Here’s a weird old privilege case: Sugden v Sugden  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.
Here’s the state of the law in the US on the vexed issue of whether companies can assert legal professional privilege (aka client legal privilege) for the advice of employed lawyers (aka in-house counsel). It discusses the case of In re Vioxx Prods. Liab. Litig., 501 F.Supp.2d 789 (E.D. La. 2007)
In a case in which a company is a party, the company gives an implied undertaking to the Court to use documents obtained through litigation compulsion — discovery, subpoena, call for production, etc. — only for the purposes of the proceeding, at least until they come into the public domain, for example by being adduced into evidence at a public trial (see previous posts on the subject here). Street v Hearne  NSWCA 113 is a long decision of the NSW Court of Appeal which discusses whether officers of such a company may themselves be dealt with for contempt if they use documents otherwise than for the purposes of the litigation. The Court said they could. Ipp JA went further, and said:
‘The rule applies to all persons into whose hand the discovered documents come, if they know that the documents were obtained by way of discovery or other compulsory Court process. The Court should not allow such persons to use those documents for purposes other than those for which they have been disclosed.’
And ignorance of the law is no defence.
Update, 10 June 2008: The Bar’s Ethics Committee dropped the investigation without giving reasons.
Update, 23 November: The press just can’t seem to believe that anyone would be called Issac Brott, inevitably reverting to the more plausible Isaac Brott. And nor do they seem to be reading this blog. Here’s The Australian again claiming the Bar is ‘threatening to end the legal career’ of Peter Faris. I am not aware of any such threat.
Update, 13 November: I suggested below that if there is to be a debate it should be about the merits of the conduct rule they’re wondering if Mr Faris might have broken. It is a close relation of contempt by scandalising the judiciary. Oyiela Litaba’s recent article in the Deakin Law Review may be of interest in that regard: ‘Does the “Offence” of Contempt by Scandalising the Court have a Valid Place in the Law of Modern Day Australia?’  Deakin LRev 6. I should reiterate that I express no opinion on the question, and I am not sure what my opinion would be if I thought about it properly.
Original post: The Ethics Committee of the Victorian Bar has written to fellow Melbourne law blogger Peter Faris QC who has resigned as a consequence and joined the ranks of solicitors. When colourful Melbourne silk Peter Hayes died this year in circumstances said to have been associated with drugs, Mr Faris made comments on his blog about the prevalence of drugs at the Bar, but he did not name any names. That original post, and this one are still up on his blog. I am not sure whether it is the blog post, or other comments Mr Faris made, which got up the nose of the Ethics Committee. The Bar insisted on knowing the names, and when none were forthcoming, it wrote to advise him it was considering writing to the Legal Services Commissioner.
Two things interest me about the whole affair, the substance of which I do not propose to comment on. First, I think the free speech discussion could get a bit more sophisticated. That would involve a focus on the rule which prohibits conduct which would bring the profession into disrepute. Seems to me a debate about whether that is a good rule would be a much more fruitful one than anything presently being tossed around by commentators. Secondly, there is a misunderstanding about what role the Ethics Committee is playing. Being the pedant that I am, I point it out for the benefit of the newspapers. Continue reading “Peter Faris’s comments about drugs and the Bar”
Generally speaking, lawyers and the media are a subject of ongoing controversy. I felt very uneasy about Schappelle Corby’s barristers turning on her and suggesting that other members of her legal team were paying bribes. It seemed hard to believe that Corby had sanctioned that course. The English Bar Standards Board’s website summarises the situation in England. The relevant Victorian Bar’s rules of conduct are reproduced below. They restrict only comment on cases with which the barrister is directly involved, but there is of course a complex web of other rules and laws which restrict what barristers may say about court cases. Some of them which apply in NSW are enumerated on this page. The Victorian rules say this: Continue reading “Barristers and the media”
Speaking, as I was in the last post, about AILA’s Geoff Masel lecture series, here is the 2006 lecture, delivered by Tony Scotford of Ebsworth & Ebsworth’s Sydney office. It is yet another contribution to the much talked about but little done about problem of insurer-appointed defence lawyers in liability claims and their potentially conflicting duties to the insurer and the insured. I hope he will not consider me too impertinent in reproducing his bibliography as an incomplete list of sources on this question (featuring papers by both Geoff Masel and Greg Reinhardt). Continue reading “A non-exhaustive bibliography on lawyers’ conflicts of duties between insurer and insured”
I was already a fan of the first edition of Judge Stephen Walmsley SC, Alister Abadee, and Ben Zipser‘s excellent Professional Liability in Australia, published by Thomson, and had been waiting for the new edition with interest. I got myself a copy the other day. It’s good, and there are substantial additions since the first edition, including a lot on expert evidence, a new bit on professional discipline, analysis of the Financial Services Reform Act, 2001, analysis of the cases on the civil liability acts and a good analysis of proportionate liability.
