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?”

Issac’s holiday; plea bargaining in disciplinary charges examined

Issac’s style of legal letter writing is legendary. There are some quite extensive private collections out there. I recall one letter said to have been penned by the man himself which began ‘Dear Sir, you are a petulant lunatic,’ and after some substantive words continued ‘You are a very small cog in a very big wheel and it seems that it will long stay that way.’

I have long been a fan of his extremely colourful and yet less-is-more webpage, which has said, for as long as I can remember, in yellow and red text surrounded by blue fire ‘We at Issac [B] and Co make a firm commitment to a flexible, approach to law’.  Such heterodox ebullience can only be tolerated so long in the dark suited depressed salaryman world of the Melbourne legal fraternity, and the other day, the sombre might of the law came down on the iconoclast for what the humourless powers that be characterised as too much flexibility. Continue reading “Issac’s holiday; plea bargaining in disciplinary charges examined”

Latest Family Court lawyer’s conflict case

Bracewell & Southall [2008] FamCA 687, a 13 August 2008 decision of Justice Bennett of the Family Court sitting in Melbourne is the latest on lawyers’ conflicts of duties in the context of family law — a whole relatively separate sphere of analysis of lawyers’ conflicts.  It seems to me that injunctions restraining lawyers from acting on the third ‘administration of justice’ limb are becoming more common.  This is an example of the trend.  Solicitors who acted for the Department of Human Services in a child protection application against a woman were restrained from subsequently acting for her husband in matrimonial proceedings involving issues in relation to a different child borne not to the husband but to another man. The conclusion read: Continue reading “Latest Family Court lawyer’s conflict case”

Lawyers and the criminal law

Reproduced below is a blog post about ‘bill padding’ from the US site, Legal Blog Watch. That is where lawyers say work took them longer than it really did, and so charge commensurately more, or even make up the fact that they did work, and charge for it. Sometimes I read articles like this and wonder whether lawyers don’t think they live in a different world where, if they commit crimes, what will happen to them is that they will be dealt with by professional discipline. They think that, or course, because it’s more or less true, unless you get caught stealing from your trust account.  But the criminality of time sheet crime should not be allowed to be buried under anodyne euphemisms. ‘Bill padding’ sounds kind of cute, a necessary evil. It is a kind of newspeak. Time to do away with it. Let’s call it ‘rapacity fraud’.  It is tolerated by the profession in this sense.  There are generalised allegations of widespread bill padding.  Talk privately to costs consultants and they will tell you all about it.   But I have never heard of a firm which has even basic anti-fraud procedures to detect the practice.

My point kind of makes itself when the author says ‘allegations of bill padding … drew … strong criticism about the practice from legal ethics experts’.  Experts say fraud is bad?  Well shit Sherlock!  The 9th commandment does kind of feature relatively prominently in most systems of law.  We’re going to have the case one day when someone actually subpoenas a firm’s electronic billing system and its metadata, and diaries, analyses when the billing entries were made, and cross-examines lawyers on how they could have billed 180 units in a day and still made it to the client function at 6 p.m., or why, having billed relatively consistently every day, they would suddenly remember on the 30th of the month some comparatively vaguely described units they had forgotten to record mid-month, or why given that they had used a precedent for similar documents three times previously in the same month, they decided to draft the document from scratch, only to end up with — you guessed it — the same document as the precedent.  Now, that article: Continue reading “Lawyers and the criminal law”

Kylie’s one-time lawyer goes down, with a ‘disgraceful and dishonourable’ finding

On 13 August 2008, Deputy President O’Dwyer found charges of misconduct at common law made out against Kylie Minogue’s one-time solicitor, the man towards the centre of the government’s Operation Wickenby investigation, Michael Brereton. See Legal Services Commissioner v Brereton [2008] VCAT 1723. Mr O’Dwyer found he had transferred more than $2.3 million of clients’ money out of his trust account contrary to the trust accounting rules. Since he did not turn up to the hearing, the finding is not altogether surprising. His counsel explained the solicitor ‘was attending to important business matters overseas, having invested in an information technology business with links in America and Europe,’ which makes me wonder whether he could not have used some of his investments to appear by video link. The Age‘s report is here.

