Graeme Bruce Howes v The Law Society of The Australian Capital Territory [1998] ACTSC 266 (23 July 1998)

  
  
  
  

  
   

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   GALLOP ACJ, HIGGINS AND CRISPIN JJ

   Legal
Practitioners - discipline - unsatisfactory professional conduct -
documents produced on subpoena in unrelated proceedings in the
Supreme Court -
inspected by person who was a principal of the solicitor's client with
apparent permission of court staff - leave
for inspection not given - copies
later used by solicitor in proceedings in Small Claims Court - solicitor
unaware of any illegality
or impropriety in the inspection or copying.

   Confidentiality attaching to documents produced on subpoena - whether
solicitor
should have realised leave required and permission to inspect given
in error.

   Evidence illegally or improperly obtained by client
- client unaware of
illegality or impropriety - whether subsequent use by solicitor improper -
relevance of the employment of the
person who inspected and copied documents
as solicitor's secretary.

   Legal Practitioners Act 1970

   Director of Public Prosecutions Act 1990

   Evidence Act 1995 (Cwth )

   Supreme Court Rules

   Welfare v Birdon Sands Pty Ltd (1997) 149 ALR 378 per Von Doussa J, at 390

   Keppie v Law Society of the Australian Capital
Territory (1983) 62 ACTR 9

   The Law and Conduct of the Legal Profession of New South Wales , 2 nd Ed,
at 60

  

  

   CANBERRA,
14 July 1998 (hearing), 23 July 1998 (decision)

   #DATE 23:7:1998

   Counsel for the Appellant: Mr G Stretton

   Instructing
Solicitors: Ken Cush & Associates

   Counsel for the Respondent: Mr D C D Harper

   Instructing Solicitors: Abbott Tout Harper
& Blain

  

  

   THE COURT ORDERS THAT:

   1. The appeal is upheld.

   2. The orders of the Professional Conduct Board of
the Law Society of the
Australian Capital Territory are set aside.

   3. The complaint against the appellant is dismissed.

   4.
The respondent is to pay the costs of the appellant in relation to the
inquiry before the Professional Conduct Board and the appeal.

  

  

   GALLOP ACJ, HIGGINS AND CRISPIN JJ

   This is an appeal from a decision of the Professional Conduct Board of the
Law
Society of the ACT (the Board) finding the appellant guilty of
unsatisfactory professional conduct.

   The appellant is a solicitor
who has for some time practised as a partner
in a firm formerly known as Brian Martin and Sons and now known as Howes
Powrie Rowe.
He had acted as a solicitor for G H and K Pools Pty Ltd trading
as The Pool Factory (the company) in proceedings in the Small Claims
Court of
the Australian Capital Territory for the recovery of monies owed to the
company by Mr Ken Pye. The company was controlled
by Mrs Patricia Hopkins and
her husband. Mrs Hopkins was employed by the appellant's firm as his
secretary. Judgment was duly obtained
against Mr Pye but he succeeded in
obtaining an order that he pay the judgment monies by instalments. He made two
payments pursuant
to that order but then defaulted. Mrs Hopkins was obviously
convinced that he had the means to pay the debt and had deceived the
Court as
to his true financial position.

   Early in March 1996 Mrs Hopkins made a telephone call to the registry
section of the
Supreme Court identifying herself as "Trish from Brian Martin
& Sons". She said that she and her husband had judgment against
Mr Pye and
that she had been informed that he had made a claim in the Supreme Court. When
the officer to whom she spoke confirmed
that there were proceedings pending in
the court Mrs Hopkins told her that Mr Pye was trying to avoid paying the
judgment debt
and that she needed to get information to prove that he was
lying. She was told that she could look at the files as they were public
records.

   Two days later she attended at the registry where she was provided with
several files relating to Mr Pye. She inspected
the contents of those files
and took photocopies of certain documents. Upon returning to the office she
prepared a draft affidavit
in support of an application to the Small Claims
Court for revocation of the order enabling Mr Pye to pay the judgment debt by
instalments.
That affidavit contained information which she had obtained from
the court files. The appellant asked her where she had obtained
the
information and she explained that she had taken an early lunch and gone to
the Supreme Court. The appellant asked whether she
had been given the
information at the court and she replied "yes, I spoke to the registry staff
at the court twice this week and
was told I could look at the files".

