House of Lords restates law of negotiation (or ‘without prejudice’) privilege

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 [2009] UKHL 16 does not seem to revolutionise the law. Here is The Times‘s account of the decision.

Solicitor prosecuted for breach of rule in Browne v Dunne

Bizarre man.  A Queensland solicitor has been found guilty of professional misconduct for not obeying the rule in Browne v Dunne (well, amongst other things): Legal Services Commissioner v MPD [2009] LPT 08. Here are the reasons:

‘[18] in July 2004, [Mr Dryland] retained the respondent to resist an application for an apprehended violence order.  [19] Mr Dryland’s case involved a denial of the incident of violence alleged against him.  [20] During the hearing, the respondent, who acted as advocate, failed to put his client’s case when cross-examining.  [21] The Court made an apprehended violence order against Mr Dryland.  [22] It is not alleged that there was a connection between a failure to comply with the rule of practice in Browne v Dunn (1893) 6 R 67 and the outcome of the hearing. Rather, the undisputed case is merely that there was a failure to cross-examine appropriately.’

Is the draft witness statement held by the witness privileged?

Justice Finkelstein’s decision in Australian Securities and Investments Commission v Mining Projects Group Limited [2007] FCA 1620 has provided material for the last 2 posts.  Now, a third.  His Honour had to consider a question I have never been too sure about.  Say there is a case on foot, but it’s long before trial.  A solicitor for one of the parties interviews a witness.  The witness says his thing.  The solicitor turns it into a witness statement.  The solicitor sends the witness a copy.  There is no doubt that the original witness statement drafted by and retained by the solicitor is privileged under the litigation limb of legal professional privilege.  But what about the copy held by the witness?

Well, though it’s clearly privileged under the uniform evidence legislation, there’s conflicting authority in relation to the position at common law. The two most recent appellate authorities say the witness statement and the copy witness statement are both privileged. On the other hand, Chief Justice French plumped for the opposite conclusion while on the Federal Court. Even if it is privileged, that cannot mean that the witness cannot say the whole thing over again to anyone else who may care to enquire, because there is ‘no property in a witness’.  And I do not suppose the witness would have any positive obligation to assert the solicitor’s client’s privilege (anyone disagree?).  But depending on the cirucmstances, the witness may owe an obligation of confidentiality to the solicitor’s client which would give rise to equitable rights in the solicitor’s client if the witness gave up the witness statement.  Of course compulsion, such as an obligation of discovery under rules of court, properly administered interrogatories, a regulator exercising a statutory power, and a subpoena trump mere confidentiality.  It may be that in the face of compulsion, only if the solicitor’s client stepped in and asserted his or her privilege over the documents would the compulsion not result in delivery up of the witness statement.  Justice Finkelstein’s learned analysis went like this: Continue reading “Is the draft witness statement held by the witness privileged?”

The implied undertaking yields to compulsion; relevance to a second proceeding a powerful ‘special circumstance’

Justice Pagone’s decision in Griffiths & Beerens Pty Ltd v Duggan [2008] 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’”

Robyn Tampoe, Schapelle Corby’s solicitor

Update, 10 June 2009: Mr Tampoe has been struck off the roll of solicitors.

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 have only respect and honour for your Honour

Schadenfreude being a German word, I suppose this must be an example of überschadenfreude. To watch this man digging his own grave made my guts clench up with distress. An advocate turns up more than an hour late to run a criminal trial in a Las Vegas court for a man facing a life sentence. Claiming to be ‘stone cold sober’ things don’t go well, and he implores a judge not to breath test him in court, with the invocation ‘I have only respect and honour for your Honour’. The charm doesn’t work. It is not a happy ending.

