Legal ethical obligations, misconduct and discovery

4.29 In ALRC Report 89, the ALRC commented that: ‘in almost all studies of litigation, discovery is singled out as the procedure most open to abuse, the most costly and the most in need of court supervision and control’.[29] An overarching concern is that discovery may be used as a tactical tool to exhaust the resources of the other party or encourage settlement.

4.30 As indicated throughout this Consultation Paper, the primary concerns with regard to the discovery process in Australia centre on expense, scale and delay.

4.31 While the ALRC is not aware of any evidence of chronic abuse or misconduct arising in relation to discovery, allegations of misconduct and abuse in the context of discovery concern the following issues: charging unreasonable costs; making unnecessarily broad discovery requests or flooding the other party with voluminous irrelevant documents; withholding relevant documents; and delay.

4.32 These concerns are examined below against the backdrop of legal ethical obligations owed by lawyers to the administration of justice, including to the court, the client, other lawyers and third parties. Potentially, there is a range of other forms of discovery abuse that may occur, encompassing ethically objectionable practices ranging from discourtesy to harassment, however this discussion is illustrative and is not intended to provide an exhaustive overview of the ways in which discovery abuse may conflict with legal ethical obligations.

4.33 The ALRC notes that the challenge in this Inquiry is to disentangle issues arising from perceptions of abuse, from those of valid practice, to assess what should be appropriate responses to actual instances of misconduct.

‘Trolley load litigation’ and defensive legal practice

4.34 On admission to practice, lawyers become officers of the court. Accordingly, lawyers owe an overriding duty to the court which prevails over all other duties, including the duty to the client. The preamble to the Advocacy and Litigation Rules, contained within the Model Rules, relevantly states:

Practitioners, in all their dealings with the courts, whether those dealings involve the obtaining and presentation of evidence [or] the preparation and filing of documents ... should act with competence, honesty and candour. Practitioners should be frank in their responses and disclosures to the court, and diligent in their observance of undertakings which they give to the court or their opponents.[30]

4.35 The Model Rules also incorporate an expression of the general standard of conduct expected of practitioners:

A practitioner must not engage in conduct, whether in the course of practice or otherwise, which is:

... calculated, or likely to a material degree, to:

(a) be prejudicial to the administration of justice;

(b) diminish public confidence in the administration of justice...[31]

4.36 Despite this duty to the administration of justice and, in particular, to the court, in initial consultations the ALRC heard concerns about what has been referred to as ‘trolley load litigation’, ‘trial by avalanche’, or ‘defensive legal practice’.[32]

4.37 These practices essentially involve lawyers providing the opponent with vast numbers of documents.[33] Former Chief Justice Black of the Federal Court has observed the need to

avoid having trolley loads of documents being wheeled into court when hardly any of them are likely to be referred to and when every page will add to the cost of the litigation.[34]

4.38 There are many reasons put forward to explain the phenomenon of trolley load litigation. First, it might be argued that the production of vast numbers of documents is simply a consequence of the exponential growth in documents in the wake of computer technology; secondly, the adversarial nature of the system and attempts by lawyers to do what is seen to be in the best interests of their client; thirdly, an attempt to ‘wear down’ the other party; and finally, where the scope of required discovery is unclear, in order to avoid disciplinary action for professional misconduct if documents are withheld.

Legal rules

4.39 Legislation and court rules increasingly contain an overarching purpose to facilitate the ‘just resolution of disputes’, ‘according to law’ ‘as quickly, inexpensively and efficiently as possible’.[35] While not expressly stated, lawyers applying due diligence to reduce the volume of potentially discoverable documents to those directly relevant to the proceeding is clearly consistent with such purposes. Accordingly, practices such as trolley load litigation may constitute a breach of the duty to conduct proceedings in a way which is consistent with those overarching purposes.[36]

Legal ethical obligations

Duty to the administration of justice and the court

4.40 Practices such as trolley load litigation may be inconsistent with the legal ethical obligations owed by lawyers to the court and the administration of justice. More specifically they raise issues with respect to:

  • the duty of fairness, in particular not to abuse court processes (discussed in more detail in relation to misconduct involving unreasonable expense and delay);

  • the duty to narrow the issues in dispute and identify relevant material and thereby reduce the volume of potentially discoverable documents;[37] and

  • the obligation of lawyers to appraise the case and exercise personal judgment about the existence and relevance of documents in the proceedings.[38]

Duty to the client

4.41 The lawyer’s duty to the client forms another important aspect of the ‘duty matrix’ and arises in the context of the lawyer–client relationship, the basis of which is the ‘retainer’. As a result, the duty to the client arises under general law (in particular contract, torts and equity) as well as relevant legislation and professional rules.

