There but for the grace of God…
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). 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, 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…
 (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!).