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Chinese wall holds up at investment bank

Update, 13 November: Clayton Utz’s take on the case here.

Here’s a long Sydney Morning Herald article about the latest big Chinese wall case, this time not in the context of a law firm, but of Citigroup, an investment bank. Here’s The Age‘s shorter version. The case is ASIC v Citigroup Global Markets Australia Pty Ltd (No. 4) [2007] FCA 963. Here’s a summary by Corrs Chambers Westgarth. Here’s Minter Ellison’s effort. And here’s Allens Arthur Robinsons’ take. The bank’s Chinese wall was declared ok in a 40,000 word long judgment, and his Honour found that Citigroup had successfully contracted out of a fiduciary relationship from the outset, in its retainer letter. But the judge did have this to say about one of the Bank’s key witnesses at [454]ff: Continue reading “Chinese wall holds up at investment bank”

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Supreme Court enjoins Legal Practice Board’s solicitors from continuing to act

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 [20]:

‘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”

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Souped up conduct rules commence in England

The English have promulgated a new set of professional conduct rules for solicitors, which commence tomorrow. Here they are, and here’s a Law Society page with associated resources. I have only scanned them, but they seem to be beautifully written: clear, detailed, without unnecessary complexity, and graced by helpful commentary. Some of them seem sensibly to record stuff that probably doesn’t strictly need to be in rules of this kind, but which it is very sensible to include. As a professional negligence lawyer, I would love it if our solicitors’ rules said this, as clearly as this: Continue reading “Souped up conduct rules commence in England”

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Legal Services Commissioner publishes annual report

The Legal Services Commissioner’s website is growing some content. Her annual report for the part-financial year ending 2006 is published there. In summary:

  • For those who enjoy the suffering of others, commencing at p. 22 there is a list of all the adverse disciplinary findings made by VCAT’s Legal Practice List, and it names the practitioners involved;
  • The Commissioner’s office has 3 executives in addition to Victoria Marles: Janet Cohen (formerly the Deputy Legal Ombudsman), David Forbes, and Diana Gillespie; 9 legal staff 2 of whom are part time; (2 out of the 13 mentioned are blokes) and 19 administrative staff;
  • She received 1,218 complaints under the new Act (6 a day), of which 664 were only disciplinary (55%), 310 were only civil (25%), and 244 were both (20%) (all of the complaints figures below are only about the new Act complaints received, except where indicated);
  • Only 33 were against barristers (3%);
  • 238 involved a costs dispute (20%), a surprisingly low figure, especially given that 553 of the complaints were about costs or bills (45%);
  • Only 117 involved a pecuniary loss dispute (10%) which shows that two-thirds of the 322 complaints characterised as being about “Negligence — including bad case handling and advice” were dealt with as disciplinary complaints or costs disputes which is most surprising;
  • Only 719 were handled by the Commissioner (59%) — the rest were referred to the Law Institute and the Bar for investigation and recommendation as to ultimate decision to be made by the Commissioner;
  • 67% of those delegated to the Law Institute involved a disciplinary complaint;
  • 14% were about wills and estates, 14% about conveyancing, 18% about family law, and only 5% about crime;
  • 6% were about conflicts;
  • There were 3 complaints of sexual impropriety;
  • There were no ‘other genuine dispute’ within the definition civil disputes in s. 4.2.2(2) of the Legal Profession Act, 2004;
  • No prosecutions were brought;
  • Not a single finalised disciplinary complaint was successful (and only 1 out of the 100 old Act complaints succeeded — it resulted in a reprimand);
  • There were 3 FOI applications to the Commissioner; and
  • The going tariff for a breach of the obligation to deliver up documents within time pursuant to the Commissioner’s power of compulsion seems to be a $500 fine and costs of $1,000.

The Office had revenue of $3.4 million (almost all from the Legal Services Board) of which $1.3 million went on staff, including training (an annualised average of $73,300 per employee, some of whom are part-time, but it gets a little complicated because the Commissioner spent $205,000 on temps), $1.1 million went to the Law Institute for functions the Commissioner delegated to it (there is a list of all delegations on p. 20) and $150,000 to the Bar for the same thing.

Astonishingly, 89% of all disciplinary complaints finalised were summarily dismissed pursuant to s. 4.2.10 of the Legal Profession Act, 2004. Almost 1 in 6 was chucked within 30 days, and almost 9 in 10 within 60. To be fair, this may represent the dross which has been sifted out, since 60% of the complaints received during the reporting period were still open at the end of the financial year, and 60% of them had been open for 2 months or longer. I say ‘astonishingly’ because I perceive it to be a radical departure from the practice of the Commissioner’s predecessors. In general, though, it is a good thing if the Commissioner uses her office’s limited resources to deal doughtily with the complaints which suggest conduct conducive of condine condemnation, while giving the drossmongers and feewhiners the short shrift they often deserve.

