Gilded orb of the Yarraside bar removed from appearing for Clayton Utz in bitter litigation over sacking of partner Christopher Dale ... Silk can't remember meeting and giving advice that is now the subject of litigation
Myers: duty of loyalty to Chris Dale
FORMER LIV prez Chris Dale has succeeded in knocking out massively rich and ultra smooth Melbourne silk Allan Myers from appearing against him in litigation with his old law shop, Clayton Utz.
Dale is suing Clutz for terminating him as a partner in September 2005. The firm briefed Myers, who prepared the defence which was filed in January 2012.
Justice Elizabeth Hollingworth has now granted an injunction to stop Clatyon Utz continuing to engage Myers in these proceedings.
She found that as a result of a meeting in August 2004 a professional relationship existed between Dale and Myers.
During the meeting Dale communicated confidential information to the mighty brief, about the very issues that would be the subject of cross-examination in the wrongful termination case.
In these circumstances the judge concluded that a "fair minded and reasonably informed member of the public" might think her orders were appropriate.
Myers said he has no memory of the 2004 meeting at all.
Dale said he went to see Myers because Clayton Utz was kicking-up a fuss about the way too much money was being spent on disbursements in a pro bono case he was handling.
It seems there are few things more shameful than spending too much on a pro bono matter.
According to Dale, Myers advised him to pay back the disbursements to the firm, without admission of any wrongdoing - which is what happened.
However, by this stage Dale was on the skids at Clayton Utz and a year later was kicked-out.
Hollingworth put it nicely:
"If Mr Myers' memory were to return, there is the possibility that he might be a witness at the trial, presumably called by Clayton Utz to rebut Mr Dale's evidence about why he agreed to reimburse the disbursements ...
If Mr Myers' memory did not return, Mr Dale would be in the invidious position of being cross-examined about the basis on which he agreed to reimburse the disbursements, by the very person whose advice he sought about the matter."
In order to support his evidence that he had indeed met with Myers at his chambers Dale produced an email he sent to his brother Michael Dale, in which he made mention of the 2004 meeting. He added:
"The good thing about Allan is that he is not motivated by money."
In earlier cross-examination Clayton Utz sought to skewer Dale's credibility by pointing to his denial to managing partner David Fagan that he had leaked to The Sunday Age damaging confidential documents about the firm's role in the McCabe tobacco litigation.
He subsequently admitted that he had been responsible for those documents finding their way into the newspaper.
Fagan's original letter did not directly ask Dale whether he was the source of the leak.
Hollingworth said that "in the context in which it was written the approach by Mr Dale [and his solicitor, Frank O'Donnell] is understandable".
"At the end of the day, neither the solicitors' correspondence, nor the way Mr Dale behaved when cross-examined about it, causes me to doubt Mr Dale's credibility in relation to his evidence concerning his dealings with Mr Myers."
The Herculean struggle proceeds, without Mr Moneybags.
See also: Allan Myers in the box
Full judgment: Christopher Dale v Clayton Utz (a firm)