   On 14 March 1996 the appellant appeared before the Small Claims Court on
behalf of the company
in order to pursue the application. During the course of
the proceedings he relied upon the information and documents which had been
obtained by Mrs Hopkins.

   The documents apparently photocopied by Mrs Hopkins have not been
identified with any precision. However,
it does seem likely that they were
produced on subpoena to the Supreme Court in connection with a personal
injuries action which
had been brought by Mr Pye and was then pending. Leave
for Mrs Hopkins to inspect them had not been granted.

   Order 66 rule 11
of the Supreme Court Rules provides that except with the
leave of the court, a person who is not a party to a matter is not entitled to
inspect, or search the
registry, for certain classes of documents including
documents filed with the Registrar in answer to a subpoena. Furthermore, any
party who is entitled to inspect the documents is bound not to use them for
any ulterior or collateral purpose without leave of the
court. That obligation
plainly precludes revealing their contents to a stranger to the suit for a
purpose unrelated to the litigation:
Welfare v Birdon Sands Pty Ltd (1997) 149
ALR 378 per Von Doussa J, at 390. Compliance with a subpoena involves a
significant invasion
of the privacy of the recipient. That invasion is
justified by the interests of justice only to the extent that it enables a
party
to seek to obtain relevant evidence in the proceedings in relation to
which the subpoena was issued. In the absence of some compelling
reason the
recipient is otherwise entitled to have his or her privacy respected.
Accordingly, confidentiality is maintained in relation
to the documents
produced save to the extent that leave may be granted to particular parties to
inspect them.

   In the present
case the Board found that the appellant could not have
reasonably assumed that the actions of the registry clerk in making the file
available to Mrs Hopkins amounted to leave under Order 66 rule 11 to inspect
and copy documents produced under subpoena. It held
that his action in using
such material without leave of the Supreme Court amounted to unsatisfactory
professional conduct.

   It
is common ground that an appeal of this kind is by way of a re-hearing
de novo: Keppie v Law Society of the Australian Capital Territory
(1983) 62
ACTR 9.

   Section 37 of the Legal Practitioners Act 1970 provides that unsatisfactory
professional conduct includes conduct
"occurring in connection with the
practice of law that falls short of the standard of competence and diligence
that a client is entitled
to expect of a reasonably competent legal
practitioner". This definition seems to have been relied upon by the Board
though there
was no suggestion that the appellant had failed to discharge his
responsibilities to his client with due competence and diligence.
On the
contrary, the respondent's case was that he had pursued his client's interests
overzealously by reliance upon material which
he had not been entitled to use
on its behalf. Nonetheless, the definition is an inclusive one and it seems to
us that the term is
apt to describe conduct which whilst falling short of
professional misconduct nonetheless involves a significant departure from the
standards expected of legal practitioners of good repute.

   Mr Stretton who appeared for the appellant submitted that the complaint
should not have been sustained. He pointed out that the Board had apparently
accepted the appellant's evidence that he did not know
of any impropriety in
the obtaining of the documents. Mrs Hopkins had been given permission to
inspect the court files and the
fact that the documents in question were
produced to her would have suggested that they were available to the public
rather than
held by the court on a confidential basis. There was nothing to
place the appellant on notice that they had been produced in error.
In any
event, not every error of judgment or lack of perspicacity by a legal
practitioner constitutes unsatisfactory professional
conduct. If the appellant
did make an honest mistake or an erroneous assumption that did not justify the
Board's finding. These submissions
are not without cogency.

