Legal Blog Watch draws our attention to a CNN report of a Wisconsin lawyer who is said to have gone too far in defending a middle-aged man against allegations of sexual assault and child pornography involving a boy. Neither article states the facts adequately, so see this article too. It was alleged that the accused showed the 13 year old pornography on the accused’s computer. The lawyer wanted the boy’s computer, suspecting it would contain useful undiscovered material demonstrating that what was on the accused’s computer was nothing new to the boy. So he sent a private investigator over to the boy’s house with a story that his household had been selected for a free laptop in exchange for his old computer. There was a cover story about a company researching school students’ computer use. It worked. The boy’s family handed over the old computer, including hundreds of pornographic images which the lawyer then sought to tender in his client’s criminal trial, and the boy got a new laptop. The Wisconsin Supreme Court wil now decide whether the lawyer’s deception through the proxy of the investigator was one step too far in the vigorous and fearless defence of his client.
Auditors’ liability: what to do with information from a whistleblower
The Corporations Act contains whistleblowers provisions. Section 9.4AAA which commenced on 1 July 2004 provides extensive protections to officers, employees, and contractors of companies who report to auditors, non-anonymously and in good faith, matters which they reasonably believe suggests that a company or an employee may have breached the Corporations Act or the ASIC Act. Importantly, the only people to whom the whistleblower’s information may be passed by the auditor without the whistleblower’s consent are ASIC, APRA, or the Australian Federal Police. The company being audited may not be informed without the whistleblower’s consent. This is a kind of Australian version of America’s Sarbanes-Oxley Act which contains similar provisions. ASIC’s information sheet is here.
Man pays lawyer’s costs in hopeless VCAT Legal Practice List case
The Legal Services Commissioner is considerably better than were the Law Institute’s Professional Standards or the Legal Ombudsman at declining to give the time of day to self-evidently unmeritorious complaints against solicitors. Mind you, she has better discretions allowing her to do so under the Legal Profession Act, 2004. I don’t know what path George Anderson’s Case [2007] VCAT 383 took to get to VCAT, but it sounds like it really should not have been allowed to travel so far along the dispute resolution process. Once in VCAT, it was given short shrift and dismissed with an order that Mr Anderson pay the sued solicitor’s costs. What caught my eye, though, was the recital in the reasons without adverse comment of an eminent counsel’s drafting of a notice of appeal to the High Court and its provision to Mr Anderson under cover of a refusal to sign it. That brings to mind my earlier post on unbundled legal services and recent American treatment of the issue in case law. The practice has recently been the subject of criticism after thorough review of the American authorities in Delso v. Trustees for Plan of Merck & Co., Inc., 2007 U.S. Dist. LEXIS 16643 (D.N.J. March 5, 2007). Legal Profession Blog’s take is here, and Freivogel on Conflicts Blog abstracts the case like this: Continue reading “Man pays lawyer’s costs in hopeless VCAT Legal Practice List case”
No absolute bar in England to representing and opposing same client in two different matters
Goubran shares my view that a solicitor can act for and against the one man at the same time. Just not in relation to the same thing. In fact, there is a degree of relation which makes it impermissible, and Goubran sets out the practically meaningless judicial utterances on the test for the requisite degree of relation. He does so by tackling the following passage from Bolkiah v KPMG [1999] 2 AC 222, 234 (Lord Millett) which I have always thought to be overarching: Continue reading “No absolute bar in England to representing and opposing same client in two different matters”
Role of professional conduct rules in conflict of duties injunctions
On the relationship of the conduct rules to injunctions to restrain lawyers acting in the face of a conflict of duties, Goubran cites some useful authorities. I have always been astonished by what I thought was the Australian courts’ universal and complete disregard in these kinds of applications to the professional conduct rules’ conflicts provisions. All the moreso since the introduction of the rule dealing with current-client and past-client confidential information conflicts was introduced into the Law Institute’s rules of conduct for solicitors. But Goubran’s diligence has turned up the following judicial comments on the use to be made of the rules: Continue reading “Role of professional conduct rules in conflict of duties injunctions”
Finally, some scholarship on Australian lawyers’ conflicts of duties
Finally, someone has gone a long way towards synthesising the law relating to injunctions to restrain lawyers from acting in the face of a conflict of duties. The Melbourne University Law Review article is “Conflicts of Duty: the Perennial Lawyers’ Tale — A comparative Study of the Law in England and Australia”, [2006] MULR 4. Sandro Goubran has done an extraordinary amount of reading and has distilled things well. The last such effort was Matt Connock’s ‘Restraining Lawyers from Acting in the Face of a Conflict: Discussion and Advice in Australia’ (1995) 12 Australian Bar Review 244. (There is a whole blog devoted to the subject in America.)
