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.

More on the Home Office v Harman implied undertaking in relation to litigation documents

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 [2007] 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.

Julian Burnside, his book and his take on the Peter Faris affair

Julian Burnside QC is one of 4 Victorians whom I know to have had Wikipedia entries as barristers. The others are Mark Dreyfus QC, Lex Lasry QC, and Peter Faris QC. (Are there any others?) Julian Burnside has become a writer, Mark Dreyfus a federal politician, and Lex Lasry a judge of the Supreme Court. All but Peter Faris were in Latham Chambers with me.

Now Julian Burnside has written a new book, Watching Brief. Here’s an extract published in The Age. I almost bought it in the bookshop today, but then I thought of all the other books I have to read, and I’d just bought The Legal Mystique (1982, Angus & Robertson) by Michael Sexton and Laurence Maher (‘drugs’ is not an entry in the index) to add to my collection of books about the legal profession. The collection’s coming along nicely since yet another legend of Latham Chambers, Jeff Sher, gave me a little manila-covered book by W.W. Boulton, B.A., Secretary to the General Council of the [English] Bar, published by Butterworths in London in 1971: Conduct and Ettiquette at the Bar. And a friend of mine has promised to permanently lend me Gifford’s Legal Profession; Law and Practice in Victoria. I figured I’d probably buy and read Andrew Fraser’s memoirs before Julian’s latest. But I might change my mind about that, because I imagine Fraser’s is the more interesting, but Burnside’s the better written. In fact, I suspect the writing in Burnside’s is to die for.

Because of the book, he’s on the media circuit. Here’s his interview with Monica Attard. His reference to a ‘marijuana cigarette’ brings to mind by far the most interesting contribution to the Peter Faris debate, which was the Law Institute’s President’s quip to the press that most barristers wouldn’t even know what cocaine is. But Monica, I’m not at all sure that the Bar is investigating whether Mr Faris is a fit and proper person to be a barrister; where did you get that from? Continue reading “Julian Burnside, his book and his take on the Peter Faris affair”

Danger lurks in settling a disciplinary complaint against a lawyer

A man hired a firm. Then he hired a new solicitor. He had not paid the fees of counsel retained by the first firm, for which the first firm was responsible for paying to the barrister. The first firm handed over its files to the new solicitor upon receiving an undertaking from the second solicitor that he would pay the counsel’s fees. The new solicitor failed to do so. So the first firm (i) sued him in a court for what amounted to specific performance of the undertaking, and (ii) complained about the failure to meet the undertaking to the NSW Law Society (this was back in 2001). Nine months later, the Society charged the new solicitor with professional misconduct.

The hearing of the court case was listed for 17 January 2002. The new solicitor who was the respondent to the disciplinary charge hired a barrister to represent him at the trial of the civil court case. Through that barrister, the new solicitor negotiated a settlement with the first firm a day or two before the trial. The terms of that settlement got the barrister who negotiated it into trouble: in Council of the New South Wales Bar Association v DKLR [2007] NSWADT 201, NSW’s equivalent of VCAT’s Legal Practice List held the barrister guilty of unsatisfactory professional conduct. The settlement purported to settle not only the civil action, but also to dispose at the same time of the complaint. Continue reading “Danger lurks in settling a disciplinary complaint against a lawyer”

Peter Faris’s comments about drugs and the Bar

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?’ [2003] 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”

Barristers and the media

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”

A non-exhaustive bibliography on lawyers’ conflicts of duties between insurer and insured

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”

3rd International Legal Ethics Conference: Gold Coast

The Third International Legal Ethics Conference is to be held between 13 and 16 July 2008 on the Gold Coast. It costs $500 or $220 a day. Queensland’s Chief Justice de Jersey, who has written at least a few disciplinary decisions which I happen to have stumbled across, is a keynote speaker, along with Professor David Luban of Georgetown University, who is a contributor to American legal ethics blogs like Balkinization, and Professor Deborah Rhode of Stanford University. There is an impressive array of other speakers, and they are calling for proposals for papers by the end of February.

In googling for this post, I noticed that you can buy online .pdf versions of articles in the Georgetown Journal of Legal Ethics separately for US$3.50 a pop.

2nd edition of Professional Liability in Australia reviewed

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.

Continue reading “2nd edition of Professional Liability in Australia reviewed”

Firm publishes big book free online

I’m just going to cut and paste this article from Legal Blog Watch, and hope that its author Caroline Elefant won’t mind. I have little to say on the topic which is not already pithily set out by her, but will draw your attention to one section of the book in particular, the bit on Cross Border Legal Ethics.

