ETHICS …WITH A LITTLE BIT OF Neil Watt Snr Ethics Lawyer, QLS Centre for lawyers’ ethics Ph 3842 5843 DONOGHUE V STEVENSON – 26 MAY 1932 (79) Lord Atkin was a Queenslander! ….and a bit Welsh HERE’S ONE FOR STARTERS.. You receive a call from the office manager of a long-standing commercial client. She has a colleague in need of legal advice. Being a helpful sort, you say “Send him over!” That’s when the problems started… I LOVE THIS PROFESSION… I LOVE THIS PROFESSION…MOST DAYS WHY IS ETHICS IMPORTANT? ETHICS DEVELOPMENTS Australian Solicitors’ Conduct Rules - Introduced sometime in 2011 Australian Lawyers’ Ethics website: http://www.ethics.qls.com.au Ethics DVD: COMING SOON 3842 5843 QLS Centre for Lawyers’ Ethics [email protected] THE BASICS Legal Profession (Solicitors Rule) 2007 Australian Solicitors’ Conduct Rules All words…. Give me principles! ‘if ethics were reduced to rules, a spiritless compliance would soon be replaced by skillful evasion.’ Sir Gerard Brennan CJ AND EVEN MORE BASIC SO APPLY THAT TO THIS… You’re called as a witness to contested issues in your client’s matter. What are the issues? What would you do? RULES 13.4 A solicitor must not unless exceptional circumstances warrant otherwise in the solicitor’s considered opinion:13.4.1 appear for a client at any hearing, or 13.4.2 continue to act for a client, in a case in which it is known, or becomes apparent, that the solicitor will be required to give evidence material to the determination of contested issues before the court. THE ASCR SUGGESTS THIS… 27.1 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing. 27.2 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member may act or continue to act for the client unless doing so would prejudice the administration of justice. Which is why I prefer principle over rules… THE TROUBLE WITH FORMER CLIENTS… They keep turning up… WHAT HAPPENS WHEN… One of your former crim defence clients appears as a witness for the Crown … and you are involved in cross examination? ACTING AGAINST A FORMER CLIENT? IF you hold • Confidential information • Relevant to the current matter • That your former client could reasonably believe would be used to his/her detriment You cannot act (Bolkiah v KPMG & see Rule 4) But is this acting against a former client? ENTER FORDHAM… Fordham v Legal Practitioners Complaints Committee (1997) WAR 467 No breach of confidentiality, but Cross-examination involved facts common to her own representation of the former client FORDHAM… The court found that: her actions amounted to a breach of loyalty to her client irrespective of any breach of confidentiality; her actions could have led a reasonable observer to conclude that she had indeed used confidential information to the detriment of her former client. she had breached a duty not to adopt a position hostile to a former client in the same or a related matter. SO… • Public perception and • Risk to public confidence in the legal profession played a significant part in the outcome Those duties to the community are important! AND SO… No absolute prohibition on acting BUT bear these things in mind: Confidentiality: Clearly there is a prohibition on using confidential or privileged information gained during the retainer against your former client. “Getting-to-know-you” factors: Not all confidential information is found in your files. In criminal and family matters in particular, the court considers the impressions you gained about the person – their character, habits, strengths, weaknesses, attitudes – as also being “information” gained during the retainer, and places restrictions on its use due to concerns over its prejudicial effect. (Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357 at 368) Relevance to the current matter: Clearly if you are representing a client in a matter arising from the same set of facts for which you represented the former client, then cross-examining the former client becomes problematic. The challenges of navigating a course through your duties to your current client and your duties of confidentiality to your former client would likely place you in an irretrievable conflict of duties. Learn from Fordham and steer clear. Proximity to the current matter: Obviously this is related to the point above but focuses on the period of time since you represented the former client. Someone you represented 10 years ago in an unrelated matter is less likely to raise ethical barriers to cross-examination than someone you represented a short time ago. Strength of the relationship with the former client: If you were this person’s lawyer over an extended period, your former client may well regard you as “their lawyer” far more than someone you represented fleetingly as a duty lawyer. In such a situation you would also have built up a sizeable bank of ‘impressions’ that may preclude you from cross-examining a former client even if the matters are unrelated DELINQUENT CLIENTS…. What do you do if your client misleads you – and you, in turn, mislead the Court? Perpetual Trustee v McLelland  QSC 65 McClelland & Anor v Perpetual Trustee Co. Ltd  QCA 281 MISLEADING – IN STEREO! Left Speaker: The client misled the Court Right Speaker: The solicitor provided an affadivit In swearing an affidavit in support of his client's application, her Honour held