-motion investigations is appropriate.

The solicitor given the opportunity to show cause is placed in a difficult situation. Unless the solicitor vindicates him or herself, the Commissioner might well commence an own motion investigation regardless of whether or not the Court decides to refer.  Or a party (e.g. in this case,  the wife) or a party’s solicitor, or a party’s aunt, might make a complaint, taking the decision out of the Court’s hands, even if the Court considers the material not to justify a referral. I am not aware of any reason why the solicitor would be entitled, in showing cause, to rely on privileged information, or even confidential non-privileged information.  The show-cause order affords an opportunity to speak and does not amount to any form of compulsion which might trump confidentiality.

Unless the  solicitor can vindicate him or herself without recourse to professional confidences (as may be the case if the appearance of wrongdoing is attributable to a lie told by the client about the solicitor’s conduct, which might be denied without breaching any confidence, or disproved by non-confidential evidence (such as a passport indicating the solicitor was in Tahiti on the day he or she allegedly signed a letter he or she disputes the authenticity of) the solicitor might well choose not to take up the opportunity of showing cause, and confine her explanation to the confidential confines of a proper investigation. In that case, the solicitor may not care much about the effects of his or her conduct on her client’s litigation or reputation. But not only might staying silent until the confidential Legal Services Commissioner investigation afford a more comfortable experience for the solicitor (as well as delaying any publicity for a substantial period), it is far less likely to have deleterious consequences for the solicitor’s client in the client’s matrimonial proceedings.

In the case discussed in this post, though the judge seems to have contemplated making final orders in the lis between husband and wife prior to hearing from the solicitor, the possibility of the information disclosed in showing cause might well influence, or prompt, or even give grounds for, an appeal, or a re-opening of the final orders.

“I’m writing to inform you about a meeting I went to with Mr Aldo Decorrado, [the solicitor], and Mr. Lagana where in the room and I was on my own, when I went to this meeting I felt I was trapped, intimidated and was very frightened as they wanted me to sign documentation which I didn’t want to sign, I felt that I was forced to sign these documentation they asking me questions in which I did not know what they were talking about and I just kept saying that I didn’t remember and they were putting words in my mouth and every time I did speak I was told rudely to be quiet by [the solicitor].”

Counsel the solicitor retained did not end up calling the complainant as a witness on behalf of the solicitor’s client.  Instead, at trial, the witness gave evidence for the other side.  His evidence was not the evidence purportedly recorded in the statement taken by the solicitor.  He gave evidence that he was intimidated during the meeting with the solicitor.  Very embarrassing for the solicitor.

The solicitor was called on to respond before the embarrassment of the trial played out, however.  She denied each and every allegation in the witness’s complaint, but said she would give a comprehensive response only once the case was over.  It is not entirely clear to me why, if the solicitor’s position was that the complaint was a pack of lies, she could not say so before the trial.  Indeed, it is not entirely clear to me why a response denying each and every allegation was not a full and complete answer anyway, but the solicitor seems to have conceded that it was not.  The likely answer, I suppose, is that she denied each and every allegation of what she understood to be wrongdoing, but not each and every allegation.  She seems to have agreed, for example, that she interviewed the witness in the presence of her client, for example.

A barrister had advised the solicitor that refusing to answer until after the trial was the proper course.  The Commissioner prosecuted her for breach of the provision in the Act which requires lawyers to provide a ‘full written explanation’ of their conduct upon demand.  He succeeded, because the solicitor did not give as full an explanation as she could have even if she believed that she was obliged not to divulge to the Commissioner details of the controversial witness interview which might prejudice her client at the trial of the case.  For example, she failed to answer a letter from the Commissioner which enquired into the relationship between the matter the trial of which the solicitor wanted to have happened before giving a full response, and the matter for which the solicitor was taking the witness’s statement.  In the decision in relation to penalty ([2010] VCAT 182), Senior Member Howell found the solicitor guilty of unsatisfactory professional conduct rather than professional misconduct as contended for by the Commissioner, and fined her $1,000.  Somehow, the Commissioner’s costs of this little prosecution crept up to more than $9,000, and the solicitor was slugged with them too.

The solicitor defended the prosecution on two bases.  One was that she was not guilty of breaching the requirement to provide a full written explanation because she had made an honest and reasonable mistake that she was obliged not to do so.  Senior Member Howell decided that honest and reasonable mistake is a defence to a prosecution based on breach of s. 4.4.11 of the Legal Profession Act, 2004 as if it were a provision which gave rise to a criminal offence. As noted, however, the solicitor’s attempt to avail herself of the defence failed, because on the facts, it was not made out.