4.42 For example, while the retainer is contractual in nature, the relationship is also fiduciary and, accordingly, lawyers owe a duty of care to exercise reasonable competency and skill in the conduct of the client’s matter.[39]

4.43 In a general sense, the Model Rules articulate a lawyer’s duty to the client. The preamble to the ‘Relations with Clients’ section states:

Practitioners should serve their clients competently and diligently. They should be acutely aware of the fiduciary nature of their relationship with their clients, and always deal with their clients fairly, free of the influence of any interest which may conflict with a client's best interests ... Practitioners should not, in the service of their clients, engage in, or assist, conduct that is calculated to defeat the ends of justice or is otherwise in breach of the law.[40]

4.44 More specifically, the Model Rules provide that a practitioner must

seek to assist the client to understand the issues in the case and the client’s possible rights and obligations, if the practitioner is instructed to give advice on any such matter, sufficiently to permit the client to give proper instructions.[41]

4.45 Accordingly, a lawyer’s duty to the client encompasses a duty to advise, that is subject to the overriding duty to the court. The duty requires that, for example, lawyers advise their clients about the purposes of discovery, their rights and obligations with respect to the discovery process, and which documents are relevant for the purposes of discovery.

4.46 Judicial discussion of the duty has emphasised the obligation to take positive steps to ensure that clients are aware of the duty of discovery[42] and to take responsibility for ensuring that clients comply with those duties. While not specifically articulated in the professional rules, other cases have also suggested that lawyers have an obligation to work with clients to understand and interrogate document management systems in order to satisfy discovery search obligations.[43]

4.47 In the preceding chapter, the ALRC proposed greater judicial control over the discovery process, including in relation to the scope of discoverable documents. Even where the scope of discovery is more strictly controlled, however, the role of lawyers and parties to litigation in making decisions about how much to disclose, and at what stage, remains of central importance in attempts to address the expense, scale and delay currently associated with discovery.

4.48 For example, lawyers and their clients still face decisions about which documents to discover where they are aware of documents that fall within the scope of a request or order but that are not substantially relevant to the issues in dispute and where disclosure will only burden their opponent with the task of vetting useless material.

Question 4–1 In practice, how do lawyers make decisions about whether to discover a document which falls within the scope of a discovery request or order, but that is not substantially relevant to the issues in dispute?

Withholding documents—misleading conduct

4.49 The duty to act with candour, including not to mislead the court, is articulated in legislation and professional rules, and reflects the position at common law. The duty—both proscriptive and prescriptive—is a central obligation owed by lawyers and necessarily has general application to the conduct of matters by lawyers.

4.50 However, in the context of discovery it also has application to the extent that in some instances, parties do not provide adequate discovery through failing to disclose the existence of relevant documents, or by destroying documents.

4.51 Under professional rules, lawyers must not knowingly make—either in oral or written submissions—‘a misleading statement to a court’, ‘a false statement to the opponent in relation to the case’, or ‘deceive or knowingly or recklessly mislead the court’; and they have an obligation to correct any misleading statements.[44]

4.52 This duty encompasses an obligation not to mislead the court with respect to the facts of the case or to misinterpret the law, to be aware of the applicable rules and procedure as well as to draw the court’s attention to authorities which support or act against their client’s case.[45]

4.53 The Model Rules incorporate an expression of the general standard of conduct expected of practitioners, providing that ‘a practitioner must not engage in conduct, whether in the course of practice or otherwise, which is ... dishonest’.[46]

4.54 Specific legislative articulations of the duty of candour are broad, often included within the scope of overarching obligations. For example, the Civil Procedure Act 2010 (Vic) contains overarching obligations including to act honestly.[47]

4.55 In the context of discovery, such an obligation is likely to arise most frequently where lawyers and their clients are making decisions about which documents falls within the terms of a discovery request or order, particularly where those decisions lead to a failure to discover relevant documents.

4.56 Such decisions raise a dilemma which lawyers often need to consider, that is where their obligation to their client and the duty to the court may come into conflict.

Question 4–2 In practice, how do lawyers make decisions about whether to discover relevant documents that may potentially fall outside the scope of a discovery request or order?

