Judge reading over your shoulder

One of the first lessons you learn as a lawyer is never to write anything that you wouldn’t be happy to be read by anyone. You can mostly rely on legal professional privilege to avoid what you have written falling into the hands of enemies of your client, but that will not protect disparaging remarks about your own client which you may be tempted to make to a fellow lawyer who also has to deal with that client. The same goes for rude remarks you may make about others: you can never foresee when, especially if you and your client later fall out (and believe me, it happens) such remarks may not embarrassingly see the light of day. A special category must be heated words you may be tempted to address to the other side.

This is encapsulated in the advice given to beginning lawyers: “Imagine the judge is reading over your shoulder.”

There is an example of this in the latest judgment in the Rinehart saga, in this case by Justice White on an application by the dissentient children, Bianca and John, for preliminary discovery – that is, production of documents to see if they want to pursue a case against their mother or others concerning her previous administration of the trust in their favour (of which Bianca has now been appointed trustee).

It involves Paul McCann, then a partner of Corrs, whose hardball tactics against John Ellis on the instructions of Cardinal Pell (or his secretary) came under scrutiny in the Royal Commission into Institutional Responses to Sexual Abuse of Children. Mr McCann has since left Corrs for a boutique firm.

Easiest just to quote Justice White – Rinehart & Anor v Rinehart & Anor [2015] NSWSC 1201 at [26] to [28]:

26. Corrs Chambers Westgarth’s letter of 23 January 2014 was signed by Mr Paul McCann, a partner of that firm. It contained statements which cannot be allowed to pass without comment. Mr McCann wrote:

“Any cursory examination of the information on which you have chosen to focus would make it clear that your analysis is disingenuous and mischievous. Either you are attempting to provide a misleading interpretation of the facts, or you and your clients do not understand the basis upon which financial statements in Australia are prepared (and have not bothered to read the relevant accounting policy notes in the financial statements).

Reserving your clients’ rights under such circumstances is a shallow and obvious admission of unwarranted greed on the part of your clients (and in one case, their partner).”

27. One of the fundamental ethical duties of a solicitor is to be courteous in all dealings in the course of legal practice (Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), r 4.1.2 and formerly New South Wales Professional Conduct and Practice Rules 2013 (Solicitors’ Rules) r 4.1.2). If the practice of law is to be regarded as a profession it should go without saying that courtesy should be shown as a mark of respect in dealing with professional colleagues. Discourteous conduct is likely to increase tensions, inflame disputes and bring the administration of justice, in its wider sense, into disrepute. As has been said:

“Civility within the legal system not only holds the profession together, but also contributes to the continuation of a just society … Conduct that may be characterized as uncivil, abrasive, hostile, or obstructive necessarily impedes the goal of resolving conflicts rationally, peacefully, and efficiently, in turn delaying or even denying justice.”

(KA Nagorney “A Noble Profession? A Discussion of Civility Among Lawyers” (1999) 12 Georgetown Journal of Legal Ethics 815 at 816-817, quoted in Riley Solicitors Manual (LexisNexis Online) at [28,010.5]).

28. When such uncivil behaviour comes to the attention of the Court it should be noticed and condemned.


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