It is a text which delves into all of the legislation which clusters around professional liability these days and grapples with it, a thankless task for an Australian text writer compelled to read and understand all of the states’ and territories’ regimes and then synthesise them. So the availability of compensation in professional discipline regimes is treated properly, as is the effect of professional standards legislation, which caps liability for scheme mebers. The research is wide-ranging and thorough: a VCAT decision is cited. It is written from a practical perspective rather than a theoretical perspective. There is not the over-reliance on English authority which sometimes characterises texts in this area. The writing tends to take positions rather than carrying on at great length about parallel or divergent lines of authorities without suggesting which is to be preferred. One suspects that bad decisions have simply been ignored in the hope that they will be forgotten. If only more text writers would operate in this fashion.
Professional negligence is one of those areas of law in which everyone claims to be a specialist. There are, for example, 387 barristers at the Victorian Bar who claim on their web profile to practise in professional negligence. Then there are undoubtedly many others, like me, who haven’t listed their practice areas using the scheme which allows for searching like that.
Thomson has kindly offered a 10% discount for readers of this blog if you go to their bookshop at 160 William St, Melbourne. Alternatively, the book can be purchased online, for $220 inclusive of postage and handling.
This is a workmanlike little post, designed simply to trap into the world of this blog for when I need them next in court the legal principles discussed in Acting President Bowman’s decision in ZGW v Legal Services Board  VCAT 1406, casenoted in the previous post. The parties’ arguments are also reproduced below in part. Continue reading “Home Office v Harman: some law about its application to VCAT”
Update, 21 August 2007: Latest case on the implied undertaking: Street v Hearne  NSWCA 113.
When a person comes into possession of documents through legal compulsion, they are under an implied obligation not to use them for any purpose but the purpose for which the compulsion operates. Most lawyers know the rule insofar as it applies to discovered documents. But it applies to all manner of compulsion and to information as well as documents, including subpoenaed documents, and documents obtained by the Legal Services Commissioner under s. 4.4.11 (in relation to disciplinary complaints) (or, now, in relation to civil disputes, s. 4.3.5(3)) of the Legal Profession Act, 2004. It is best known as the rule in Home Office v Harman after the House of Lords decision in that case reported at  1 AC 280.
The latest decision in the saga of Australia’s best-known female criminal lawyer, ZGW v Legal Services Board  VCAT 1406 (see for background my earlier posts here and here and here) is a ruling on an application by the Legal Services Board to be released from the obligation. It is another of Acting President Bowman’s long, honest, and thorough judgments. His Honour is a hard-working judge, and I like the way he sets out with fidelity the parties’ arguments, and then deals with them one by one. It is a diligent, and intellectually honest approach, and goes beyond what could be, and often is, gotten away with in some administrative tribunals. More generally, VCAT is to be commended for having the courage to publish each and every new written decision on the internet.
The case was argued by some heavy-hitters: Joe Santamaria QC for the Board and Gerry Nash QC for the solicitor. Mr Nash prevailed. The tussle was over a police file on the solicitor, and: Continue reading “The obligation not to use documents obtained under compulsion except for the purpose compelled”
Here’s a link to a little article on the law relating to the possible conflicts of duties faced by a lawyer retained by a liability insurer to act for its insured in the defence of proceedings against the insured. It discusses 3 English cases:
- Brown v Guardian Royal Exchange Assurance;
- TSB Bank v Robert Irvin; and
- Zurich Professional v Karim.
And here’s a link to an excellent solicitors’ liability publication from Barlow Lyde & Gilbert. It deals with the new professional conduct rules in England, solicitors’ liability for mortgage fraud, lawyers’ obligations to their opponents, and an unusual case in which liability insurers were ordered by the Court to pay £1 million in legal costs of a failed defence even though the limit of indemnity had been exhausted by the judgment. That was ordered on the basis of these apparently unremarkable circumstances:
‘(i) the insurers determined that the claim would be fought; (ii) the insurers funded the defence of the claim; (iii) the insurers had effective conduct of the claim; (iv) the insurers fought the claim exclusively to defend their own interests; and (v) the defence failed in its entirety.’
ZG-W v CCW (a firm) (2007) VSC 235 is the latest in the saga of the Legal Practice Board’s practising certificate cancellation of Melbourne’s best known female criminal lawyer. She has succeeded in having the Board’s lawyers enjoined from acting further for the Board on the relatively rare basis that it would bring the administration of justice into disrepute if they were permitted to continue to act. They obtained a transcript of an Australian Crime Commission examiner’s interrogation of the solicitor. The solicitor is charged with giving false evidence in that examination which is one of the reasons why the Board refused to renew her practising certificate. Justice Bell said at :
‘The solicitor at the [Office of Public Prosecutions] refused [CCW’s] request because the plaintiff was contesting the allegations and the presumption of innocence applied to her. If I may say so, this is important advice that everybody should keep firmly in mind.’
Because of the invasive powers of compulsion exercised against the solicitor as examinee, the transcript was not permitted to be used otherwise than for the purposes of the examination, though an exception was made for the purposes of the charge of giving false evidence in the examination. The Legal Practice Board, through its lawyers, procured a copy of the transcript for use in the solicitor’s VCAT challenge to the Board’s refusal to renew her practising certificate. The story involves a baptism of fire for a newly admitted solicitor: Continue reading “Supreme Court enjoins Legal Practice Board’s solicitors from continuing to act”
America’s Legal Profession Blog had posted yesterday on a conflicts case about what we in Australia would call “the getting to know you factors”. The case was Hurley v Hurley, decided on 22 May 2007 by a 5 judge bench of the Maine Supreme Judicial Court. The background is that a lawyer may be prevented from acting against a former client even in a matter unrelated to the earlier retainer and where no specific confidential information was obtained in the earlier retainer which could be put to use against the former client in the new retainer. A lawyer may be prevented from acting in those circumstances where the earlier retainer or retainers was or were of such an intimate character that the lawyer came to know so much about the former client in a general way that it would be unjust to let them loose on a former client’s opponent.
The seminal case is probably Yunghanns v Elfic Ltd, a 3 July 1998 decision of Victoria’s Supreme Court’s Justice Gillard. (The rule does not apply, in general, to barristers acting against institutional litigants such as insurance companies and banks for whom they have acted in the past: Mintel International Group Ltd v Mintel (Australia) Pty Ltd  FCA 1410 at  to ). In the American case, one personal injury retainer, in which the lawyer gained insights into the former client’s ‘ability to testify under oath, her reactions to her adversary, her patience with the protracted process, her ability to accept compromise, her ability to handle stress, and the way in which she relates to her attorney’ was sufficient to disentitle him from acting against her in a contested divorce. Now, that post in full: Continue reading “The US take on past client / current client duty conflicts based on the ‘getting to know you factors’”
In my post “Judge uses big word”, I commented on President Mason’s use of “tergiversation”. Now David Starkoff at Inchoate has noted another’s analysis of the odds of each of the High Court judges other than Justice Kirby being responsible for the appearance of “epexegetical” (which seems to mean “explanatory in a way supplementary to the principal or original explanation”) in a decision on migration. (10/1 odds: Justice Gummow.) Love how the judiciary tends to save up these little diamonds of language for those least likely to have the resources to look them up.
