In-House Counsel Day Priorities for 2012

Transcription

1 In-House Counsel Day Priorities for 2012 Ethics Legal Professional Privilege Presented by Scott McDonald Thursday 8 March 2012, Sydney WIN: What in-house lawyers need Knowledge, support and networking for the in-house lawyer community

2 Contents 1. Ethics What are they? 2. Conflicts of Duty and Loyalty 3. Independence 4. Personal conduct 5. Legal professional privilege 6. Latest cases

3 1. Ethics what are they? The word ethics comes from two Greek words Ethikos practice and custom Ethos character Conform to the customs and character of the community System of conduct that sometimes is the same as the law, other times goes beyond or may even conflict with the law

4 1. Ethics how do they impact? Act in the best interests of the client Confirm our role as an officer of court Undertakings Discovery obligations Strive for independence avoid conflicts of interest Serve the profession

5 1. Ethics what is the perception of lawyers? Modern perceptions of lawyers generally unfavourable Impacted by TV and movie roles and characterisations Unfavourable media coverage, especially in criminal law and ICAC-type areas Low esteem re honesty and ethics

6 2. Potential conflicts of duty and loyalty in-house Who is my client? In larger corporate groups, you need to document who is client who advising, in what role basis of advice facts, documents advice

7 2. Conflicts of duty and loyalty Potential examples legal professional privilege can t advise employees when conflict with corporation opinion shopping 2 nd and 3 rd opinion? properly and fully brief external solicitors discovery compliance and public interest treatment of whistleblowers

8 3. Independence promote and adopt codes of compliance and policies client is corporation not individuals, board, shareholders should report directly to CEO or Chair should be arm s length with external legal advisers duties of confidentiality, privacy and fidelity

9 4. Personal conduct The values you display in your personal life impact on your job as a lawyer e.g. honesty, courtesy, respect for the law As a lawyer you are judged by the actions and behaviour you exhibit 24/7 Higher expectations are placed on professionals, especially lawyers, by courts e.g. Marcus Einfeld and the courts responses to non-lodgement of tax returns by lawyers Honesty and transparency is indispensable to a successful legal career

10 4. Personal conduct Other inappropriate conduct Unbecoming public conduct / lacking decorum Blaming others for failures Inappropriate s / correspondence Criminal conduct: recreational drugs, property damage, driving offences Character is tested not by what one does in good times but in bad (Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 449 per Mahoney JA)

11 Honesty is fundamental to being a lawyer Deceitfulness is a character flaw that is thought by most legal practitioners as well as others not to be confined in separate compartments of one s life. It is commonly thought that people who have indulged in deceit for their own advantage are likely to be deceitful again when it suits them, whatever they are involved in and whether it be in the course of legal practice or otherwise. Trust is one of the cornerstones of legal practice. Honest dealing is fundamental to fitness to practice. (NSW Bar Association v Sahade [2005] NSWADT 159 at 83)

12 5. Legal Professional Privilege Now client legal privilege common law and Legal Profession Act 2005 (NSW) attaches to confidential communications between a client and lawyer, the dominant purpose of which was for: legal advice; or litigation was sole purpose test, now dominant purpose since mid- 90 s attaches to the client, not the lawyer

13 5. Legal Professional Privilege Onus of proof on party asserting privilege court examines, not counter party document sealed and attached to affidavit a court will examine all surrounding circumstances, including dates retainer independence nature of communication

14 5. Legal Professional Privilege Waiver of privilege only client may relinquish it may be by express or implied conduct where inconsistency between conduct of client and maintenance of confidentiality

15 5. Legal Professional Privilege How in-house counsel can maintain a claim for privilege: independence current practicing certificate legal not management role no other role for client company (company secretary, shares) letterhead / sign-off set up firm within company

16 6. Latest In-House Counsel Cases Dye v Commonwealth Securities Ltd (No.5) [2010] FCA 950 Banksia Mortgages Ltd v Croker [2010] NSWSC 535