Folklaw is not sure if the austere surrounds of the Federal Court in Sydney has ever hosted anything like what went on last night.A seminar organised by the Law Society of New South Wales and
Folklaw is not sure if the austere surrounds of the Federal Court in Sydney has ever hosted anything like what went on last night.
A seminar organised by the Law Society of New South Wales and Baker & McKenzie tackled the laudable topic of Ethics and good faith in dispute resolution.
ABC presenter and former lawyer James O'Loghlin was the facilitator, introducing "the story of Suzie", a sordid tale involving drugs, booze, extortion, bad hair, asbestos and fire alarms, to more than 100 gathered lawyers and curious souls who packed into Court Room One at the Sydney Federal Court.
Suzie is a 5 year-old girl at the Old Woolstore Kindergarten pre-school in the "trendy" Alexandria suburb of Sydney, which is run by the XYZ company. Her kindergarten teacher, Patricia, has been fired. She feels duded because her supervisor Allen is a sleazy perve and bully, and seeks a mediation hearing.
Steve Lancken, a member of the National Alternative Dispute Resolution Advisory Council, played the role of the mediator, which was a thankless task.
Patricia's legal counsel, Cymbeline Johnson, normally a solicitor with Foxtel, had to grapple with Patricia's drug and alcohol problem and the fact that on one of the rare times her client was sober, she recorded Allen blackmailing other employees. She wanted $50,000, or she would go to the press. Was it ethical for a principled young lawyer such as Johnson to act for her?
Fortunately, an ethicist was at hand, in the form of Simon Rice, an Associate Professor at the ANU College of Law and co-author of Our common future: the imperative for contextual ethics in a connected world.
After making the good point that a "coke using, drinking, unqualified woman isn't necessarily a bad pre-school worker", he reminded Johnson and everyone present the importance of lawyers in acting in the best interests of the client within an ethical and moral framework .
XYZ had Rashda Rana as its counsel, normally the general counsel at Bovis Lend Lease, with Bakers' partner Andrew Salgo acting as external counsel. They were playing hardball, with Rana stating that Allen might come across as a sleaze bag, but "it is just his hairstyle", and they wanted to "crush" Patricia in mediation, later describing her "drug addled, alcoholic, dreadlocked, nymphomaniac."
Perhaps it was Rana's penchant for good manners, but she revealed that even though she might think that, she would restrain herself from telling the mediator.
Salgo also made the point that if a client loses their cool, nine times out of 10 you would tell them to settle down and admonish them for "acting like a goose", but that if it suits your purposes for your client to lose their rag, you would advise them to "go for it".
Luckily, Justice Lindsay Foster, a judge of the Federal Court, hung around after his day job to be the judge on hand providing rulings on relevant bits of law and generally keeping a clear head. He provided the advice that bad language does not necessarily "cross the line" of bad faith and that "hush money is just another way of saying confidentiality".
However, the most shocking revelation from the learned judge was that "he is human and would not let the matter of technicalities get in the way".
The crowd, those who weren't reading Women's Day and a health magazine as spied by Folklaw, audibly gasped to hear of judges being human.
In the end, Patricia took $10,000 from the mediation, but also received a $1000,000 payment from XYZ under the table and a flight to New Zealand.
Further discussion was had on some more questionable practices by XYZ, including toxins getting through an air conditioning vent at a residential complex owned by XYZ and affecting the health of children at a pre school.
To show that lawyers do have a heart and a moral compass, Salgo said that he would end his relationship with XYZ if asked to represent the company in this matter, if, as was posed, one of his children was best friends with Suzie, who got sick as a result of the toxins at the pre school.