   It is clear from the affidavit which the appellant swore on 7 March 1996
that he knew that the information
which had been given to him by Mrs Hopkins
had been obtained from documents produced to the Supreme Court under subpoena.
However,
the confidentiality which attaches to documents so produced is
neither absolute nor permanent. Leave may be granted to enable a third
party
to inspect the documents. Once they are admitted into evidence the
confidentiality is lost unless a court otherwise orders.
Accordingly, a mere
statement that documents had been produced under subpoena would not of itself
have conveyed to a competent and
experienced legal practitioner the fact that
those documents necessarily remained subject to the constraints of
confidentiality which
would have attended their initial production. Such a
statement would have been sufficient to place such a solicitor on notice that
the documents had been produced on a confidential basis and that if he or she
wished to gain access to them it would be necessary
to ascertain that such
confidentiality no longer attached to them or alternatively to obtain leave of
the court. In the present case,
however, Mrs Hopkins had informed the
appellant that she had spoken to staff at the Supreme Court registry and had
been told that
she could look at the files which apparently included the
material in question. The appellant apparently assumed that because she
had
been given permission to look at and copy the documents there was no
impediment to using them in support of the company's application.

   It now appears that the unidentified member of the registry staff who had
given Mrs Hopkins access to the relevant documents
should not have done
so and that she or he had lacked the authority to grant leave to inspect
documents produced on subpoena. Whilst
the evidence on this aspect is somewhat
unclear, it also seems unlikely that the requirement for confidentiality had
been lost as
a result of the documents being tendered in evidence prior to her
inspection. However, this information was not available to the
appellant.

   Mr Harper, who appeared for the respondent, submitted that the appellant
should not have drawn any comfort from Mrs
Hopkins' statements because she was
not legally qualified and could not have been expected to be aware of any
restrictions on inspection.
On the other hand, Mr Stretton maintained that the
appellant was entitled to assume that court staff charged with the custody of
the documents should have been aware of any such restrictions.

   The evidence does not reveal that the appellant had any knowledge
of the
proceedings in which the subpoena had been issued. He had been told only that
Mrs Hopkins had attended at the registry and
been given permission to look at
the files. It is clear from his evidence that he did not advert to the
possibility that permission
had been given in error.

   Mr Harper submitted that as a practitioner with experience in conducting
litigation in this court he
should be taken to have been aware that registry
staff were sometimes "slack" in relation to the custody of files. He should
not
therefore have treated any permission given to Mrs Hopkins as an
indication that the documents in question had properly been made
available to
her. Whilst Mr Harper's submission was framed with characteristic tact and
courtesy, it seemed to be based upon the
premise that errors of this nature
were so widespread and notorious that a practitioner's failure to verify the
validity of any such
decision would be sufficient to support a finding of
unprofessional conduct. We do not accept that this is so. The appellant was
entitled to assume that court staff would be well aware of their
responsibility not to make documents produced on subpoena available
to third
parties unless leave for such parties to inspect them had been given or was no
longer required. Of course, there may be
circumstances in which a practitioner
of reasonable competence and diligence would be aware of the likelihood that
documents had
been made available in error and that it would be improper to
use them. In the present case, however, even if the appellant had adverted
to
the possibility that permission to inspect confidential documents might
sometimes be given in error, there was nothing to alert
him to the fact that
such an error had occurred on this occasion.

   It is true, of course, that if a legal practitioner were to
obtain
documents illegally or improperly that conduct might well support a finding of
professional misconduct or unsatisfactory professional
conduct. In those
circumstances it would also be improper to use the material so obtained. There
may also be circumstances in which
the use of material received innocently
would also be improper. For example, it would obviously be improper for a
solicitor to use
confidential documents which he or she knew had been sent to
the firm in error or documents left on the bar table by an opponent
and
inadvertently gathered up with his or her own papers. In such cases, however,
the ethical restriction arises because the circumstances
in which the legal
practitioner received the material are such that it would be unconscionable to
use it.

   Such a restriction
does not arise merely because a legal practitioner is
provided with documents by a client and knows or suspects that they have been
illegally or improperly obtained by the client or someone else. There are some
circumstances in which the nature of the documents,
their ownership or the
manner in which they were obtained impose legal or ethical constraints on the
solicitor. A lawyer would not
be entitled to retain exhibits wrongfully
removed from a court file or property which has obviously been stolen. In this
Territory
prosecution guidelines pursuant to section 12 of the Director of
Public Prosecutions Act 1990 also impose certain obligations on prosecutors
intending to rely upon illegally obtained evidence. However, in the absence of
any
circumstances giving rise to such constraints, a legal practitioner
remains bound to act in accordance with the best interests of
his or her
client and subject to that client's instructions.