Unilateral communications with the Court

Justice Young, the editor of the Australian Law Journal, has gone public with his frustration at litigants constantly ringing his associate to dob in the other side for missing deadlines. Here’s The Australian‘s article. He reiterates the unambiguity of the rule against unilateral communications. Generally, one never corresponds with a judge in relation to litigation. One communicates in writing or by oral submissions only in the courtroom under the theoretical glare of public scrutiny. If it is necessary to communicate a document outside of the courtroom, one addresses it to the judge’s associate. Judicial detachment is achieved by both parties to the communication communicating only through the associate. Continue reading “Unilateral communications with the Court”

Application by appellant to remove respondent’s trial counsel from appeal dismissed

In Chen v Chan [2008] VSCA 2, President Maxwell and Justice of Appeal Redlich dismissed an application by the appellant for an order enjoining the respondent’s solicitor and counsel from acting in the appeal. The applicant alleged that there had been wrongdoing by the respondent’s lawyers at the trial. In fact that was one of the grounds of appeal. It is certainly the case that where a lawyer is to be a witness, he ought not continue to act, especially as an advocate. But their Honours held: Continue reading “Application by appellant to remove respondent’s trial counsel from appeal dismissed”

Stephen Keim SC, Dr Haneef’s barrister

A delegate of John Britton, Queensland’s Legal Services Commissioner, has declined to lay disciplinary charges against Dr Haneef’s lawyer, Stephen Keim QC, despite finding a clear breach of a rule of professional conduct, and that — to my astonishment — Mr Keim gave his client’s record of interview to The Australian without having sought Dr Haneef’s instructions. Continue reading “Stephen Keim SC, Dr Haneef’s barrister”

So long as you don’t intentionally fail to turn up when briefed, no problem

Senior Member Howell’s decision in Crawford v Kennedy [2008] VCAT 5 begins:

‘Mr. Gilbert Crawford was a defendant in proceedings to be heard in the Magistrates’ Court on 29 March 2006. He was impressed by [the late] Mr. Peter [H] QC when he saw Mr. [H] on a television programme. Mr. Crawford went to see Mr. [H] and engaged him to appear on his behalf at the hearing in the Magistrates’ Court.’

A Melbourne solicitor, presumably giving evidence on oath, was described as ‘not an impressive witness’ who was ‘determined not to give an answer unfavourable to Mr. H,’ which she presumably won’t be too happy about. Interestingly, she is quoted in this article in The Australian as saying that her one-time boss, tax lawyer Michael Brereton was using Mr H almost full-time before Mr H died. Mr Brereton was being irritated by a dispute with the tax man in the Supreme Court, and retained Mr H to ameliorate the irritation, but was also briefing Mr H on behalf of his own clients, according to the article. It was Mr Brereton’s case which Mr H attended to on 29 March 2006, instructed by the female solicitor, who had by then gone out on her own, and was acting for Mr Brereton. Continue reading “So long as you don’t intentionally fail to turn up when briefed, no problem”

More on the Home Office v Harman implied undertaking in relation to litigation documents

In a case in which a company is a party, the company gives an implied undertaking to the Court to use documents obtained through litigation compulsion — discovery, subpoena, call for production, etc. — only for the purposes of the proceeding, at least until they come into the public domain, for example by being adduced into evidence at a public trial (see previous posts on the subject here). Street v Hearne [2007] NSWCA 113 is a long decision of the NSW Court of Appeal which discusses whether officers of such a company may themselves be dealt with for contempt if they use documents otherwise than for the purposes of the litigation. The Court said they could. Ipp JA went further, and said:

‘The rule applies to all persons into whose hand the discovered documents come, if they know that the documents were obtained by way of discovery or other compulsory Court process. The Court should not allow such persons to use those documents for purposes other than those for which they have been disclosed.’

And ignorance of the law is no defence.

Danger lurks in settling a disciplinary complaint against a lawyer

A man hired a firm. Then he hired a new solicitor. He had not paid the fees of counsel retained by the first firm, for which the first firm was responsible for paying to the barrister. The first firm handed over its files to the new solicitor upon receiving an undertaking from the second solicitor that he would pay the counsel’s fees. The new solicitor failed to do so. So the first firm (i) sued him in a court for what amounted to specific performance of the undertaking, and (ii) complained about the failure to meet the undertaking to the NSW Law Society (this was back in 2001). Nine months later, the Society charged the new solicitor with professional misconduct.

