Risk Update

Relationship Risk — Engagement Letter Scoping, Australian Judicial Romantic Conflicts

Why Documenting What You’re Not Retained to Do Can Be Important Too” —

  • “In my experience, too many lawyers appear to be quite comfortable running with an assumption that their client’s understanding of what the scope of representation is aligns with theirs. This is one of the reasons why I suspect trying to convince lawyers to document scope of representation on all new matters is a never-ending task. Getting buy-in on documenting what one has been retained to do is hard enough. Now, I’m going to add to this advice a recommendation that lawyers should also be thinking about documenting what one has not been retained to do. It’s an uphill battle, I know; but it’s a battle worth fighting. Here’s an example of why.”
  • “A nonprofit regularly reaches out to a plaintiff personal injury lawyer on behalf of clients of the nonprofit. After a family member was shot and killed by police, this nonprofit retained the lawyer for the purpose of gathering as much information about the shooting as he could, to include obtaining video footage of the shooting from the police department. The purpose was to provide the nonprofit’s client with information that would help her understand what led to the shooting. While the lawyer worked with the nonprofit’s client, the nonprofit paid his fee. Documentation of the lawyer’s role was minimal, consisting primarily of a few emails with both the nonprofit and its client, none of which properly addressed the issue other than to say he would take care of gathering information.”
  • “…This is when things went off the rails. The nonprofit’s client reached out asking about the video and also raising concerns about what the recent running of the statute of limitations means for her case. Of course, in the lawyer’s mind he never agreed to pursue this claim. He viewed his role to be limited to information gathering. However, the nonprofit’s client appears to see it differently.”
  • “The lawyer’s immediate concern was how his reputation might be damaged when the nonprofit’s client complains to the nonprofit. His fear was referrals might now go elsewhere. And then there’s the possibility of a grievance being filed and/or a malpractice claim, all for the want of proper documentation of his scope of representation.”

Judge’s secret romance triggers courtroom conflict of interest” —

  • “The failure of a Victorian judicial officer to disclose a secret personal relationship with a lawyer has been found to breach basic conflict of interest, but an investigating panel said the conduct is not serious enough to sack them.”
  • “A panel of the Judicial Commission of Victoria (JCV) recommended that the judge not be kicked off the bench, despite their silence on an occasion when a lawyer they were romantically linked to appeared before them in court.”
  • “The panel found the judge’s ‘personal and intimate relationship’ with the lawyer, and subsequent omissions about it during court proceedings, amounted to a conflict of interest. ‘The [judicial officer] failed to use the multiple opportunities when the prospect of an appearance arose to identify and respond to the potential issue. Instead, the officer promoted or condoned further appearances,’ a statement from the JCV said.”
  • “The panel also said that when asked about the relationship and the failure to address the obvious ethical problem, the judge’s response tended to water down the significance of the conflict.”
  • “The judge’s choices reflected poor-decision making, the panel said, and they must to attend at least one counselling session to ‘explore the stressors that contributed’ to this ethics breach.”
  • “This latest JCV finding comes after another similar issue was addressed in the High Court about the relationship between a judge and barrister involved in a family court trail. That case has prompted the Australian Law Reform Commission to undertake a review of the laws on judicial impartiality and bias.”