   In the present case, the documents were not provided directly to
the
solicitor but to Mrs Hopkins. It is true that Mrs Hopkins was employed by
the appellant's firm and that she referred to
that firm when making the
initial inquiry by telephone. Nonetheless, she made it plain that her inquiry
had been prompted by the
fact that she and her husband had a judgment against
the complainant and it seems clear that she was contacting the court as a
principal
of the company rather than as an employee of the appellant or his
firm. Indeed, the appellant was not aware of the approach to the
registry
until he was presented with a draft affidavit which she had prepared and asked
her how she had obtained the information.
It could not be said that he had
received the material in circumstances which made it unconscionable for him to
rely upon it.

 
 It has long been recognised that evidence which as been illegally or
improperly obtained is prima facie admissible. Evidence so
obtained is not
infrequently tendered in criminal proceedings and when an objection is taken
debate ensues as to whether it should
be excluded in the exercise of the
discretion under sections 135 and/or 137 of the Evidence Act 1995 (Cwth ). A
legal practitioner
is not guilty of unsatisfactory professional conduct merely
because he or she seeks to rely upon evidence which is prima facie admissible.
Indeed, in the present case the complainant, had, in the Small Claims Court
proceedings, objected to the evidence on the grounds
that it had been obtained
illegally. The Magistrate overruled that objection.

   Mr Harper nonetheless argued that even if the course
which the appellant
adopted would otherwise have been permissible he should not have used the
documents because Mrs Hopkins
was an employee of his firm. For reasons
previously given we do not accept that she was either acting or purporting to
act on behalf
of the firm at the time when she acquired the material or that
the appellant or his firm was in any way involved in its acquisition.
In view
of these findings there is no basis for suggesting that the rights of the
company to rely upon the documents should have
been restricted or diminished
merely because one of its principals was employed by its solicitors. The
company was entitled to be
treated by the appellant in the same manner that
any other client of the firm would have been treated in similar circumstances.
The
documents produced to the appellant by Mrs Hopkins constituted
evidence that Mr Pye had lied to the Small Claims Court about
his means in
order to obtain the order which the company sought to set aside. The evidence
was prima facie admissible. In the absence
of any legal or ethical restriction
on the use of that material, it would not have been open to the appellant to
deny his client
the benefit of that evidence even if he had been aware that it
had been obtained improperly. The general principle was succinctly
expressed
by R C Teece QC in The Law and Conduct of the Legal Profession of New South
Wales , 2 nd Ed, at 60:

   "Generally . .
. it may be said that a lawyer may and should do for his
client whatever the client could legitimately do for himself if he had the
knowledge and ability to conduct his own case. It is not for the lawyer to
determine the moral or legal merits of the client's case.
Thus if the client
can succeed on a technicality the lawyer may urge him on moral or other
grounds not to rely on it, but unless
the client agrees to waive it he must
take the technical point: if the law maintains the technicality it is not
counsel's business
to legislate privately against his client's legal right."

   Equally, it was not the appellant's business to legislate privately
against
his client's legal right to have potentially important evidence tendered in
support of its application.

   As we have already
observed, neither the appellant nor Mrs Hopkins was
aware of any illegality or impropriety in the obtaining of the relevant
documents.
However, even if he had known that photocopies of the documents had
been obtained contrary to the provisions of Order 66 rule 11
of the Supreme
Court Rules , that knowledge would not of itself have made it improper for him
to use the documents in the manner that he did. Indeed, in the
absence of any
instructions to the contrary, a lawyer who receives illegally or improperly
obtained documents from his client may
be bound to use them on his or her
behalf, unless he has been guilty of complicity in so obtaining them or has
received them in circumstances
in which it would be unconscionable to rely
upon them.

   The facts revealed by the evidence do not reveal any impropriety on the
part of the appellant or justify any finding of unsatisfactory professional
conduct.

   The appeal must be allowed.