Delay

4.57 As outlined above, there is increasing legislative articulation of the duty owed by lawyers to facilitate the just, quick, efficient and inexpensive resolution of proceedings.[48] In many respects, these legislative articulations reflect judicial criticism of practitioner conduct causing unreasonable expense or delay. For example, in White Industries (Qld) Pty Ltd v Flower & Hart, Goldberg J of the Federal Court made the following comments:

The time has passed when obstructionist and delaying tactics on the part of parties to proceedings in the court can be countenanced by the court ... It is not proper ... to adopt a positive or assertive obstructionist or delaying strategy which is not in the interests of justice and inhibits the court from achieving an expeditious and timely resolution of a dispute. Court resources are finite and so are the resources of most litigants and the court should not countenance a deliberate strategy of obstruction and delay. If a party instructs its legal advisers to adopt such a strategy the legal adviser should inform the party that it is not proper to do so and if the party insists, then the legal adviser should withdraw from acting for that party.[49]

4.58 With respect to delay, the Model Rules provide that:

A practitioner will not have breached the practitioner's duty to the client ... simply by choosing ... to exercise the forensic judgments called for during the case so as to ... present the client’s case as quickly and simply as may be consistent with its robust advancement.[50]

4.59 The Draft National Laws impose an obligation on law practices to ‘act reasonably to avoid unnecessary delay’ where it results in increased legal costs.[51]

4.60 Under the National Barristers’ Rules, barristers are required to complete work in sufficient time in order to comply with orders, directions, rules or practice notes of the court.[52]

4.61 In Victoria, Western Australia and Tasmania, the professional rules make specific reference to the duty of practitioners to use their best endeavours to ‘complete legal work as soon as reasonably possible’,[53] to ‘avoid unnecessary expense and waste of the court’s time’[54] and ‘complete a client’s business within a reasonable time’.[55]

4.62 In NSW, both the Professional Conduct and Practice Rules and the Barristers’ Rules require lawyers to complete work in sufficient time in order to comply with court rules and orders.[56]

4.63 The Civil Procedure Act 2010 (Vic) contains overarching obligations, including the specific obligation to ‘disclose the existence of documents which the person reasonably considers are critical to the proceedings, at the earliest possible time after becoming aware of their existence’.[57]

4.64 Delay may arise in part as a result of other forms of alleged discovery abuse, for example, where trolley load litigation delays proceedings while parties examine large volumes of discovered documents. However, delay itself may also constitute a form of discovery abuse that contravenes lawyers’ legal ethical obligations.

4.65 Commentators and stakeholders have indicated that the primary causes and means of delay in the context of discovery in Australia include:

  • the failure to disclose the existence of documents at the earliest possible time;

  • delay in responding to requests or orders for discovery;

  • delay arising as a result of parties questioning the scope of discovery requests or orders; and

  • other forms of satellite litigation about matters such as the assertion of legal professional privilege over documents.[58]

4.66 Delay is an area in which there is considerable overlap in regulation between legal and ethical rules. For example, under legal rules there is a duty to complete work in sufficient time to comply with court timetables and to act consistently with the overarching purpose of specific legislation. Accordingly, where the conduct of lawyers or other parties unduly delays the discovery process or the progress of litigation more broadly, such conduct is in breach of legal rules and lawyers may be subject to personal costs orders, an enforcement mechanism discussed later in this chapter.[59]

Question 4–3 Is discovery used as a delaying strategy in litigation before federal courts? If so, how and to what extent?

Costs

4.67 The Terms of Reference note the ‘high and often disproportionate cost of discovery’. Complaints made to legal service bodies and disciplinary bodies commonly relate, at least in part, to legal costs.

4.68 In the context of discovery, the ALRC has heard that there are two primary forms of cost-related complaint that contribute to the concern that discovery may be used as a ‘profit centre’. These are: using discovery as a tactical tool to increase legal costs and thus exhaust the resources of the other party; and charging excessive costs for work performed, including for work performed at a certain level.

4.69 Chief Justice Spigelman of the NSW Supreme Court has noted that the difficulty with legal costs is that a lawyer ‘does not have a financial incentive’ to complete the legal work as quickly as possible. However, he argues, ‘the control is of course, the practitioner’s sense of professional responsibility’.[60]

4.70 Under legal profession legislation in most jurisdictions, once retained in a matter, lawyers are under various obligations to provide to the client a written disclosure of costs, including an estimate which outlines the possible contingencies that may affect that estimate and which details the way in which costs are calculated.[61]

4.71 Existing legal professional legislation does not require that lawyers charge their clients reasonable fees. In many jurisdictions only where there is no costs agreement or applicable scale of costs are legal costs recoverable according to the ‘fair and reasonable value of the legal services provided’.[62] However, mandatory criteria included for determining what is fair and reasonable only apply to costs assessors making a costs assessment.[63]

4.72 However, under the Draft National Laws, a law practice would be under an obligation not to charge more than fair and reasonable legal costs.[64] Legal costs would be considered fair and reasonable if they:

(a) are reasonably incurred and are reasonable in amount; and

(b) are proportionate in amount to the importance and complexity of the issues involved in a matter, the amount or value involved in a matter, and whether the matter involved a matter of public interest; and

(c) reasonably reflect the level of skill, experience, specialisation and seniority of the lawyers concerned; and

