LARGE firm lawyers will have to pull out some of their old criminal procedure books and start brushing up on how they’re going to cope when the criminalisation of cartel activity comes into place in the next year, Graeme Samuel, chairman of the ACCC says.
“There is going to be significant adjustment and a significant learning experience for lawyers, as there is for the ACCC, once criminalisation of cartel activity comes into place,” he said.
Samuel says lawyers will have to deal with the ACCC as well as the director of public prosecutions, and will be dealing with juries as well as judges in cases.
Lawyers, particularly in large firms dealing with large business clients, will have to “pull out some of their old criminal procedure books from law school days and start brushing up on some of those processes”, he said.
Lawyers will also have to overhaul the way they present their cases in court, Samuel said.
“There has been a lot of debate by some academic lawyers about the intricacies of certain words in certain sub paragraphs of certain sections of the new laws.”
But lawyers have to remember that they will be dealing with “12 good men and women who are going to want to try and make a determination about whether someone is guilty or not guilty”. He said there is going to have to be a major adjustment in their thinking from the way they conduct civil trials, civil investigations and civil defences.
Firms will have to consider using different lawyers on these cases, or encourage their counsel to brush up on their style of presenting, he said.
“The lawyer who is used to arguing fine points of statutory interpretation will be supplanted by the lawyer who is trying to convince 12 lay people of the rights or wrongs of a matter, and that will be both the prosecution and the defense.”
Large law firms, more than their small firm counterparts, will be impacted by the changes, Samuel said. “In hard-core cartel activity, most of the activity there would be done by bigger companies because that’s the nature of hard core cartels. They involve larger businesses that would normally engage some of the bigger law firms in Sydney and Melbourne.”
The Rudd Government released its final exposure draft legislation to introduce criminal sanctions for serious cartel conduct in October last year.
The New Lawyer will be speaking to an Allens Arthur Robinson partner on how it will impact lawyers’ work this morning. Her comments will be published online.