COVID REPEATS 8: “NEVER WRITE ANYTHING DOWN THAT YOU WOULDN’T WANT READ OUT IN OPEN COURT”
I am repeating this because it is important. One rule that every lawyer should learn is that if you write, type, email or text anything you live with the risk that it could end up being read out in court. There are plenty of examples of emails, attendance notes and texts getting lawyers into trouble, sometimes serious trouble. Never assume anything is “private”. One day your client, the court, or your disciplinary body, may read it and not share your sense of humour.
“CHURN THAT BILL,BABY”
The e-mails in a report by the ABA Journal in relation to a dispute with DLA Piper must have been written by people who believed their communications stood no chance of seeing the light of day.
“Now Vince has random people working full time on random research projects in standard ‘churn that bill, baby!’ mode,” wrote Thomson. “That bill shall know no limits.”
This was explained by the firms “the emails were in fact an offensive and inexcusable effort at humor, but in no way reflect actual excessive billing.” Either way it is hardly a welcome document in a case that was a dispute about over-billing.
E-MAILS READ OUT IN COURT: “I SPEND MOST OF MY DAYS BULL****ING PEOPLE”
Few lawyers think that their e-mails could be read out in court, particularly in cases where they are the defendants. This is what happened to the defendants in the trial of Dewey & LeBoeuf partners.
“—Responded this way to an email congratulating him on a refinanced debt: “No problem. I spend most days bulls—ing people.”
—Gave this advice: “Do what I do. Work out a lot and do drugs.”
—Responded this way to an email urging partners to collect money from clients: “If any of them call me, I will kill them.””
E-MAILS THAT JUDGES GET HOLD OF (BECAUSE IT WAS SENT DIRECTLY TO THEM BY THE SENDER)
Lady (Legal) Writer reported on embarrassing e-mails in Indiana
“…a Nebraska lawyer accidentally copied a Nebraska Supreme Court justice on an email about a case that had just been heard by that court. The lawyer (who was not involved in the case) sent the email to two attorneys involved in the case to congratulate them on their oral arguments in the case and the way they “dealt with some ill-conceived and uninformed questions.” Unfortunately for the lawyer, he accidentally copied twenty-four other people on the email, including the chief justice.”
In another case a lawyer was suspended for a year.
ATTENDANCE NOTES IN LITIGATION
There are examples of lawyers in the UK being subject to disciplinary action for the use of colourful words and phrases in emails. Similar problems can come from attendance notes. Never assume that your attendance notes will remain privileged. There is a risk that, one day, they may be considered in open court.
THOMPSON -v- ARNOLD
In Thompson -v- Arnold  EWHC 1875 (QB) the defendant applied to strike out a Fatal Accident Act action on the grounds that a personal injury action had been compromised in the deceased’s lifetime. The defendant argued (successfully) that this was an abuse of process. The claimant’s solicitors had believed that proceedings could be issued twice and was planning to issue again after death. The defendant settled the first action knowing a subsequent action would be an abuse.
Both sides waived privilege in the application to strike out. This meant that the judge could see:
A “hard nosed” memo from the defendant.
“By contrast, Mr Bonser (who was also called) was eager to take full advantage of any mistake made by opponents in litigation. His approach was hard-nosed and ruthless. He sought, through the available litigation process, to achieve a settlement of the claim at the lowest possible level for the benefit of his employer, the MPS, and had no scruples about taking full advantage of the claimant’s mistake to help achieve this. In a memo of 24thNovember he told the case supervisor, his superior at the MPS, that there appeared to be an opportunity to settle the claim on the basis of a claim for Mrs Thompson herself, and not her estate. In the action itself, a claim for lost years had not been pleaded. Without it, he valued the action at £80,000, but wished to pay in £10,000 more to take account of the lost years claim – “.. in order to make the bait more enticing for the claimant.” (He pointed out that if the claim became a fatal accident one, it could worth as much as £150,000). In evidence he regretted having used the expression “making the bait more enticing”, but it was apparent to me that the reason for his regret was nothing to do with the substance of the sentiment he expressed, but everything to do with its appearance: it seemed to him to sound very callous and hard-hearted. His intention was to improve the payment-in to a level where it was more likely the case would settle, and the claimant, having put herself into the jaws of a trap by her own actions, would find the trap closed upon her.”
A deliberate “talking up of the claim” by the claimant’s solicitor.
Despite the fact that counsel had advised that the payment in was acceptable, Miss Scates promptly told Miss Woodwark in the telephone conference on the 16 December that she could not advise her clients to accept it. This is open to the comment that it was misleading. The claimant in the present action alleges that the conduct of the defendant deliberately misled the claimant; the defendant maintains that if the claimant establishes the four requirements set out in Thomas Bates (see paragraph 14 above) I should not exercise my discretion because the claimant cannot seek equitable relief with “dirty hands”. It will emerge that in my view this particular comment, thrown away though it might have been with a view to encouraging a higher settlement figure, was in fact misleading, whereas the conduct of the defendant, through Miss Woodwark, was not.
INTERNAL DOCUMENTS LEADING TO SERIOUS PROBLEMS
Boreh -v- Republic of Djibouti  EWHC 769 (Comm)
The judgment of Mr Justice Flaux in the Boreh case makes illuminating reading, particularly those parts that deal with internal documents.
Before considering the background to the proceedings and setting out my detailed findings about the events with which this application is primarily concerned, I should just say something about the materials before the court. Following the order which I made at the hearing on 13 November 2014 and the subsequent directions hearing on 22 January 2015, Djibouti has waived privilege, solely for the purpose of the proper determination of this application, in a substantial number of documents passing between it and its legal advisers and in internal communications between those legal advisers. Inevitably there has not been a complete waiver of privilege and there are some documents in relation to which Djibouti was not prepared to waive privilege. That is their legal entitlement and prerogative and the court must be careful not to draw adverse inferences merely from the fact that privilege has been claimed and not waived.
It is also important to have in mind that one consequence of the waiver of privilege which has taken place is that the court has seen many of the internal discussions between the members of the legal team which no-one would have thought would ever be disclosed to the court or to the defendant. I have in mind in considering those communications, particularly where intemperate or ill-advised language is used, that it would be wrong to be over-critical of what was said when it was never intended that it would be disclosed.
The disclosure given included memos, internal notes and communications passing between solicitors and leading counsel. However the e-mails; notes and memorandums are noted, in the judgment, make excruciating reading. So for instance an e-mail where a solicitor had suggested that they go through the files to find out how the court had been misled.
“Mr Gray’s response, minutes later was as follows:
“This is a waste of time. Please do not do that.
All you are likely to find is that on date X we realised the error, addressed it and moved on. Is that something you think is appropriate to admit to the court? Would you like me to publicly apportion blame on other lawyers? All you are doing is falling into their trap. And it would not end there.
The fact is we were not alive to it at the hearing, we did not mean to mislead the court and we are addressing it that way.”
Mr Gray really had no proper explanation for this disgraceful email in cross-examination. He was forced to accept that Mr Handley was obviously right when he said later that the court should be informed. However, the attempt to suggest that other lawyers were to blame, when he knew that he was the only English solicitor who had sat through the September 2013 hearing knowing the full implications of the misdating issue, was wholly wrong. This email, as Mr Kendrick QC put to Mr Gray, albeit he would not accept the point, was deceiving Mr Handley into thinking that he, Mr Gray, had not known: “we were not alive to it at the hearing” again the words of equivocation, whereas others in the firm had.”
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