Introduction
AUSTRALIA — The behavior of Clayton Utz and Mallesons Stephen Jaques lawyers in advising Australia’s biggest tobacco company on its documents policies will be investigated by legal regulators.
If the lawyers are found to have been involved in misconduct or unsatisfactory conduct they face a range of possible sanctions including cancellation of their practicing certificates.
Victorian Supreme Court judge Justice Geoffrey Eames this week found that one of Australia’s leading law firms, Clayton Utz, and British American Tobacco Australia Services had subverted court processes to deny lung cancer sufferer Rolah McCabe a fair trial. He also found that Clayton Utz and the company had destroyed thousands of internal records to that they would not have to be produced in health-related court cases.
He criticized Clayton Utz partners including Richard Travers and Brian Wilson. He said Robyn Chalmers from Mallesons had not consciously prepared misleading and evasive affidavits, “but that was their effect” because she had been denied information by Clayton Utz.
The Australian Competition and Consumer Commission is investigating if Clayton Utz was involved in misleading, deceptive or unconscionable conduct that breached the Trade Practices Act. The Victorian Law Institute yesterday wrote to the New South Wales Law Society raising Justice Eames’ findings. No decision has been made about which body will investigate the matter, but it appears most likely it will be either the NSW Law Society or the Office of the Legal Services Commissioner in NSW.
If there is a finding that misconduct has occurred the matter will be referred to the legal practitioners tribunal.
NSW Legal Services Commissioner Steve Mark said any investigation would look at whether the practitioners had colluded with, advised or been involved with destruction of documents that led to the misleading of the court. “Very likely I’m going to be the one who investigates it,” he said. “I oversee the entire process of investigations of this sort in New South Wales. I have all the powers of the Law Society and the power to oversee their work. I make all the decisions about who’s going to do what.” Mr. Mark said the average time to complete an investigation was about six months. He said the court’s findings were “absolutely appalling.”
“If the allegations were to be proved true, then that would undoubtedly lead to prosecutions for individual practitioners for professional misconduct. If the law firm has advised or been complicit in or themselves destroyed documents essential to a case that is clearly misconduct. Clearly,” Mr. Mark said.
The president of the Law Institute of Victoria, John Cain, said the three lawyers named in Justice Eames judgment are all registered in NSW and established protocols meant the inquiry would be in NSW.
The president of the NSW Law Society Kim Cull said complaints were routinely referred to the Legal Services Commissioner who either investigated himself or referred them back to the society.
Ms. Cull said it was also possible for either body to initiate its own complaint. “What I would say generally is that if the nature of the allegations that are alleged are made out, they are cause for very serious concern,” she said. “There can be times with the very commercial environment that the legal profession finds itself in these days whenduties to the client conflict with the overriding obligation to the court. This case may be, if the allegations are made out, a very good illustration of those tensions. We have ethical rules in NSW and if solicitors adhere to those rules they will not find themselves in trouble.”
Clayton Utz issued a statement yesterday denying it had ever advised the company to dispose of prejudicial documents so their production could be avoided in litigation. The company was appealing the finding.
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