The hearing of the court case was listed for 17 January 2002. The new solicitor who was the respondent to the disciplinary charge hired a barrister to represent him at the trial of the civil court case. Through that barrister, the new solicitor negotiated a settlement with the first firm a day or two before the trial. The terms of that settlement got the barrister who negotiated it into trouble: in Council of the New South Wales Bar Association v DKLR [2007] NSWADT 201, NSW’s equivalent of VCAT’s Legal Practice List held the barrister guilty of unsatisfactory professional conduct. The settlement purported to settle not only the civil action, but also to dispose at the same time of the complaint. Continue reading “Danger lurks in settling a disciplinary complaint against a lawyer”

Peter Faris’s comments about drugs and the Bar

Update, 10 June 2008: The Bar’s Ethics Committee dropped the investigation without giving reasons.

Update, 23 November: The press just can’t seem to believe that anyone would be called Issac Brott, inevitably reverting to the more plausible Isaac Brott. And nor do they seem to be reading this blog. Here’s The Australian again claiming the Bar is ‘threatening to end the legal career’ of Peter Faris. I am not aware of any such threat.

Update, 13 November: I suggested below that if there is to be a debate it should be about the merits of the conduct rule they’re wondering if Mr Faris might have broken. It is a close relation of contempt by scandalising the judiciary. Oyiela Litaba’s recent article in the Deakin Law Review may be of interest in that regard: ‘Does the “Offence” of Contempt by Scandalising the Court have a Valid Place in the Law of Modern Day Australia?’ [2003] Deakin LRev 6. I should reiterate that I express no opinion on the question, and I am not sure what my opinion would be if I thought about it properly.

Original post: The Ethics Committee of the Victorian Bar has written to fellow Melbourne law blogger Peter Faris QC who has resigned as a consequence and joined the ranks of solicitors. When colourful Melbourne silk Peter Hayes died this year in circumstances said to have been associated with drugs, Mr Faris made comments on his blog about the prevalence of drugs at the Bar, but he did not name any names. That original post, and this one are still up on his blog. I am not sure whether it is the blog post, or other comments Mr Faris made, which got up the nose of the Ethics Committee. The Bar insisted on knowing the names, and when none were forthcoming, it wrote to advise him it was considering writing to the Legal Services Commissioner.

Two things interest me about the whole affair, the substance of which I do not propose to comment on. First, I think the free speech discussion could get a bit more sophisticated. That would involve a focus on the rule which prohibits conduct which would bring the profession into disrepute. Seems to me a debate about whether that is a good rule would be a much more fruitful one than anything presently being tossed around by commentators. Secondly, there is a misunderstanding about what role the Ethics Committee is playing. Being the pedant that I am, I point it out for the benefit of the newspapers. Continue reading “Peter Faris’s comments about drugs and the Bar”

Barristers and the media

Generally speaking, lawyers and the media are a subject of ongoing controversy. I felt very uneasy about Schappelle Corby’s barristers turning on her and suggesting that other members of her legal team were paying bribes. It seemed hard to believe that Corby had sanctioned that course. The English Bar Standards Board’s website summarises the situation in England. The relevant Victorian Bar’s rules of conduct are reproduced below. They restrict only comment on cases with which the barrister is directly involved, but there is of course a complex web of other rules and laws which restrict what barristers may say about court cases. Some of them which apply in NSW are enumerated on this page. The Victorian rules say this: Continue reading “Barristers and the media”

25 handy hints on affidavits in Victoria

I presented a seminar with Glenn McGowan SC on affidavits and written evidence recently. I wrote a long paper, mainly about the state courts, but incorporating some aspects of Federal Court procedure, which I will send to anyone who asks for a copy, and which will probably end up on the blog replete with useful hyperlinks one day. Meanwhile, here are some handy hints on affidavits which are not always properly understood:

  • a deponent who makes an affidavit in a work capacity can state their business address instead of their residential address, but the condition of doing so is that they state the name of their firm or employer, if any, and the position they hold: Supreme Court Rule 43.01(3);
  • in the Supreme Court, you can call for an electronic copy of an affidavit to be emailed to you if served with a hard copy, by invoking Practice Note No. 1 of 2002, (2002) VR 107;
  • you can call for any document referred to in an affidavit by a notice to produce under Supreme Court Rule 29.10(2), and the rule is interpreted to mean that you can call for production of any document referred to in an exhibit to an affidavit: Williams [I 29.01.345] citing Re Hinchcliffe [1895] 1 Ch 117; Continue reading “25 handy hints on affidavits in Victoria”

Arbitrators slice $40 million off plaintiff lawyers’ breast implant proceedings fees

22 July Update: what may be the first ever legal blog, and without doubt one of the best, Overlawyered has  a link to the arbitrator’s ruling, and links to some old posts dealing with the interlocutory stages of the case. And here’s’s article.

Houston plaintiff lawyer John O’Quinn has been ordered to repay clients $40 million in legal fees after he was found to have charged his clients for bar association fees, overheads, and flowers as part of a ‘general expenses fee’ of 1.5% of the settlement. Ironically, his former clients ganged up on him. In a class action. They wanted all the fees he charged them back — estimated at $0.66 billion:

‘A Texas Supreme Court case from 1999 opened O’Quinn up to the possibility of having to pay back all the collected legal fees. That case, Burrow v. Arce, held that if a lawyer breaks his fiduciary duty to a client by putting his own interest above the client’s, he can lose part or all of his fee — even if the lawyer did a good job.’

I’ve noted that case before. Scary. Not that he got away without penalty, exactly:

‘The order says that O’Quinn, through three legal entities under which he has practiced law, must pay back [AU$12] million he improperly charged clients and a [AU$28.5] million penalty because he broke his contract with them.

Contracting out the dirty work

Via Freivogel on Conflicts: The New York County Lawyers’ Association has published an ethics opinion on the propriety of hiring investigators to communicate with counterparties in ways which would be unethical for the lawyer hiring them. Prima facie improper with only very limited exceptions, they say. Unless what is contemplated is pre-litigation, it seems to me that an unaddressed question is the operation of what the Americans call “the rule against communicating with a represented opponent” (rule 4.2 in the quote below). On that topic, Freivogel cites this case:

Use of lying investigator with hidden recording device to interview adversary’s employees causes violation of Rules 4.2 and 8.4(c) and exclusion of evidence. Midwest Motor Sports d/b/a Elliott Power Sports, Inc. v. Arctic Cat Sales, Inc., 347 F.3d 693 (8th Cir. 2003). Continue reading “Contracting out the dirty work”

The American version of the Briginshaw standard of proof

In a stinging dissent against the conclusion of a majority of the Supreme Court of Washington that a lawyer had breached a conflict of duties rule in representing multiple parties, one judge set out what sounds a lot like the US version of the Briginshaw standard of proof which prevails in Australian and English disciplinary hearings, at least in relation to serious allegations of wrongdoing. The case is In re Discipline of Marshall. Hat tip to Legal Profession Blog for bringing the case to my attention. The majority judgment is here. The dissenting opinion is here. It said: Continue reading “The American version of the Briginshaw standard of proof”

Public reprimand for intemperate written submissions

A Delaware attorney has been publicly reprimanded for intemperate written submissions. The judgment goes through the American superior court law on where the boundary between zealous advocacy and impermissibly intemperate attack lies. Great minds differed; the Supreme Court overturned a decision of the Board of Professional Responsibility which found that the language did not warrant discipline. The impugned words were: Continue reading “Public reprimand for intemperate written submissions”