Proctor : February 2019
25 PROCTOR | February 2019 Ethics *Recommended drive away price for 18MY Range Rover Velar Velar D240 SE ordered and delivered bet ween 01.01.2019 and 28.02.2019 at par ticipating Retailers while stocks last. THE LAND ROVER MAIN EVENT RANGE ROVER VELAR D240 SE FROM $87,990 * DRIVE AWAY LRAU-XCL19-PRT1659_MBA_third_185x80_FA.indd 1 9/1/19 3:00 pm by Stafford Shepherd Notes 1  2 AC 222 (‘Prince Jefri Bolkiah’). 2 Australian Liquor Marketers Pty Ltd v Tasman Liquor Traders Pty Ltd  VSC 324, –. 3  NSWSC 219 (UTi). 4 (2005) 64 NSWLR 561. 5 Ibid 582 . 6 Ibid. 7 Ibid. 8 Ibid. His Honour later said: “The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.” 6 His Honour added that “[t]he jurisdiction is to be regarded as exceptional and is to be exercised with caution” 7 ; and that “[d]ue weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause”. 8 Barrett J said in UTi at paragraph : “Informed consent of the client or former client will cause the client or former client to fail in any attempt to prevent the lawyer’s acting where reliance is placed on the loyalty ground or the confidentiality ground. It is also likely to preclude resort to the administration of justice ground.” Informed consent can be express or implied. The suggested fact scenario outlined above is based on the decision in UTi. Barrett J refused to restrain Piper Alderman. His Honour held: 1. that Piper Alderman by acting in the civil proceedings for the consignee was not acting against UTi in the same or related matter 2. that Piper Alderman by having done work for UTi in the past had gained some insight into the contract practices of UTi. This was, however, nothing more than general knowledge a solicitor could gain whilst practising in this area of law. Such generic information could not be seen as confidential. 3. the circumstances of the fire had not been discussed between Piper Alderman and UTi. UTi had not adduced any evidence as to the content of the information which it claimed was confidential. It needed to do this for the court to assess whether there was a real and sensible possibility of misuse of confidential information. Further it had been suggested that Piper Alderman understood UTi’s attitudes and appetite for risk in contract negotiations, this being confidential information. This was rejected by Barrett J. His Honour thought the real issue was the attitude of the insurer to the question of settlement and not the attitude of UTi itself. 4. as a defendant in the civil claim UTi is actuated by its insurer 5. it was only at a late stage in the litigation that objection was taken to Piper Alderman acting for the consignee and the fact that UTi continued to instruct Piper Alderman and was satisfied with the legal services provided meant that a fair-minded reasonably informed member of the public could not be satisfied that the administration of justice should require Piper Alderman to be restrained. The jurisdiction should only be exercised in exceptional circumstances. 6. UTi was informed in advance that Piper Alderman intended to act for the consignee and did not express any objection or disquiet. The consent of UTi was clearly implied. Stafford Shepherd is the Director of the Queensland Law Society Ethics and Practice Centre.