Lord Justice Mummery’s judgment referred to in the previous post is admirably short at 34 paragraphs (and the other two judges agreed — very un-Australian) but it it is an exemplar of the worst excesses of EOD, an excrescence on legal writing which achieves precisely the opposite (confusion) of that which it has an air of promoting (clarity). If I were the Lord Chancellor, I would direct that no pleading, affidavit, or judgment contain any TLAs. Or FLAs for that matter. Definitions in legal writing are out of control. I would also direct that any defined term which is not again used in a document render its draftsman liable to a fine payable to charity, and that a lesser fine apply to any definition which the man on the Clapham omnibus would consider reasonably unnecessary. I would task the recipient charities with enforcement and suggest they develop a robotic text crawler which would search the online annals of legal writing for the work of those who feel it necessary to define, say, Ladro Pizza Pty Ltd as “Ladro Pizza” where there is no sense of “Ladro Pizza” which could be confused with the sense of it as the shortening of the name of the company (as would be the case if that company owned the ridiculously popular Fitzroy pizzeria named “Ladro”). Consider this abomination of legal writing from Lord Justice Mummery’s judgment: Continue reading “Excess of definacronymisation (”EOD”)”
UK okays lawyers attacking former client’s honesty across a Chinese wall
The little guy in the centre is Lord Justice Mummery of the English Court of Appeal, an Oxford man shown here awarding some trophies at Oxford. He wrote the lead judgment in Gus Consulting GMBH v LeBoeuf Lamb Greeme & Macrae [2006] EWCA 683 handed down in late May. The American law firm against which the injunction was sought wheeled out Lord Neill of Blanden QC, a former judge, Vice-Chancellor of Oxford, Chairman of the Bar Council, Chairman of the Senate of the Inns of Court, Chairman of the Press Council, director of The Times, legal adviser to the Synod of the Church of England, and Chairman of the Committee of Enquiry into Regulatory Arrangements at Lloyds. About as English as a pork pie, and a one-time member of the Committee on Standards in Public Life to boot. He got a difficult argument across the line.
A law firm discovered that it was acting in a dispute “which involve[d] a consideration of work they themselves did for those clients [7 to 8 years previously] and an attack on the honesty and integrity of their former clients in those very transactions”. Worse, the conflict had been missed when the lawyers who were mounting the attack on the former client joined the firm, bringing the new client with them. But until the conflict was noticed, the month after the lawyers’ move, the new members of the firm had been oblivious to the work previously done by it for the people they were now attacking, and steps were quickly put in place to prevent any access to the former client’s files. The Court refused an injunction sought by the former client enjoining the firm from acting against it, finding the Chinese wall to be efficacious. This is a case which falls squarely within what is governed by the Victorian Court of Appeal’s duty of loyalty to former clients: the taking up of cudgels against a former client in relation to the same or a related matter.
Having read many conflict cases, I strongly suspect cases involving mergers result in injunctions much more rarely than others. Furthermore, the fact that the injunction would have resulted in the loss to the new client of a legal team which had obviously been engaged for 3 years in a complicated dispute must have been a matter of great influence, though it is an entirely hidden factor in the reasons.
So the former client cannot enjoin its former lawyers from taking up the cudgels against it in a related matter. But what is to stop the new client of the firm from suing it for breach of the duty of disclosure (which is the duty which conflicts with the duty to keep the former client’s information confidential in these kinds of cases) when it fails to disclose that which it has undertaken to the Court not to disclose though it is relevant and “goes to the heart of” a key issue in the arbitration?
Continue reading “UK okays lawyers attacking former client’s honesty across a Chinese wall”