As an index to pin-point citations in relation to the various issues which arise, the work will be of immense practical value to counsel who have to argue these relatively common applications. I wonder whether Goubran thinks, having read all the cases, it was rewarding academically. I have also read most of them, and the abiding impression I have is that — certain judges aside — this area of the law is one in which judges making it up as they go along is more than usually rife. Further, no one reads and considers the same 10 of the 100 or so generally single judge decisions swimming around out there on the question before deciding these cases. The lines of authority are fractured. Goubran’s article might do something to remedy this, but that all depends on how many people read the MULR I suppose.
Goubran is with me in being mystified by the sometimes hysterical reaction adverse to Justice Brooking’s judgment in Spincode v Look Software (2001) 4 VR 501, and astute to point out that the duty of loyalty is only ever considered in the context of the taking up of the cudgels against a former client in the same or a closely related matter.
I have selected two matters raised by him in the two successive posts for special comment.
Labour law firm confirms $1 million bonus to partner on class action win
A leading Melbourne labour law firm has confirmed paying its best known partner a $1 million bonus for procuring a settlement of the Dow Corning breast implants class action. Nothing wrong with that, by the way; I mention it only for prurient interest and to provide some context to the work the firm does pushing back the frontiers of injustice. A former partner’s suit making sensational allegations against the partnership was settled soon after details of those allegations were released by The Australian. But the former partner has now unconditionally withdrawn the allegations, apologised, and discontinued the proceedings. The firm has, however, confirmed that its head honcho received the $1 million bonus for procuring a $32 million settlement from Dow Corning, the company bankrupted by class actions around the world — many of the statements of claim containing the same typos, according to Walter Olson — involving what is now thought to be very questionable science indeed. (Something Andrew Bolt has cottoned onto — but note the egregious error in his article which claims that fees in no-win no-fee litigation in Australia may be “up to a quarter of any payout”. That is quite wrong. A success fee may be no more than 125% of the fees usually charged by the firm. What Bolt is describing is a US-style contingency fee which is stringently forbidden in Victoria.)
Megafirm under scrutiny in defence procurement probe
Update, 20 January 2009: Latest Age article here. The full-pay sick leave, which has risen to ‘up to $430,000’, has come to an end, as has the relationship between the lawyer and the Department of Defence. But no resolution on the issues of interest to this blog.
Update, 25 August 2008: The Age article here. The Department has paid the lawyer $360,000 in sick pay.
Update, 20 July 2008: Canberra Times article here. The Department of Defence has admitted breaching its own procedures when, through the agency of the solicitor, who’s still on sickleave, it awarded lucrative contracts to firms with which the lawyer had past associations.
Update: 31 May 2007: latest Age article here. She’s still on paid sick leave.
Update: 14 July 2007: latest Age article here.
Update: 10 April 2007: latest Age article here.
Original post: A Department of Defence lawyer — legal counsel to the Defence Materiel Organsiation which has an annual expenditure of $9 billion — is on extended sick leave after scrutiny focused on her contracts with a megafirm where she is believed to have worked in a past life. The firm had $3.5 million of the Department of Defence / DMO work in 2005 and 2006 “without competition” according to The Age, up from $20,000 in 2004, the year of her October appointment as DMO general counsel.
Her bit of the DMO awarded $860,000 worth of contracts to another firm in the US — Shaw Pittman — without tender despite an adverse auditor-general’s inquiry into the earlier tender process for advice on the Federal Government’s privatisation of IT services won by Shaw Pittman despite its price being almost half as much again as its closest competitor. According to The Age, that cost the taxpayer no less than $16 million. The whole affair is summarised here (from p. 36 onwards).
The woman’s role was “reallocated” in September last year so as no longer to include “management of legal, procurement and financial investigation services”.
