In reviewing the matter of Armstrong v ASADA (Armstrong) I have identified the following ethical issues in light of the Australian Solicitors Conduct Rules (ASCR), any relevant legislation and the common law. I have addressed these issues for your consideration in the order they appear in the ASCR.
1. Rule 3, ASCR – Paramount Duty to the Court and the Administration of Justice
A solicitor’s duty to the court and the administration of justice will prevail against all others and was covered extensively in LSC v Winning. In contrast to Winning, this issue relates to proceedings brought in the Australian Sports Tribunal (AST), which falls within the definition of ‘Court’ as defined in the Glossary of the ASCR. In Armstrong charges have been laid, thus moving the matter into the jurisdiction of the court. Where the matter falls within the jurisdiction of the court the administration of justice will prevail over any other duty and must be considered above all else.
As a further issue, the conflict of The Eagles funding the client’s legal position should be considered and care taken in reviewing our costs disclosure and written retainer to assess potential issues.
Whilst it is stated that the team wish to presently fight the charge, they have stated that they are also keen to keep the matter out of the media. Should the club’s coach, Elizabeth, be implicated there may be broad implications for the club and other players that is likely to expose the club to significant media attention and may heighten conflict issues.
Rule 4, Other Fundamental Ethical Duties, Rule 5, Dishonest and Disreputable, & Rule 7 Conduct & Communication of Advice
Acting in the client’s best interests is a fundamental aspect of being a legal advocate, however this is tempered by a requirement to be honest, courteous and competent in the course of legal practice, avoiding compromise to integrity whilst maintaining professional independence. A solicitor must not engage in conduct that is likely, to a material degree, prejudice the administration of justice (or diminish the public confidence in). Given the high profile nature of the case the actions of the solicitors will be under increased public scrutiny as seen in McCabe v British American Tobacco (in Armstrong the phone call received by Richard likely becomes relevant information).
The issue of the phone call received by Richard from ‘Penny’ should be considered and how non-disclosure might be viewed in light of professional independence given the club is paying for the client’s legal expenses. It might be argued that such information was withheld with the intention of protecting the club’s image over supporting the client. Further, a lawyers duty of care requires that they reveal to the client all material information coming into their possession relating to the client’s affairs. A lawyer cannot act for a client and at the same time withhold relevant knowledge in their possession regarding the subject matter at play. While the duty of disclosure applies specifically to Richard (being the recipient of the information), now that we are aware of the conversation, ethical concerns inadvertently exist for all of us.
Non-disclosure of the phone call could also be viewed negatively by Natalie leading to a potential breach of duty allegation for compromised independence, failure to act in the client’s best interests and a failure to assist the client make informed choices. Ultimately it could be argued that a failure to disclose the phone call could be conduct that prejudiced the administration of Justice
2. Rule 9, Confidentiality & Rule 11, Conflicts Concerning Current Clients
A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement. Two potential confidentiality issues arise. Firstly, Richard has accessed the client’s Facebook page under what auspice we are unsure. Before disclosing any information the client’s consent should be obtained.
Secondly, whilst ‘Penny’ does not fall under the definition of ‘Client’ or ‘Engagement’ in the ASCR, consideration should be given to the possibility that she may wish to become a client in the future.
If Richard discloses the phone call with ‘Penny’ in order to support our client there may be considerable issues acting for ‘Penny’ given that a likely conflict will exist between the parties, particularly if one client wishes to challenge the charge and another wishes to accept the charge.
In such a case the parties must provide informed consent and the duty of disclosure must not be placed in jeopardy. Serious consideration should be given to whether or not the firm should accept ‘Penny’ as a client should that eventuality arise.
Rule 12 – Conflict Concerning a Solicitor’s Own Interests
Another important aspect to consider is the risk of the solicitors’ interests being prioritised over those of the client.
It could be perceived that Richard’s decision not to disclose the information delivered by Penny is an attempt to avoid having to potentially become a material witness in the matter. Such conduct could be in contravention of Rule 12. The exceptions listed in Rule 12 are not applicable to Richards’ position. In the likely event that Richard is required to give evidence material to the issue upon disclosure of Penny’s conversation, Rule 27 could apply and potentially forbids Richard from advocating for Natalie – undoubtedly adverse to Richard’s interests.
Any decision made not to disclose the information revealed by “Penny” draws further ethical concerns – disclosing such information would undoubtedly lengthen the entire process, resulting in a significant increase in work load and complexity. While a speedy resolution is ideal, withholding significant information which would benefit the client could be perceived to be in the interests of Richard or Bridget, potentially at a detriment to the client.
Further, it is of critical importance that the clients’ interest, not an individual desire for confrontation or hasty resolution, should determine the advice given to Natalie. Bridget evinces a broad moral foundation for her advice – she believes that ASADA has become too punitive and athletes’ are unfairly suffering. Is Bridget’s notions of large-scale unfairness and adversarial advocacy ideology afflicting her objectiveness and infringing on the best interests of the client? Either way, an ethical concern exists in line with Rule 12.
Rule 8 – Client Instructions
Pursuant to Rule 8, the clients’ instructions must be followed so long as they are lawful, proper and competent. The facts illustrate that we are in fact representing Natalia, and that it is normal procedure for the legal fees to be paid by the Eagles. Richard has stated that he has been instructed by Natalie to contest the charges. However, consideration needs to be given to the statement made by Natalie evidencing the existence of external pressures possibly afflicting her instructions – Natalie knows the Eagles want her to contest the charges and that she does not want to let them down.
A key responsibility of ours is to assist in the efficient and effective resolution of the dispute, ensuring consistence with the interests and objectives of Natalie. As such, it is vital that any advice provided that differs from the instructions of the client be immediately discussed with Natalie. Richard’s suggestion to dissuade Natalie from contesting the charges is fraught with ethical risk – WHY?
Rule 21 – Responsible Use of Court Process and Privilege
Upon disclosure of the conversation between Richard and Penny, it is important to adhere to Rule 21. At no point in our advice should we allege to Natalie that the Eagles Coach – Elizabeth – is involved in a material way in her ADRV unless such is reasonably justified by the material information provided by both Penny and Natalie. Rules 21.2.2 and 21.2.3 would not be of concern going forward.
After disclosing the conversation to Natalie, we must then seek her instruction as to whether she wants us to proceed with the allegations against Elizabeth. It is of vital importance that, pursuant to Rule 21.4.2, we advise Natalie to the seriousness of the allegation against Elizabeth and the possible consequences stemming from such, as well as the potential success of the case if such an allegation is not made out. It would appear on the information presently available that the case for contesting the charge pursuant to Article 10.5 of the WADA code is relatively weak without utilisation of Penny’s information and the consequential allegations towards Elizabeth.
In light of the plethora of ethical issues at play, we must re-consult with the client. The conversation between Richard and Penny should most certainly be disclosed – despite such actions potentially forbidding Richard from advocating on Natalie’s behalf. All possible avenues should be presented to Natalie, with our advice leading towards contesting the charges and utilising any evidence available via Penny’s statements. We must ensure that Natalie is informed that, at present, the case is weak, but arguable, and that she is fully aware of the possible consequences of pursuing this avenue of appeal. Such advice is not only in the best interests of our client, but also appeals to the administration of justice – there is enough information presently to point to more sinister circumstances at play.
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