I’m sure we’ll see this sort of thing in Australia. It will start by smart firms bundling up all their newsletters into one booklet on a topic, distributing it in hard copy and then making it available online too. That will happen when people realise the design possibilities of publishing in .pdf format. I write this blog in large part because having to explain a case in simple language makes me remember it much better than if I just read it. I think benefits will come to firms who encourage their solicitors to write for publication, despite what marketing folk might say. It is necessary to consider the benefit to the knowledge base of the lawyers who write, as well as the direct marketing potential of the publication. Here it is:

Law Firm Puts Treatise Online

Bruce MacEwen shares this news about a comprehensive, online book introduced by Proskauer Rose and entitled “International Litigation and Arbitration: Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes.” The book, prepared by 50 Proskauer lawyers, provides 28 chapters of readily accessible and detailed information on international litigation. Continue reading “Firm publishes big book free online”

25 handy hints on affidavits in Victoria

I presented a seminar with Glenn McGowan SC on affidavits and written evidence recently. I wrote a long paper, mainly about the state courts, but incorporating some aspects of Federal Court procedure, which I will send to anyone who asks for a copy, and which will probably end up on the blog replete with useful hyperlinks one day. Meanwhile, here are some handy hints on affidavits which are not always properly understood:

  • a deponent who makes an affidavit in a work capacity can state their business address instead of their residential address, but the condition of doing so is that they state the name of their firm or employer, if any, and the position they hold: Supreme Court Rule 43.01(3);
  • in the Supreme Court, you can call for an electronic copy of an affidavit to be emailed to you if served with a hard copy, by invoking Practice Note No. 1 of 2002, (2002) VR 107;
  • you can call for any document referred to in an affidavit by a notice to produce under Supreme Court Rule 29.10(2), and the rule is interpreted to mean that you can call for production of any document referred to in an exhibit to an affidavit: Williams [I 29.01.345] citing Re Hinchcliffe [1895] 1 Ch 117; Continue reading “25 handy hints on affidavits in Victoria”

Home Office v Harman: some law about its application to VCAT

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 [2007] 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”

The obligation not to use documents obtained under compulsion except for the purpose compelled

Update, 21 August 2007: Latest case on the implied undertaking:  Street v Hearne [2007] 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 [1983] 1 AC 280.

The latest decision in the saga of Australia’s best-known female criminal lawyer, ZGW v Legal Services Board [2007] 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”

Solicitors’ liability paper; conflicts of lawyers acting for insurer and insured

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.’

Freshfields partner gets whacked $140,000 over conflict of duties to concurrent clients

Freshfields used to be Marks & Spencer’s go-to lawyers. Then they fell out of favour a bit. But they were still acting for Marks ‘n’ Sparks on one relatively small contract. A key partner then decided to accept instructions to act for a consortium trying to take over the supermarket chain. If the takeover went hostile, that one contract was likely to be contentious. There was a potential conflict of duties, the Court found in Marks and Spencer Group Plc v Freshfields Bruckhaus Deringer [2004] EWCA Civ 741, and restrained the firm from acting. Three years later, the wheels of justice have ground on, and the disciplinary sequelae of the injunction application have come to a head. Barry O’Brien copped a £5,000 fine from the Solicitors Disciplinary Tribunal, and a £4,000 fine for bringing the profession into disrepute. He pleaded, and ‘volunteered’ to pay prosecution costs of £50,000 which suggests that he had a good long think before pleading. Continue reading “Freshfields partner gets whacked $140,000 over conflict of duties to concurrent clients”

Arbitrators slice $40 million off plaintiff lawyers’ breast implant proceedings fees

22 July Update: what may be the first ever legal blog, and without doubt one of the best, Overlawyered has  a link to the arbitrator’s ruling, and links to some old posts dealing with the interlocutory stages of the case. And here’s’s article.

Houston plaintiff lawyer John O’Quinn has been ordered to repay clients $40 million in legal fees after he was found to have charged his clients for bar association fees, overheads, and flowers as part of a ‘general expenses fee’ of 1.5% of the settlement. Ironically, his former clients ganged up on him. In a class action. They wanted all the fees he charged them back — estimated at $0.66 billion:

‘A Texas Supreme Court case from 1999 opened O’Quinn up to the possibility of having to pay back all the collected legal fees. That case, Burrow v. Arce, held that if a lawyer breaks his fiduciary duty to a client by putting his own interest above the client’s, he can lose part or all of his fee — even if the lawyer did a good job.’

I’ve noted that case before. Scary. Not that he got away without penalty, exactly:

‘The order says that O’Quinn, through three legal entities under which he has practiced law, must pay back [AU$12] million he improperly charged clients and a [AU$28.5] million penalty because he broke his contract with them.

The incapacitated client


Here’s an interesting case about lawyers, incapacitated clients, paternalism, and the right to be represented. An Alzheimers affected woman hired a beak to oppose a guardianship application brought by her brother. The court appointed another lawyer to act for her, suspecting that the man she professed to want to marry had in fact been behind the first hiring. The Court-appointed lawyer successfully applied to remove her own lawyer for a conflict of duties owed to her and to the man. An appeal court in the US capital reversed the decision, saying that free will cannot be countermanded on the basis of a hunch as to competence. Sounds like an important principle to me, else some mandarin in the Federal Government might decide that a doctor was not only an illegal alien of thoroughly rotten character but incompetent to boot and appoint a nice government lawyer resident in Nauru to act for him. The NSW Law Society has published a set of Client Capacity Guidelines for Civil and Family Law matters. The diagram featured is from it.

I acted for a solicitor sued by a former client. She said her medication affected her so at the mediation that the lawyer should pay her the difference between the millions she should have got and the paltry amount she considered she did get. I know, it didn’t make sense to me either. Anyway, during the professional negligence case, the lady seemed to flicker in and out of competence depending on whether an adjournment was needed. Continue reading “The incapacitated client”