And, by way of update to my post “Finally, some scholarship on Australian lawyers’ conflict of duties”, here is a long article on conflicts of duties in America, “I’m All Verklempt!” by Kendall M. Gray et. al., including a long analysis of the Yanks’ position on Chinese walls. The relationship between establishing a conflict of duties and the entitlement to compensation of one of the people to whom the conflicting duties is owed is a bit complicated in Australia. It certainly does not follow that every breach of fiduciary duty gives rise to a right to money in the victim from the lawyer. But in Texas, there is a principle of fee forfeiture which applies in cases of clear and serious breaches of fiduciary duty, a remedy born in Burrow v. Arce 997 S.W.2d 229 (Tex. 1999). Where an attorney was found to have grossly overcharged, fee forfeiture was imposed so that the attorney lost all his fees rather than just those which exceeded a reasonable fee: In re Allied Physicians Group, P.A., No. 397-31267-BJH-11, Civ. A.3:04-CV-0765-G, 2004 WL 2965001, at *5 (N.D. Tex. Dec. 15, 2004) (unpublished), aff’d, 166 F. App’x 745 (5th Cir. 2006).
Mr Gray’s style cannot be described as stuffy, and exemplifies what is good about Texas, namely plain talking: Continue reading “Updates: big words, Texan legal writing, conflicts of duties”
Herbert Smith, an English firm, have written a little note about Brown v Rice & Patel  EWHC 625 (Ch). The decision does not come to any startling conclusions, but recaps the more recent English decisions on without prejudice privilege, and is accordingly worth noting. There was a dispute about whether a settlement had been arrived at. The Court found that it could have regard to communications at mediation — notwithstanding that they were recognised to be privileged under negotiation, or “without prejudice” privilege at common law — in order to ascertain whether an agreement had been arrived at. None had, the Court found, because the mediation agreement required a signed written document as a condition of the existence of any final settlement, and the mediation agreement had not been amended in that regard. But the Court declined an invitation to recognise a ‘mediation privilege’ which would throw a blanket of privilege over everything said or done at mediation which would admit of fewer exceptions than the common law negotiation privilege. The Court also confirmed the exception to the privilege ‘where one party is intended to and does in fact act following a clear statement made by the other party in the negotiations giving rise to an estoppel.’ The other cases referred to in the note are: Continue reading “New English decision on without prejudice privilege and mediations”
These propositions from Z v New South Wales Crime Commission  HCA 7 may be useful in relation to matters more generally than for understanding the basis of the Court’s decision: Continue reading “Useful propositions from Z v New South Wales Crime Commission”
In Z v NSW Crime Commission  HCA 7, a man came to a lawyer and sought advice about the implications of anonymously passing to police information about a suspected criminal. The solicitor gave advice, and the client authorised the communication of the information to the police. The solicitor passed it on without advising his client’s identity. Years later, after the suspected criminal allegedly attempted to murder someone, the NSW Crime Commission purported to compel the solicitor to advise the client’s identity and how he could be contacted. The High Court said the solicitor must do so, as did every other judge along the way. The ratio of the decision is that any privilege which did exist over the client’s name and contact details was expressly abrogated by a statute about the Crimes Commission. As to whether there was any privilege in the first place, though, two judges held that the client’s identity was privileged, two held that it was not, and one — the Chief Justice — did not express a view. Update: Deacons’s analysis here. Continue reading “High Court on whether client’s identity can be privileged”
I found some useful web resources yesterday. First, Peter Faris QC publishes blogs which do no more than consolidate in one place all the court-provided information (what I think of as the unreported version of a headnote) about the decisions of the High Court, Supreme Court of Victoria, and Victorian Court of Appeal. Each court’s decisions have a separate blog:
They make searching across only the keywords a snap, a feature which Peter told me he uses extensively in his own research, but more importantly from everyone else’s point of view, provides an easy way to be alerted automatically to each new decision of each court (though there is a lag between the courts’ publications of their decisions on the web and Faris cutting and pasting it into his blogs). The blogs have instructions on how to set up the automatic notifications using RSS feeds which sound complicated but which either you or one of your nieces will be able to set up without any difficulty. This is a very simple application of technology providing significant benefits.
From Faris’s High Court Blog, I learnt of a new decision of the High Court on legal professional privilege, Z v New South Wales Crime Commission  HCA 7 (see the next post). Then a Google search on that decision resulted in a new find: the Law Council of Australia’s Client Legal Privilege Watch, which digests new decisions about client legal privilege (also known as legal professional privilege).
Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd  NSWSC 350 is a decision with wonderfully appalling facts. In the rush to agree consent orders before a directions hearing one morning, a megafirm sent a document to the other side which handed proof on a platter of a flagrant breach of a Chinese wall put in place less than 2 years earlier which had been unsuccessfully attacked by the other side at the time. Partners signing letters and court documents in large firms to the exclusion of all others is generally said to be a risk management exercise. In truth, a partner with no idea about a file will often be a worse choice of responsibility taker than a more junior lawyer who does know a lot about the file, as this sorry tale well illustrates. This was one of those moments when the file’s supervising partner was unavailable, and a solicitor cast around for another partner, any partner, to sign a document. One feels for the firm in this situation, between a rock and a hard place: it either says “Yes, the partner signed it but he didn’t really look at the document,” or “He gave it all appropriate attention despite the hurry, and inexplicably failed to notice the obvious fact that it was a document in the case he went to court about and promised to have nothing to do with.” The firm plumped, more or less, for the second alternative. Here, the Chinese wall had supposedly been operational for nearly 2 years between people in one location used to working with each other.
I hazard to guess that this particular megafirm would be keen to avoid further publicity for ethics violations after an unlucky run recently. So the announcement “I inadvertently signed orders on behalf of the new client in the matter which I swore the year before last in that conflict of interest hearing I would and could ensure I would have nothing to do with” would have been met at that week’s partners’ lunch with foul temper if not foul language. Continue reading “Chinese wall crumbles in big litigation and Optus loses its lawyers 2 years in”
In Jane Doe v ABC  VCC 281, the County Court’s Judge Felicity Hampel granted a cool quarter of a million dollars in damages for the tort of invasion of privacy, for breach of the statutory duty in s. 4(1A) of the Judicial Proceedings Reports Act not to publish identifying details about victims of sex offences, and for breach of an equitable duty of confidence the ABC was found to have owed to the complainant in a rape trial it reported on. This is an important decision in the law of confidential information, 22,000 words long and the product of 10 months’ work by her Honour. I cannot confess to having read it carefully yet, but Blakes have helpfully written a little note of it. I wonder whether Alan Jones’s lawyers have read this decision yet. Further, I wonder whether the child witness’s parents have read it. Just for the sake of having links to them on this blog, the other decisions on privacy as a cause of action post-ABC v Lenah Game Meats (2001) 208 CLR 199 (see the MULR commentary here) are: Continue reading “Equitable damages for breach of confidence, tortious invasion of privacy, breach of statutory duty: privacy legislation”
H v Medical Practitioners Board of Victoria  VCAT 526 was a rehearing of a case before the Medical Practitioners Board (the decision of which is here). VCAT, constituted by Vice President Harbison and Associate Professor Davis, reduced the severity of the outcome of an unprofessional conduct prosecution for an intimate relationship with a former patient, which continued after the psychiatrist had paid her $100,000 conditional on her not suing him or lodging a disciplinary complaint. VCAT suspended him for 18 months in lieu of the deregistration imposed on him by the Board, the majority of which had concluded that:
‘Dr [H] is unlikely to engage in unprofessional conduct of the nature of a sexual relationship with a patient or former patient again. … However we note that some of factors in Dr [H’s] personal background that formed the context within which this relationship developed remain unresolved. … on balance, … there is likely to be a benefit to the public in Dr [H] continuing to practise his profession. However, through our knowledge as members of this Board, we are aware that the predictive capacity of bodies such as ours in relation to repetition of sexual misconduct is poor. Therefore it is incumbent upon us to be cautious.’
That conclusion was recounted in VCAT’s judgment as a finding ‘that it was unlikely that Dr Honey would be likely to engage in unprofessional conduct of the nature of a sexual relationship with a patient again [sic.]’.
The Board’s decision is notable for containing a dissenting opinion. Disciplinary tribunals are often constituted by panels of lawyers and non-laywers, but I do not recall ever seeing a legal disciplinary tribunal publish majority and minority reasons. Continue reading “Affair over 6 years and a $100,000 payment earn psychiatrist an 18 month holiday”