A good summation of Microsoft Word metadata issues for lawyers
I have been involved in teams of litigators on the biggest cases around with dedicated IT people fixing everything IT related, and consider myself to be relatively well aware of the perils of electronic documents. But some metadata slipped out with a document not so long ago, a comment which I could not see in the Word view mode I was in before I emailed it. It probably went unnoticed by my opponent, but a footer in a word document resulted in BHP — one of Australia’s then biggest companies — paying hundreds of millions of dollars to settle the Ok Tedi litigation after being convicted of contempt of court (see below for Julian Burnside‘s account of it). (The conviction was later set aside, but, alas, too late.) Here is a useful article from the American Bar Assocation which summarises the perils of not expunging the metadata generated by use of Word’s track changes feature of draft documents, with lots of links to technical help on the issue. And here is an article from www.discoveryresources.org linked to from that article which explores the issues well too. But now, back to the Ok Tedi Case, probably the best metadata horror story out there, but, I think little known outside Melbourne legal circles: Continue reading “A good summation of Microsoft Word metadata issues for lawyers”
VCAT’s jurisdiction over post-proceedings Family Law fees
Senior Member Howell determined today in M v JC Lawyers [2007] VCAT 273 that VCAT had jurisdiction to entertain a costs dispute about solicitor-client fees of post-proceedings negotiations under the threat of mutual applications to reopen under the change of circumstances provisions the final orders of the Family Court made 9 years previously. Continue reading “VCAT’s jurisdiction over post-proceedings Family Law fees”
Man sues lawyer for declaration in reverse suit for fees
A client sued his former solicitor in VCAT for a declaration that no fees were owing because of costs disclosure defaults by the solicitor. Member Butcher stayed the proceeding pending taxation by the Supreme Court’s Taxing Master on the basis that the sending of a cost disclosure statement at the same time as the work done — in this case a letter of advice — was a default under the Act with the result that the fees were not payable until taxed by the Supreme Court at the solicitor’s expense. He also found that in those circumstances, no costs agreement had come into existence; the offer was made after the performance of the solicitor’s obligations under it. Continue reading “Man sues lawyer for declaration in reverse suit for fees”
Solicitor-executor’s work not legal work
Patterson v S [1998] VLPT 11 is a decision of the Legal Profession Tribunal dealing with a sole practitioner who was the executor of a priest’s will. It held that executors’ work carried out by an executor who happens to be a solicitor is not legal work, and so fees for the work were not within a clause in the will entitling professional executors to charge their “usual or reasonable charges”. Continue reading “Solicitor-executor’s work not legal work”
Texas Supreme Court strikes down contingency fee agreement provision
In Hoover Slovacek LLP v. Walton, Supreme Court of Texas, 3 November 2006, the Court severed a provision in a contingency fee agreement which entitled the lawyer to three-tenths of the “present value of the claim” forthwith upon termination by the client, whether for just cause or not. Instead, the lawyer recovered three-tenths of the actual recovery, and only once there had been a recovery. Continue reading “Texas Supreme Court strikes down contingency fee agreement provision”
New Law Institute of Victoria CEO: Michael Brett Young
The 55 year old Melbourne Grammar boy Michael Brett Young is a former Maurice Blackburn Cashman mandarin, just like his predecessor, John Cain, son of Premier Cain, who opened up the spot by taking up the plum post of Victorian Government Solicitor. His two sons are studying law.
