Over the last few weeks we have been able to read the
judicial and regulatory consequences of lawyers behaving badly. Not badly in the sense of running off with
client funds, nor badly in the sense of giving negligent advice badly, but
losing their sense of professional obligation to the courts in the pursuit of
their clients’ (employers’) interests.
The cases I refer to include those of Alastair Brett and
Andrew Shaw. While both acted wrongly,
they both had very good reputations before their respective falls from grace. Just like you and me. Since they were just like you and me, is it
safe to characterise them as bad hats or (as I think) should we look more
carefully at their cases to draw our own warning lessons?
The Brett case is perhaps the better known. The experienced, highly respected Times
lawyer was not the only witness in the Leveson Inquiry to have been filleted by
Robert Jay QC, but his cross-examination was one of the more painful for on-looking
lawyers. No need to go into the minutiae
– we can note that Brett made two mistakes which did for him. One was in blurring the distinction between
his client (the corporation) and the employee of that corporation with whom he
was dealing; the other was in failing to take the opportunity to gain, when
available to him, some external expert advice – as a consequence of which Brett’s
advice to his employer took it, and him, down some unfortunate channels.
For we in-house lawyers, our client will be our employer, but
in most cases the employer will be a lifeless corporation, unable to breathe or
speak other than through the medium of its employees. So we have to deal with a natural person
whose interests and position may consequently differ from the legal person to
whom our client duties lie. And that is
where in-house lawyers must always be careful to ask themselves whether there
is a difference and if so what consequences attach.
In Brett’s case, the unflinching torch beam of hindsight
makes it plain that the interests and position of the employee and the
corporation were not consistent and a line was crossed – in his case, with the
result that the court was misled. At the
time and in the circumstances, I am not so sure the position would have been
that clear. In-house lawyers are forever
being told to get close to their clients – not least by the likes of me – to
form part of the team, even to avoid using the word “client” (see my last blog
- http://jdsofislip.blogspot.co.uk/2013/12/walks-like-duck-quacks-like-duck.html)[1]. Deciding that, in a particular instance, the
advice given to an employee is one side, or the other, of this line could be
hard enough in a laboratory environment; in the political, busy, nuanced world
of a typical in-house lawyer, it is very hard.
In
respect of Brett’s other error, that of mistaking the legal position, the
nature of the in-house role means that many of us find ourselves having to
advise on areas of law that are outside our immediate knowledge. In many cases the consequences of making an
intelligent, but incorrect, assessment of the legal position in such a foreign
field will be limited. But occasionally
there is greater danger afoot – in Brett’s case, misunderstanding the law
contributed to his misleading the court.
There but for the grace of God…
Andrew
Shaw’s case involved not an in-house lawyer, but a private practice lawyer,
getting into a tangle over the exercise of the duty of full and frank
disclosure required for without notice court hearings (ones of which the other
party is unaware).
My
own full and frank disclosure is that I worked with, and for, Andrew Shaw when
I was a very junior lawyer. I knew him
to be a bright and innovative lawyer, a tenacious and determined litigator, and
highly principled. I suppose it is
possible that this last attribute may have changed in the more than 20 years
which have passed since we worked together, but based on what I had seen, he
would have been rather low on my list of lawyers most likely to end up in
disciplinary trouble.
The
case is a little complex, but the essence of it is that is in representing one
client at a without notice hearing, Shaw did not disclose that this first
client was being funded by another client, something which ought to have been
disclosed. There was also some unhappily
expressed evidence concerning the opponent’s likely whereabouts. These non-disclosures and some other issues subsequently
came to light. Shaw decided to argue
that the facts were consistent with the non-disclosure and that he should not
apologise to the court for (inadvertently) misleading it. The opponent, one Geoffrey Logue, subsequently
decided to refer Shaw and his assistant to the Solicitors’ Disciplinary
Tribunal. The SDT found Shaw to have
been dishonest on a number of grounds. After
a partly successful appeal[2], the case is still open in
certain respects.
Again,
the torchbeam of hindsight makes it clear that the non-disclosure at the first
hearing was a mistake and that, once this mistake had been identified, the only
safe course of action was to confess rather than, as Shaw did, making it worse
by trying to argue otherwise. Lawyers,
in-house or private practice, need of course to put forward the interests of
their clients (colleagues) with as much vigour as the circumstances
require. But those circumstances always
include their status relative to the regulatory position. And lawyers, when they make mistakes (as we
all do), need to be very honest with themselves as these mistakes are
identified and weigh up the balance of owning up or carrying on. Had Shaw been able to analyse his own
situation with the detachment he undoubtedly brings to his cases, he would have
concluded that owning up would attract a modest sanction for his client. Carrying on as he did, in a tightening vortex
of misplaced hope that somehow the facts did support his tenuous argument, only
opened up a far greater potential, career-ending, sanction. For in-house lawyers, in some cases the
choice is between owning up and getting fired, or not owning up and later
getting disbarred. This will be a hard
choice where it arises. But, if you get
fired, there are other jobs in your chosen career. If you get disbarred, there are only other
careers.
While
not all lawyers have the same exposure to their duties to the court as
litigators, we are all subject to this duty and our other regulatory
requirements. Rightly, these
requirements set a high standard of behaviour – one which in complex,
fast-moving situations such as those overwhelming Brett and Shaw can sometimes seem
hard to achieve. There but for the grace
of God…
[1] (At
least, in that blog, I had the foresight to write, “And there are times when the in-house lawyer must be very
conscious of the relationship held with colleagues as a client (in the context of
the professional conduct obligations that lawyers have towards those they
advise)” – phew!).
No comments:
Post a Comment