I saw the other day a set of circumstances which was unfortunate, and which I hope is not too often replicated. The Commissioner characterised a complaint as a pecuniary loss dispute (one of the species of civil dispute) and a conduct complaint. The particulars of the complaint read, in substance — “See the attached Family Court affidavit”. Rather hastily after the receipt of the complaint, the Commissioner exercised her discretion to bypass the dispute resolution procedures with which she is tasked in relation to civil disputes by giving the client a ticket to go off and agitate her professional negligence claim in VCAT. She referred to s. 4.3.6 of the Legal Profession Act, 2004 which says she can do so if she considers the dispute unsuitable for her to attempt to settle. The matter was referred to VCAT’s Legal Practice List. Then, the Commissioner realised that because the exact subject matter of the complaint was before the Family Court she had no power to deal with the complaint, which she dismissed pursuant to the power in s. 4.2.10(1)(e) of the Legal Profession Act, 2004, which says ‘The Commissioner may dismiss a complaint if— (e) the complaint is not one that the Commissioner has power to deal with’. Yet she did not withdraw the ticket she had mistakenly given to the c lient to refer the purported complaint to VCAT insofar as it amounted to a civil dispute in the belief that she did have power to deal with the complaint.

The Commissioner settled 10% of civil disputes. She let 5% through to VCAT’s pecuniary loss dispute jurisdiction, which would explain why it’s been quiet down in the Legal Practice List. That means 85% never went anywhere for various reasons. She summarily dismissed 53%. She refused to extend time 18 times.

Of the complaints summarily dismissed, 41% were dismissed for being frivolous, vexatious, misconceived or lacking in substance. 9% were dismissed because the Commissioner formed the view the complaint required no further investigation. One-third were dismissed on the basis the Commissioner did not have jurisdiction.

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The regulator’s regulator, the Ombudsman, criticises Migration Agents’ bureau de spank

The Ombudsman has been looking into the performance of a regulator, MARA, the Migration Agents Registration Authority. He was critical. His press release is here, the full report here. Reproduced below are the bits about impartiality and the avoidance of conflicts of duties ‘in the case where an industry representative body is also the regulatory body and complaint-handling organisation’.  Though the Legal Services Commissioner does not fall into that category, the Uber-regulator’s review of a professional regulator may nevertheless be of interest to those who deal with her.  The Ombudsman suggested that oral complaints be taken, reduced to writing by regulator staff, and confirmed by sending out the writing to the complainant.  I think that would be an efficient way of dealing with complaints against lawyers by unsophisticated clients.  It would be a case of a stitch in time saves nine, and would prevent lawyers from having to respond to allegations which are incomprehensible and legally embarrassing. The Legal Services Commissioner ‘may’ provide assistance to members of the public in making complaints: s. 4.2.12(c) Legal Profession Act, 2004. Under s. 123(5) of the Legal Practice Act, 1996, the Law Institute’s Professional Standards were obliged to assist if asked, but to my knowledge they rarely did so, and I am aware of instances where assistance was formally sought but refused. Now, that extract from the report I mentioned: Continue reading “The regulator’s regulator, the Ombudsman, criticises Migration Agents’ bureau de spank”

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The US take on past client / current client duty conflicts based on the ‘getting to know you factors’

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 [2000] FCA 1410 at [43] to [44]). 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’”

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Contracting out the dirty work

Via Freivogel on Conflicts: The New York County Lawyers’ Association has published an ethics opinion on the propriety of hiring investigators to communicate with counterparties in ways which would be unethical for the lawyer hiring them. Prima facie improper with only very limited exceptions, they say. Unless what is contemplated is pre-litigation, it seems to me that an unaddressed question is the operation of what the Americans call “the rule against communicating with a represented opponent” (rule 4.2 in the quote below). On that topic, Freivogel cites this case:

Use of lying investigator with hidden recording device to interview adversary’s employees causes violation of Rules 4.2 and 8.4(c) and exclusion of evidence. Midwest Motor Sports d/b/a Elliott Power Sports, Inc. v. Arctic Cat Sales, Inc., 347 F.3d 693 (8th Cir. 2003). Continue reading “Contracting out the dirty work”

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Updates: big words, Texan legal writing, conflicts of duties

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”

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The American version of the Briginshaw standard of proof

In a stinging dissent against the conclusion of a majority of the Supreme Court of Washington that a lawyer had breached a conflict of duties rule in representing multiple parties, one judge set out what sounds a lot like the US version of the Briginshaw standard of proof which prevails in Australian and English disciplinary hearings, at least in relation to serious allegations of wrongdoing. The case is In re Discipline of Marshall. Hat tip to Legal Profession Blog for bringing the case to my attention. The majority judgment is here. The dissenting opinion is here. It said: Continue reading “The American version of the Briginshaw standard of proof”

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Public reprimand for intemperate written submissions