that "he expressed a personal opinion which appeared to provide independent confirmation" of the client's assertions (para 57 1st inst) SO WHAT YOU GONNA DO? Client lies to the Court? Lawyer misleads the Court, be it inadvertently or not? Rules 14 and 15 Legal Profession (Solicitors’) Rules 2007 NEW TECHNOLOGIES ETHICS & TECHNOLOGY Email Twitter/Facebook/Social media Cloud Webpages/Advertising See Scott Coulthart Legal IT Lawyers - http://legalit.com.au EMAIL Communications and Courtesy: • The biggest ethical issue is presented by the speed & ease with which you can send it! • How often have you sent an emotional response? A careless response? Confidentiality / Privilege • Forwarding/sending by accident • Forwarding the entire email sequence • Ease of copying/sending by others • If you want something kept secret – don’t email it. WHAT ABOUT THIS? You act for a group of company shareholders and directors (Group A) in an action against another group of shareholders and directors (Group B). One of the Group A directors triumphantly enters your office brandishing a printed email. The email contains correspondence between a Group B director and their lawyers. It contains information in relation to strategic issues associated with the conduct of their case. The Group A director advises that as a director she has lawful access to all company emails and this was sent using a company computer. Can you use the document? Is it inadvertent disclosure? OK, IT’S NOT AN EMAIL, BUT TODAY IT WOULD BE… TWITTER/FACEBOOK, SOCIAL MEDIA ETC ETC Communications and Courtesy • Again – beware the ease of communication • Beware the off-duty blowback Confidentiality / Privilege • Social media is all about sharing snippets of your day. Much of a lawyers day isn’t a topic for open conversation. • What you may think is de identified may be identifiable to someone • Note that each post is permanently stored on a server somewhere. • As I recently tweeted – “Don’t drink and Tweet!” SOCIAL MEDIA IN COURT UK’s most senior judge, Lord Judge (no, not kidding about his name), has handed down practice directions supporting the use of Twitter in court by reporters wanting to report on the relevant case, as long as they are using it to report the case fairly. His Honour said that it was an important element of open justice to allow these forms of social media to be used in court. Australian courts are also happily referring to social media now, and taking their operation into account, in various court decisions. Danger lies in publication involving fewer checks and balances. Bear in mind duties to the Court – and pause before you hit send! SO… You’re involved in a family law dispute . Your client advises that there is personal information on their ex’s Facebook page that would be helpful to his case. Her Facebook page is set to “Friends Only”. Can you obtain the information by “Friending” the ex? Would it make any difference if the Facebook info was open? IS IT DISCOVERABLE? (not ethics, but legally interesting & worth cautioning your clients) McMillen v. Hummingbird Speedway (US) The court ordered disclosure of the Facebook password of one of the parties so that access could be gained by the other side to the relevant Facebook account. Rule of Thumb: If you don’t want it seen by the whole world – don’t put it on social media! CLOUD COMPUTING What is it? • Refers to the use of 3rd Party servers to store your data/files/software • If you use email you already use “the Cloud” • Provides benefits to solicitors struggling with storage of archived files • Sometimes the provider is onshore and often offshore Confidentiality / Privilege. • Is offshore hosting an issue? Duty to Clients • If you are outsourcing file storage is informed consent required? (regardless of how it is stored?) Providers • What guarantees do you want from providers? • Are they any different from other outsourcing guarantees you seek? WHEN ENOUGH’S ENOUGH… FIRING A CLIENT When is it ok? What are the issues to consider? JUST CAUSE? Your client is a committed conservationist who wishes to challenge a government decision to allow construction of domestic dwellings in an environmentally sensitive area. On examining the grounds for appeal you realise this is a hopeless case and instruct your client accordingly. Your client insists on proceeding. Is this just cause for terminating the retainer? What are the issues you need to consider? RULE 6 TERMINATION OF RETAINER 6.1 A practitioner must complete the legal services required by the practitioner's engagement, unless 6.1.1 the practitioner and the practitioner's client have otherwise agreed; 6.1.2 the practitioner is discharged from the engagement by the client; 6.1.3 the practitioner terminates the engagement for just cause, and on reasonable notice to the client; or 6.1.4 in the case of a practitioner not being a firm, the practitioner’s engagement is terminated by the practitioner’s firm. THE CURIOUS CASE OF BUXTON V MILLS-OWEN  EWHC 1831 (QB) – Justice Mackay  EWCA Civ 122;  WLR (D) 49 – Court of Appeal Entire contract? Can you claim your fees? Duties to the Court v Duties to Client? THE “LOSS OF CONFIDENCE“ ESCAPE CLAUSE Should this be included in a retainer? When should it be used? IN THE END IT ALL COMES DOWN TO 10 WORDS THANKS FOR HAVING ME AT YOUR PLACE!