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LIV President's Blog 2012

LIV President's Blog 2013

Reynah Tang, LIV President 2013 on the latest issues and topics. Read and comment.

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Discovery battle outcome sends message to lawyers: 'be nice'

Discovery battle outcome sends message to lawyers: 'be nice'

The High Court has recently handed down an important decision on legal ethics in the context of the inadvertent disclosure of privileged material. This week’s guest blogger is one of the LIV’s ethics lawyers, Michael Dolan, who analyses the High Court decision and what it means for us as practitioners.

High Court tells lawyers to be ethical
Five High Court judges have just sent a very clear message to Australian lawyers – you are officers of the Court and you have an ethical obligation to assist the court in the proper administration of justice. (ERA Group v Armstrong) 

As lawyers we have always known that our duty to the Court trumps all of our other duties.  What happened in this case to cause the High Court to once again emphasize this fundamental principle of legal professional practice?

The facts
In the course of discovery in a major commercial dispute in the Supreme Court of NSW the defendant’s solicitors by mistake provided to the plaintiff’s solicitors material on compact disks which was confidential and subject to client legal privilege.  The defendant’s solicitors sought the return of the material and an undertaking from the plaintiff’s solicitors not to use the privileged material in the litigation. The plaintiff’s solicitors refused to return the documents and provide the undertaking on the basis that the privilege attaching to the documents had been waived.

The legal outcome
The trial judge found for the defendants and ordered return of the documents, but that decision was reversed by the Court of Appeal. The High Court overturned that decision with some very clear and frank language about solicitors needing to comply with the Civil Procedure Act and their professional ethical obligations.

Do not become distracted from the main issues
The High Court was extremely critical of the plaintiff’s conduct in pursuing satellite interlocutory proceedings that did not fulfill the overriding purpose of the Civil Procedure Act and said that this kind of conduct should be avoided. “It involved a relatively minor issue relating to discovery, the resolution of which appears to have offered little advantage to (the plaintiffs).  Its determination went no way towards the resolution of the real issues between the parties. Instead, it has distracted them from taking steps to a final hearing, encouraged the outlay of considerable expense and squandered the resources of the Court.  What the Court was faced with was a mistake which had occurred in the course of discovery. It was necessary that the mistake be corrected and the parties continue with their preparation for trial

The importance of the ethics relating to inadvertent disclosure
In what appears to be the High Court’s first comment on the new Australian Solicitor’s Conduct Rules, the High Court said that the rule requiring a solicitor to return material which is known or reasonably suspected to be confidential, where the solicitor is aware that its disclosure was inadvertent, is not necessary. 

In the not too distant past it was understood that acting this way obviates unnecessary and costly interlocutory applications.  It permits a prompt return to the status quo and thereby avoids complications which may arise in the making of orders for the rectification of the mistake and the return of the documents. This approach is important in a number of respects. One effect is that it promotes conduct which will assist the court to facilitate the overriding purposes of the CPA. It is an example of professional, ethical obligations of legal practitioners supporting the objectives of the proper administration of justice.”

The President’s view
Stepping back from the decision, as President it seems to me there is a wider point, that we are members of one profession and it should not be seen as a game of winning at all costs. We need to demonstrate integrity in our dealings with one another. A good starting may be to reflect on how we would like to be treated if the shoe were on the other foot.

What sort of issues do you see in practice that concern you from an ethical standpoint?

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Russell Cocks
I have not yet read the case but my initial reaction is that the result seems to be ignoring the interests of a fairly important party - the client. I accept the proposition that, objectively, the duty to the Court trumps the duty to the client but taking an "all is forgiven" approach to inadvertent disclosure may be an outcome that clients may find hard to accept.
16/11/2013 9:52:06 AM

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