A Delaware attorney has been publicly reprimanded for intemperate written submissions. The judgment goes through the American superior court law on where the boundary between zealous advocacy and impermissibly intemperate attack lies. Great minds differed; the Supreme Court overturned a decision of the Board of Professional Responsibility which found that the language did not warrant discipline. The impugned words were: Continue reading “Public reprimand for intemperate written submissions”

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Kansas Supreme Court on the rule against direct communication with opponent’s clients

The Supreme Court of Kansas yesterday published a judgment — In the Matter of E. Thomas Pyle, III — which is interesting on a number of fronts. The first is that Pyle was disciplined for writing a letter which criticised an adverse disciplinary ruling against him. The second is that he was disciplined for failing to complain about an opposing lawyer having formed the view that the opposing lawyer had engaged in misconduct (but when he did belatedly complain, the complaint was apparently not made out). Victoria has just such a dob-in rule, but I have never before heard of any lawyer being disciplined for failing to report a colleague to disciplinarians. The third is that the lawyer was originally disciplined for breaching the rule against direct contact with his opponent’s client by facilitating his own client’s direct contact with the other side, a concept I have difficulties with. And the fourth is a cracker. Pyle was found to be a “Clintonesque” witness. Continue reading “Kansas Supreme Court on the rule against direct communication with opponent’s clients”

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New English decision on without prejudice privilege and mediations

Herbert Smith, an English firm, have written a little note about Brown v Rice & Patel [2007] 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”

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High Court on whether client’s identity can be privileged

In Z v NSW Crime Commission [2007] 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”

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Free notifications of new High Court and Vic Supreme Court cases; client legal privilege watch

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:

High Court blog

Victorian Court of Appeal blog

Supreme Court of Victoria 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 [2007] 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).

 

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Chinese wall crumbles in big litigation and Optus loses its lawyers 2 years in

Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2007] 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”

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Equitable damages for breach of confidence, tortious invasion of privacy, breach of statutory duty: privacy legislation

In Jane Doe v ABC [2007] 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”

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Misconduct charge no. 21 against Victorian silk stayed as abuse of process

The latest and possibly last chapter in the tribulations of Victoria’s most senior female silk is to be found in M v VCAT [2007] VSC 89, a decision of Justice Mandie. The barrister was charged on 4 July 2005 with 24 charges of misconduct, and ended up after a hearing of the first half of the charges with a finding of only 4 counts of unsatisfactory conduct. All but one of the second half were abandoned, but the Bar, as prosecutor, sought to amend the last remaining charge so as to substitute an allegation of unsatisfactory conduct for the original charge of misconduct. VCAT found it had no power to grant leave to amend a charge, and the barrister convinced the Supreme Court to stay the hearing of the last charge as an abuse of process, VCAT having refused to do so. It was an abuse because the Bar wished to proceed with the misconduct charge not so as to make out an allegation of misconduct, but so as to provide a vehicle for a finding of unsatisfactory conduct under a statutory power which empowered VCAT to make a finding of unsatisfactory conduct after hearing a misconduct charge. Justice Mandie found:

‘[58] … It would bring the administration of justice into disrepute to permit the Bar to prosecute a charge of misconduct while at the same time saying the opposite, namely, that it was not advancing a case of misconduct or seeking a finding of misconduct. It is an entirely different position to that which might have arisen had the charge been proceeded with and, after all the evidence was in, the Bar conceded that the evidence supported only a lesser charge [i.e. unsatisfactory conduct]. The use of a misconduct charge simply to obtain a finding of a lesser charge when the case for misconduct is completely disavowed before the hearing commences is, I think, a misuse of the statutory procedure and, indeed, as the plaintiff submitted, contrary to the spirit of the Act, given the requirement that the Bar be satisfied when bringing the charge that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of misconduct. If the Bar has reached the view, as it has, that a case of misconduct cannot be made out and it does not seek to do so, such a charge ought not as a matter of justice and fairness be heard.’ Continue reading “Misconduct charge no. 21 against Victorian silk stayed as abuse of process”

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Affair over 6 years and a $100,000 payment earn psychiatrist an 18 month holiday

H v Medical Practitioners Board of Victoria [2007] 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”

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E-discovery default leads to verdict for $US billions

Legal Blog Watch also has a couple of posts (here and here) about a fraud case going through the American courts which resulted in a Rolah McCabe-like outcome, with a judge instructing a jury to assume that the defendant, Morgan Stanley had “engaged in massive fraud”. The West Palm Beach judge’s reasons are here. The judge’s instructions resulted from inadequate discovery of emails, which was itself said to be evidence of a consciousness of wrongdoing so as to support the inference giving rise to the jury direction. The result was a jury verdict for $1.57 billion, recently overturned for reasons unconnected with the e-discovery default. More detail here, in a long article about the stockbroking firm which blamed the destruction of its World Trade Centre offices on September 11 one too many times. And Overlawyered’s take is here.