Allison v Tuna Tasmania Pty Ltd [2011] TASSC 52 is a case decided on the rarest ground for restraining a lawyer from acting, namely that ‘A fair minded reasonably informed member of the public would conclude that the proper administration of justice requires that the lawyer be prevented from acting in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.’ The leading case in Victoria is Grimwade v Meagher (1995) 1 VR 446, which was relied on by Holt AsJ.
A Queensland barrister acted for the plaintiff in Tasmanian litigation on a no-win no-fee basis. He was in financial difficulties, owing a lot of money. He had a social relationship with the plaintiff and stayed at his home. He arranged to meet the defendant alone over lunch without the consent of anyone in the defendant’s legal team. This was contrary to r. 51 of the Queensland 2011 Barristers’ Rules, and amounted to ‘misconduct’. The barrister told the defendant, in the 20 minute meeting, that he thought the plaintiff would recover about $25 million from the defendant but he could convince the plaintiff to settle for $2 million. He said initially he did not involve the defendant’s solicitor because he did not trust him, without advancing any rational basis for the lack of trust, but later said that he let his emotions get the better of him. In combination these factors proved that the barrister lacked the independence and objectivity necessary to represent the plaintiff without bringing the administration of justice into disrepute, and the Supreme Court of Tasmania restrained him from acting further.
The application was made within the original litigation, and the order was as follows:
‘[The barrister] is to provide no further legal services, paid or unpaid, direct or indirect, in connection with the action.’
Of course the barrister broke the rules, but don't you think the order is a bit of an overkill? Wouldn't preclusion from appearing be sufficient (ie, order 1 as sought by the defendants)? Why should, for example, the barrister not offer advice on an unpaid basis? Does the order as made mean that the barrister could not even pass on the fruits of his work or any analysis done so far to either the client or to his successor (or prospective successor) as the poor plaintiff's legal representative?