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.
By way of example of what I mean by litigation being obese with toleration of falsehoods, it is often said that it is neither illegal or unprofessional knowingly to plead a case based on false factual premises (as opposed to adducing false evidence) unless there is a specific rule which requires it (such as the rule which requires a proper factual foundation before pleading fraud, or a rule of court requiring pleaders to certify their belief in their clients’ pleadings). Consider also the rarity of a perjury prosecution.
The barrister in question is one of Queensland’s most eminent torts lawyers: a barrister of nearly 20 years’ standing, one of the authors of the new 5-volume Civil Liability Australia, a one-time Queensland President of the Australian Plaintiff Lawyers’ Association, handpicked by the President of the Australian Lawyers Alliance Queensland for the taxpayer-funded job of assisting the alleged victims of Jayant “Dr Death” Patel’s Bundaberg flesh carving artistry, and chosen as a decision maker in Queensland’s Anti-Discrimination Tribunal. According to The Australian, the prosecution is the result of a crackdown on lawyers who withhold facts.
The barrister went to a mediation and negotiated a settlement in favour of his client based on medical reports which suggested the client had a life expectancy of 80% that of the average healthy male when he had in fact been found, since the report, to be riddled with primary and secondary cancers, reducing his life expectancy. The insurer on whom the client was claiming had no medical reports of its own. The barrister was careful not to represent that his client’s life expectancy was as estimated by the medical reports, or make any oral representation about life expectancy. Indeed, there is no finding in the decision that the barrister actually positively represented at the mediation that the medical reports (and other expert reports premised on the medical reports) were relied on by the claimant (see [22]). But such claims had been made between counsel before the mediation and in a position paper delivered before the mediation.
The barrister did so whilst bound by professional conduct rules 21, 51 and 52. Rule 21 says “a barrister must not knowingly make a misleading statement to court on any matter, and “court” is defined to include a “mediation”: rule 15. The other rules said:
“51. A barrister must not knowingly make a false statement to the
opponent in relation to the case (including its compromise).52. A barrister must take all necessary steps to correct any false
statement unknowingly made by the barrister to the opponent as
soon as possible after the barrister becomes aware that the
statement was false.”
The Victorian equivalents are very similar:
“19. A barrister must not knowingly make a misleading statement to a court [including a mediation] on any matter. [Roisin Annesley’s Good Conduct Guide says at [3.4] “Misleading conduct may be by act or omission, express or implied”, and gives an example of a barrister asked in a custody battle whether the mother had commenced a relationship with a new man answered negatively, knowing she had commenced a lesbian relationship.]
50. A barrister must not knowingly make a false statement to the opponent concerning the facts of, evidence in support of or law applicable to the client’s case.
51. A barrister must take all necessary steps to correct any false statement of the kind referred to in Rule 50 unknowingly made by the barrister to the opponent as soon as possible after the barrister becomes aware that the statement was false.”