English Bar fights for last vestige of self-regulation
Geoffrey Vos QC, the new Chairman of the English Bar Council gave his inaugural address on 11 December 2006, lamenting the imminent demise under the Legal Services Bill, of the last vestiges of self-regulation in England, a hoped-for statutory entitlement in the independent regulator in its discretion to delegate matters back to the traditional disciplinary bodies like the Bar Council for investigation. The Legal Profession Act, 2004 (Vic.) contains just such a power, described as a right to “refer” investigations to the Law Institute of Victoria, or the Victorian Bar Ethics Committee, and Victoria Marles, the Legal Services Commissioner, has been availing herself the discretion with gusto. The history of the demise of self-regulation in England is well told here by Mark Davies. The Clementi Report had a lot to do with it. Vos’s speech included the following: Continue reading “English Bar fights for last vestige of self-regulation”
Chief Legal Counsel at BHP-Billiton cans firms’ conflicts awareness
Lawyers Weekly‘s 2 February 2007 edition reported the following comments from John Fast, Chief Legal Counsel of BHP-Billiton:
‘“The area where I think the biggest difficulties arise is in … conflicts, and that is an area where increasingly firms that do not have a very clear conflicts of interest policy are at a disadvantage, and will lose business,” he said. Continue reading “Chief Legal Counsel at BHP-Billiton cans firms’ conflicts awareness”
The standard of proof in unqualified practice cases
In Orrong Strategies Pty Ltd v Village Roadshow Limited [2007] VSC 1, Habersberger J considered the burden of proof required in a civil case in which contravention of s. 314 of the Legal Practice Act, 1996 (Vic.) was alleged. That was a criminal provision, providing for imprisonment for up to 2 years, and to breach it also amounted to a contempt of the Supreme Court of Victoria (s. 314(5)). It is a case in which one of Village Roadshow’s top managers sued Village Roadshow for remuneration allegedly owing to his consulting company, Orrong Strategies, and Village Roadshow unsuccessfully tried to invalidate the retainers for illegality in breaching the prohibition on unqualified practice. His Honour found:
‘821 It is clear that a contempt must be proved beyond reasonable doubt[121], but that is not this case. As [Village Roadshow] submitted, this is a civil proceeding in which [Village Roadshow] is seeking to resist Orrong’s monetary claims and to obtain repayment of monies by, in part, asserting that there has been a breach of s.314 of the [Legal Practice Act]. In relation to the Legal Practice Act claims [Village Roadshow] is not seeking imprisonment and/or the imposition of a fine. It is not even seeking a penalty or any order tantamount to disqualification from acting as a solicitor. Therefore, in my opinion, the applicable standard of proof in this part of the case is on the balance of probabilities but, as with the allegations of breaches of the corporations legislation or other serious misconduct, findings of contravention of the [Legal Practice Act] should not be made lightly, bearing in mind what the High Court said in Briginshaw as explained by Neat Holdings.’[122]
The law is specially jealous when it comes to will making
Here’s an interesting report on a little American case which is illustrative of the special jealousy with which the law reserves to lawyers the making of wills, together with some interesting broader commentary on the whole question of the reservation of “legal work” to lawyers. An insurance salesman engaged in unqualified practice by helping a 91 year old make a will naming him executor, using will making software, but the illegality of his conduct did not invalidate the will as the disappointed beneficiaries had hoped. Continue reading “The law is specially jealous when it comes to will making”
Unpaid fees deny prof neg plaintiffs inspection of discovered file
Hammerstone Pty Ltd v Lewis [1994] 2 Qd R 267 BC9303056 is a useful case for solicitors sued for negligence. I advised a client to rely on it the other day, and he did, successfully, in the Magistrates’ Court at Melbourne. He acted for a woman who failed to pay his bill. He sued, and was met with a set-off defence alleging professional negligence. He discovered his file but objected to inspection on the basis of the solicitor’s lien. That entitles a solicitor to keep clients’ property (including that part of a solicitor’s file that the client owns as a matter of law) as security for payment of outstanding fees. The Magistrate ordered the woman to pay a large proportion of the unpaid bill into court as a condition of inspecting my client’s file. This post is a little note on the case, which won the Magistrate over. Continue reading “Unpaid fees deny prof neg plaintiffs inspection of discovered file”
Case specific blogs start appearing
Update: 22 December 2007
Legal Blog Watch’s Carolyn Elefant predicts:
‘2008 will be a banner year for single-issue blogging, like David Rossmiller’s coverage of “everything Richard Scruggs,” Above the Law’s coverage of Aaron Charney’s lawsuit against Sullivan & Cromwell or Durham in Wonderland, covering the Duke lacrosse team rape case.’
Dickie Scruggs, an American lawyer, and others pleaded not guilty to criminal charges that they schemed to bribe a judge handling $26.5 million in legal fees related to Hurricane Katrina claims. Aaron Charney settled his sexuality discrimination case against Sullivan & Cromwell. Mike Nifong was disbarred over his over-zealous prosecution of a rape complaint against a team of Duke University lacrosse players.
Check out, too, this analysis of the project of a blogger, Jane Genova of Law and More, who blogged 3 to 6 posts a day during a civil jury trial about lead paint in the US.
Original post: Apple has announced the iPhone. But Cisco owns a trademark “Iphone”. So Cisco has sued Apple. And a top Cisco exec is blogging about the case, waging the war in the court of public opinion. This post considers that blog and a handful of blogs set up by journalists covering cases of public interest, mainly murder trials of whites from the look of things. Continue reading “Case specific blogs start appearing”