Failure to follow one's own advice ... Adventures in Discovery Land ... High Court goes to town on failure to return privileged doscuments ... Bollicking for NSW Appeals and Marque Lawyers ... Marque's chieftan so eloquant on matters of principle ... Alix Piatek reports
Michael Bradley: Marque My WordsBEFORE the High Court's magnificent kick-up-the backside delivered to Marque Lawyers and the NSW Supremes fade from our memories there are a few pertinent ironies to run up the flagpole.
The judges on High said that Marque should return all the privileged documents that were inadvertently delivered to them by Norton Rose.
The entire folly took three separate hearings and nine judges, with the High Court finding that the NSW Supremes ...
"has all the powers necessary to deal with an issue relating to discovery and which required, essentially, that a party be permitted to correct a mistake."
It was clear that French, Kiefel, Bell, Gageler and Keane were unimpressed with having to settle a dispute that should never have come to Canberra.
The interlocutory proceedings "encouraged the outlay of considerable expense and squandered the resources of the court".
"Proceedings of this kind and length concerning a tangential issue should have been averted."
The dispute was between parties who had established an insurance expense consulting business.
Norton Rose, for the defendants, prepared 60,000 documents for court ordered discovery, and in the process inadvertently marked 13 documents subject to client legal privilege to be included in the file served on Marque Lawyers.
Senior associate Hannah Marshall noticed the discrepancies and wrote to Norton Rose pointing out that client legal privilege had been claimed for documents, but not for others that were of similar nature.
Norton Rose's litigation man, Stephen Klotz requested documents be returned so the mistake could be rectified.
Marque refused, claiming that client legal privilege had already been waived.
Paddy Bergin at the NSW Supremes (Madam Equity) decided that nine of the 13 documents had to be returned because their disclosure had been inadvertent.
Justice Patricia Bergin with her Doctor of Laws honoris causa The Court of Appeal made heavy work of it with (Smokin') Joe Campbell, Roberto Macfarlan and Ronnie Sackville embarking on a determination of whether relief could be found under law or equity and concluding that the disclosure related to the law of confidential information.
In the end they thought the plaintiffs could keep all 13 of the privileged documents.
The High Court was incredulous, saying a waiver of privilege should never have been considered and that all 13 documents remained privileged because disclosure was "inadvertent and unintentional".
"It was sufficient to prove that the [defendants] intended to maintain their claims to privilege and that the reviewers were carrying out their clients’ instructions ...
In the not too distant past it was understood that acting in this way obviates unnecessary and costly interlocutory applications ... It is an example of professional, ethical obligations of legal practitioners supporting the objectives of the proper administration of justice."
The High thought that the conduct of the lawyers was of the very kind the Civil Procedure Act seeks to address.
Rule 31 of the Australian Solicitors' Conduct Rules also got a mention - material inadvertently disclosured be returned immediately.
The Law Society of NSW is planning to adopt these rules, but the High Court said a rule of the kind isn't even necessary.
The weird thing is that Michael Bradley, the public face of Marque Lawyers, couldn't agree more with these noble sentiments - if his writings are any guide.
Bradley has been a big-time exponent of the Lawyers Good Housekeeping Award.
In fact he recently wrote an ebook touching on the importance of lawyers getting back their respect. It's called Kill All The Lawyers - The Decline and Fall of the Legal Profession:
"Lawyers have always been unloved, but they used to be respected. Now they're despised. I think that's because the legal profession long since ceased being a profession, and everyone knows that, but lawyers still think and act like they're special.
The disconnection between perception and reality is the cause of the profession’s demise. I also think it's going to get worse, and that's a big problem for civil society - if lawyers are held in contempt, the law itself will follow."
In October 2012 Bradley appeared on Justinian's couch, where we asked him:
What do you consider is so special about Marque Lawyers?
Answer: "We're carving out a different path and being quite open about it, in the most conservative industry on earth."
We also discovered this high flown sentiment in his handy little ebook:
"The legal profession has at its very core a set of ancient values - a sacred code, if you like - expressed a little less dramatically these days as ethical obligations, or values.
Without these values, the legal profession cannot pretend to be a profession at all, but rather a class of skilled specialists for hire. Any threat to these values' centrality in the professional lives of lawyers is an existential threat to the law itself."
The High Court couldn't have put it better itself.
Tellingly Bradley was fired up about the massive C7 litigation:
"I couldn't possibly suggest that the lawyers in that case preferred their firms' financial interests to the rather obvious interest of their clients - that is, in not spending such a ridiculous amount of money on litigation that in the end achieved nothing at all.
I have no idea what they advised (although I've heard some hilarious stories about it), but put yourself in their shoes. You might push for an early settlement to bring the circus to an end because that was what should have happened all along, or you might not.
But you would definitely feel the tempting pull of the gravy train. I would. That's the ethical dilemma right there, and it's caused by the profit motive."
Enough said.
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited