Not quite gelling

Tightening the screws on prisoners ... Qld bar speaking from both sides of its mouth ... Dale gets Clutz to cough-up costs ... More bullying ... Handy loopholes in new solicitors' conduct rules 

CONFUSION and misunderstanding continue to befuddle the Qld bar 'n' grill. 

Ever since the fiery AGM on Nov. 27 the leadership has been backtracking at a million miles an hour that they had in any way, shape, form or fashion sought to help attorney general Bjelke-Bleijie strengthen legislation to keep dangerous sex offenders banged-up indefinitely.   

This all came to a head because young Bjelke had blurted out to an ABC television audience that the bar was working with the government to strengthen the Dangerous Prisoners (Sexual Offenders) Act 2003 to "make it harder for the courts to release" this category of offender. 

The bar bosses claim their intention has been somehow to get the DPSO Act to step-up to the plate more enthusiastically so that the Public Interest Declarations Act, 2013, which provides for executive detention of prisoners, can be repealed. 

New president Peter Davis in a missive to the rank-and-file on Dec. 3 attached a copy of a submission the bar made to Bjelke, dated Nov. 14 and signed by outgoing prez, Roger (No Waves) Traves.  

"It was not, and was not intended to be seen as, the Bar Association working with the government to strengthen the existing legislation (other than to urge its review)." 

Indeed, the controversy has so energised the bar council that Davis now wants the bar to review itself - specifically the way it deals with government. 

Again in the Brisbane Times (Dec. 9) Davis is quoted as saying: 

"[The bar] had not assisted the government to strengthen the dangerous prisoners legislation to make it harder for courts to release prisoners into the community; nor will we do so." 

However, the bar's submission to the AG doesn't quite gel with those protestations. It says:   

"In the view of the bar association, if the policy of the government be to tighten the law relating to the release of dangerous prisoners, that can be achieved by amendment of the existing legislation ... 

With a view to achieving that objective, I herein set out a number of aspects of the current legislation which might usefully be addressed." 

(Emph added.)

Fresh rumblings are afoot to have this misunderstanding undergo further clarification. 

*   *   *

Dale: still a way to go

Nice to see that Chris Dale had another delightful win against his old home away from home - Clayton Utz. 

In March, Justice Elizabeth Hollingworth in the VicSupremes granted an injunction restraining Clutz from briefing Alan Myers to defend Dale's wrongful dismissal case.  

The massive law shop was all set to appeal, and then thought better of it and filed a notice of discontinuance.  

More background here  

Dale applied for his costs of the successful injunction application and associated proceedings, with Peter Riordan for Clutz strenuously opposing that idea on the ground that the costs of the application should be costs in the proceedings. 

Again, Hollingworth couldn't have disagreed more and said that a departure from the ordinary rule was required. Costs were to be paid to Mr Dale and were taxable immediately. 

See here  

*   *   *

Last month we ran a story about the NSW parliamentary inquiry into allegations of bullying at the  workplace health and safety enforcer, WorkCover.  

For the sake of completeness we include this extra submission to the inquiry from someone whose name has been suppressed. 

Intriguingly, this member of WorkCover's staff has gone to the trouble of documenting the occasions they have heard one of the managers allegedly used the word "f***" in the office. 

The submission says this manager should have been counselled because his alleged use of "degrading comments" were a serious risk to health and safety. 

WorkCover Bullying

 

Recently the Legal Services Board in Vic sent out an alert warning lawyers not to threaten practitioners on the other side with spurious accusations of professional misconduct, or menaces that costs and damages will be pursued personally, or intimations that criminal proceedings could be taken against an opposing firm's client. 

Apparently, the LSB has seen an increase in complaints alleging a wide variety of exciting forms of intimidation and bullying by professionals against other professionals.  

*   *   *

Already there is much smacking of chops at the fresh horizons that will open up now that some of the ethical standards have been compromised under the new solicitors' conduct rules. 

The new regime has been adopted by SA, Qld and, as of January 1, NSW. Victoria has agreed in principle, but has yet to set a date. WA is holding out for the purer standards that it can set for itself. 

Among the most juicy, are amendments to the old rule against acting for more than one party. This change comes courtesy of the "large firm members" on the Law Council. 

For instance, the current rule 9 in NSW says that solicitors must cease to act for all the parties in proceedings or transactions if "obliged to act in a manner contrary to the interests of one or more of them".  

Not so under the revised national ethical landscape. 

The new rule 11 is a fabulous confection of convoluted loopholes.  

Informed consent is preserved, but where an actual conflict arises between the duties owed to two or more clients, the solicitor or law practice may continue acting, provided that things are stuffed behind a Chinese wall. 

This suits the large firms down to the ground. 

The Law Council's commentary on new rule 11 runs to six pages, reminding us that the longer the commentary the dodgier the rule.  

Then there is rule 12, widening the field to accommodate solicitors' own interests and referral fees. This conflicts with rule 4.1.4: 

"A solicitor must also ... avoid any compromise to their ... professional independence." 

Comparisons between the old and new rules in NSW can be found here.  

Sydney based law ethics guru Neil Watt, who had a hand in the formulation of the new conduct rules (although steadfastly opposed to rules 11 & 12) volunteered his services for free to conduct seminars for the Law Society. 

Instead, the Law Society turned the occasion into a nice little money spinner and charged to bring members up-to-speed on the new rules (at a reduced rate of $40 a head to cover "costs"). 

In the end the College of Knowledge ran Watt's seminars for free and all were booked out in seconds.  

This seems like a weird turn of events. The College of Law is a commercial business, but provided the seminars without charge. The Law Society is supposed to be a not-for-profit, partially government funded, operation yet extracted a nifty fee from its members for what is an essential service.