Litigant may not represent himself in those bits barrister spurns

In Malouf v Malouf [2006] NSWCA 83, (2006) 65 NSWLR 449 the NSW Court of Appeal, led by President Mason disapproved of the practice allowed below of a litigant appearing for himself in relation to some points and being represented in relation to others. Warwick Malouf had sued his brother for fraud, and represented himself, and lost ([2005] NSWC 9). He appealed, claiming that the judge had not assisted him sufficiently. What seems likely to have happened is that Mr Malouf filed a fairly average set of grounds of appeal, retained counsel who told him so, drafted some good ones, which were tacked onto the existing grounds by Mr Malouf, and the barrister said he could not support Mr Malouf’s grounds and would only make advocacy by reference to the new ones. Mason P said of this ploy that it had the tendency of much mischief: Continue reading “Litigant may not represent himself in those bits barrister spurns”

Misconduct constituted by barrister’s misleading mediation statements

In Legal Services Commissioner v M [2006] LPT 012, a leading Brisbane barrister was fined $20,000 (his fees of $9,100 plus $10,900 penalty) for engaging in fraudulent misrepresentation on the instructions of his client in a mediation in which the insurer was induced to pay the barrister’s cancer-riddled plaintiff client over $1 million on a claim based on a near-normal life expectancy. He was found guilty of professional misconduct, and publicly reprimanded (I wonder whether a solicitor was sitting blithely by and escaped prosecution). Frankly, I reckon he was lucky to get away with a fine and reprimand given that he contested the charge by reference to the “startling” contention, described by the Tribunal:

“[25] The respondent argues that his conduct in continuing to rely on the Evidex reports without disclosing the cancer facts was not tantamount to some representation that he was not aware of facts that could deleteriously impact on longevity.  His case characterizes the compromise negotiations as “commercial”, conducted on a tacit, common assumption that, in deciding whether to settle, the parties would rely exclusively on their own resources and information.  There would not, it is said, have been a reasonable expectation that influential information communicated during the negotiations would not knowingly be false.”

But the content of what must surely be the pre-eminent professional non-client duty – not to mislead — is not well-known, and litigation is so obese with toleration of falsehoods, that I have some limited sympathy for the confusion the barrister claims to have fallen into, having researched the issue. Because, contrary to the idiotic utterances of some regulators, legal ethics are not intuitive.  There is no “gut feel” test. Legal ethics frequently involve a duty not to volunteer the truth. Continue reading “Misconduct constituted by barrister’s misleading mediation statements”

The duty not to mislead in negotiation

I would be very surprised if the most commonly committed species of misconduct were not engaging in misleading conduct in negotiation. But there is very little written about it. Justice John Byrne of the Supreme Court of Queensland, sitting in the Legal Profession Tribunal, in Legal Services Commissioner v Mullins [2006] LPT 012 (see next post) footnoted a number of articles on the topic, most of which have hyperlinked citations: Continue reading “The duty not to mislead in negotiation”

Mr Howell releases Client from implied undertaking as to documents

Alessi’s Case is a long-running application to set aside a costs agreement commenced in the Legal Profession Tribunal in 2003. The Alessis succeeded in having their solicitor’s costs agreement cancelled and two bills set aside in [2005] VLPT 18. The latest decision — [2006] VCAT 149  is just a little one about an application by the Clients to be released from what used to be known as the Home Office v Harman undertaking, that is, the undertaking by a litigant or other person who has received information through a process of compulsion such as discovery not to use the documents for any purpose other than the prosecution of the matter in which the information is produced.

The solicitor had discovered over 1,000 documents. There were related court proceedings in which the solicitor was suing the Alessis for his fees, in which a company associated with the solicitor was suing on a loan to a company associated with the Alessis, and in which various consultants engaged by the solicitor were suing the Alessis for fees. The Alessis applied for a waiver of the implied undertaking en masse on the basis of their general relevance to one or more of the 6 related proceedings. That application was granted. Continue reading “Mr Howell releases Client from implied undertaking as to documents”

Roisin Annesley’s Victorian Barristers’ practice guide

The Bar has produced a practice guide. It is a great achievement and stands as a beacon for the Law Institute’s future efforts at promulgating knowledge of the practice rules. The Bar actually has something called the Professional Standards Education Committee. Written by Roisin Annesley, it was launched by Victoria Marles, the Legal Services Commissioner on 18 October 2006, and distributed free to every member of the Bar. Annesley has done a lot of work as Counsel Assisting the Legal Profession Tribunal (and continues to do occasional work assisting the Legal Practice List at VCAT). A doyen of professional discipline, Paul Lacava SC, and a judge who has excoriated Professional Standards, Justice Gillard, are credited with substantial involvement. It has chapters on: Continue reading “Roisin Annesley’s Victorian Barristers’ practice guide”

3 years’ holiday for not making ongoing discovery

Guss v Law Institute of Victoria Ltd [2006] VSCA 88 (Maxwell P gave the lead judgment, Callaway and Chernov JJA agreeing)

A solicitor’s right to practice was suspended for three years and he was ordered to pay costs of $31,500 for failing to comply with the obligation of ongoing discovery in relation to what was prima facie a privileged copy of a document produced by an expert witness a few days before trial which, had the existence of the copy document been disclosed to the other side, might have put the other side onto a train of enquiry which might have led to relevant evidence. Continue reading “3 years’ holiday for not making ongoing discovery”

A duty not to tempt witnesses to breach likely confidentiality obligations?

Update, 22 December 2009: I came across this article recently: ‘Using Information: Witnesses Under Obligations of Confidence’ (2002) 22(11) Proctor 16.

Original post:

AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464; Bernard Murphy “Witnesses and Confidential Information” Litigation Lawyers’ Section Newsletter, March 2006

Melbourne class action litigator Bernard Murphy was found by the NSW Supreme Court to have engaged in the tort of inducing breach of contract by acting with a reckless disregard as to whether asking questions of a “smoking gun” ex-employee witness was likely to involve a breach of the witness’s confidentiality obligations to GIO. [Update, Jan 2007: compare this case.]
Continue reading “A duty not to tempt witnesses to breach likely confidentiality obligations?”