The Commissioner is to be commended for making some sense of the very complex business transactions in which the solicitor and his clients were involved, and achieving the making out of the allegations of misconduct which were made out. So too the Tribunal, which had a difficult task in the absence of participation by the solicitor, and produced a spare but careful set of reasons. But it was not all wins for the Commissioner. Continue reading “Kylie’s one-time lawyer goes down, with a ‘disgraceful and dishonourable’ finding”

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”

Both sides apply to restrain the other’s lawyers from acting

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 [2008] 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”

Rise of the celebrity QC and of Australian lawyer rankings

Update, 7 June 2008: The Age‘s weekend magazine had a front cover profile of Dave Hughes, and the same day the June Australian Financial Review Magazine had a front cover profile of Tom Hughes. Diverse and powerful as Tom’s family is, I do not think it counts Dave as a member. This is the most fawning, glossy QC portrait in the series: no fewer than 7 photos, two full-pagers.   The hagiographical profile reminded me that Tom is art critic Robert Hughes’s brother.  Before court, he works Jesuitically for four hours every day on the 62nd floor of the MLC Tower, leaving for work at 4.55 a.m.  He has been a barrister for almost 60 years. These days, his junior is often his son Tom Hughes.  His daughter Lucy is one-time mayor of Sydney and happens to be married to Malcolm Turnbull.  France gave him a legion of honour for his service in World War II.  He was mates with Sir Owen Dixon, Sir Frank Packer, and Sir John Gorton. He argued in the Privy Council.  He was for 16 months Attorney-General in Gorton’s government: John Howard was his campaign manager when he got elected.  He enthused mightily about the American intervention in Vietnam. What is most interesting however, is that this is not the first front page profile Hughes has suffered:

‘In early 1978, the now-defunct Bulletin magazine, owned by Kerry Packer’s Australian Consolidate Press, splashed across its cover a large photo of Tom Hughes, with a story headlined “From Silk to Riches — Portrait of a $1,000 a day QC”.  Soon afer the article appeared, its author, Malcolm Turnbull, sent a bouquet of roses around to Tom Hughes’s chambers for his daughter, Lucy, then aged 19, who had just completed first-year law.  Turnbull married Lucy Hughes two years later.’

Update, 23 April 2008: Now The Times has published its list of the 100 most powerful English lawyers. Sir Igor Judge is right up there in the top ten.

Original post: It’s not just Peter Faris, with his blog, his until-recently radio show, his comments about the Fijian judiciary in the Fiji Times, and repeated Age profiles. Has anyone else noticed the rise of the celebrity QC profile? The glossy Melbourne Magazine, published monthly by The Age, had a profile of Julian Burnside QC last year. Like Geoffrey Robertson QC (remember his hypotheticals?), Mr Burnside writes and his profile was part of the publishing cycle, tied in with his new book. But Colin Lovitt QC — best known for representing Jaidyn Leskie’s babysitter, Greg Domaszewicz — profiled in Royal Auto? (Turns out from the profile he did the whole thing pro bono.) And, Alan Myers QC, of all people, the very exemplar of the traditional Bar, reminiscing about his first tax case in The Australian Financial Review? Is it a trend I see?

Mr Myers’ profile was part of another new phenomenon, lawyer ranking blinged up to the next level, a great big US-inspired lift-out supplement to the AFR’s Legal Affairs pages. Continue reading “Rise of the celebrity QC and of Australian lawyer rankings”

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”

Britney Spears’s ‘doctor’ criticised for public comments

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”

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”

Latest case on privilege and inadvertent disclosure

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 [2007] 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.

Yet another corporate counsel privilege case; the US position.

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) [2007] 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.

Father instructs lawyer as daughter’s agent then daughter sues him: whose privilege?

Here’s a weird old privilege case: Sugden v Sugden [2007] 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.