(d) conform to any applicable requirements of this Part, the National Rules and fixed costs legislative provisions.[65]

4.73 The Draft National Laws also impose an obligation on law practices to avoid increased legal costs. Specifically, a ‘law practice must not act in a way that unnecessarily results in increased legal costs payable by a client, and in particular must act reasonably to avoid unnecessary delay resulting in increased legal costs’.[66]

4.74 Generally professional rules do not explicitly require that lawyers charge their clients reasonable fees. However, jurisdictions vary in relation to the obligations owed by lawyers with respect to costs. For example, under the draft professional conduct rules in Western Australia

a practitioner may only charge costs which are no more than is reasonable for the practitioner’s services having regard to the complexity of the matter, the time and skill involved, any scale of costs that might be applicable and any agreement as to costs between the practitioner and the client.[67]

4.75 In Queensland, commentary included in the professional rules states that, in agreeing to act for a client, a lawyer ‘should not take steps or perform work in such a manner as to unnecessarily increase costs to the client’.[68]

4.76 In South Australia, the professional rules provide that in relation to contingency fees:

A practitioner or firm of practitioners shall not charge fees which are unfair or unreasonable or enter into a costs agreement the terms of which are unfair or unreasonable.[69]

4.77 In considering whether the fees or the terms of a cost agreement are unfair or unreasonable there is a range of factors to which regard is had. These include: the nature of the matter; the amount at stake; jurisdiction; the client; and the experience and reputation of the lawyer.[70]

4.78 The overarching obligations of the Civil Procedure Act 2010 (Vic) also include the obligation to ensure that costs are reasonable and proportionate.[71]

4.79 As discussed in Chapter 3, the often high cost of discovery is sometimes attributed to the array of junior solicitors, law clerks and paralegals who may work through a request for discovery of documents. Abuse of discovery through the use of non-legally qualified ‘paralegals to perform tasks which progress the matter which are billed as if they involve the exercise of legal skill’ is alleged.[72]

4.80 Submissions to the VLRC Civil Justice Review, including submissions by the Victorian Bar, suggested that there is a culture in the Australian legal system of leaving no stone unturned, and continually searching for the ‘smoking gun’.[73] However, where such approaches result in gross or excessive overcharging, such conduct may constitute professional misconduct under legal profession legislation. Legislation across jurisdictions provides that professional misconduct includes ‘charging of excessive legal costs in connection with the practice of law’.[74]

4.81 Courts also have jurisdiction to supervise legal costs charged by lawyers to their clients, as well as to supervise the ethical conduct of lawyers in this respect.[75]

4.82 The vexed question is deciding what is undue or excessive with respect to costs. The focus of this Inquiry is on proposing steps which may assist in preventing such questions arising.

Question 4–4 Is discovery used to increase legal costs unnecessarily, either for the profit of law firms, to exhaust the resources of opposing parties, or for any other reason? If so, how, to what extent, and for what reasons?

Other issues

Delegation and outsourcing

4.83 In consultations, stakeholders expressed their concern about the practice of delegating responsibility for reviewing and categorising documents relevant to the discovery process to junior lawyers and paralegals and having more senior lawyers check only a small sample of documents and potentially not providing adequate supervision.

4.84 A similar concern was also raised with respect to the increasing practice of outsourcing this type of discovery work overseas, utilising lower labour costs as a means of reducing the costs of working through discovery requests and retrieving electronic data.

4.85 In consultations, it was suggested that a further issue arising from delegation and outsourcing is the extent to which such practices lead to duplication. Specifically such duplication may arise where a senior lawyer re-does the work completed by a more junior lawyer or paralegal, in part in order to ensure they comply with their legal ethical and professional obligations.

4.86 The ALRC is interested in hearing from stakeholders about the potential impact such practices may have on ensuring that lawyers comply with their legal ethical and professional obligations.

Question 4–5 How does delegation of responsibility for reviewing and categorising documents relevant to the discovery process affect the practice of discovery in litigation before federal courts?

Question 4–6 How does outsourcing discovery overseas affect the practice, including the cost and efficiency, of discovery in litigation before federal courts?

Preservation or destruction of documents

4.87 The case of McCabe v British American Tobacco Australia Services Ltd,[76] which was overturned on appeal in British American Tobacco Australia Services Ltd v Cowell[77] illustrates the tension in practice between appropriate and legitimate destruction of documents in accordance with a document management system, and the deliberate destruction of documents aimed at removing ‘documents from the jurisdiction of the court’.[78] As Professor Peta Spender has commented,

although a good document management policy may involve the destruction of documents, at some point the routine destruction of corporate documents rises to the level of spoliation of evidence. The trick is to determine at what point this convergence takes place.[79]

4.88 In light of the tensions revealed by such litigation, articulations of this duty were introduced in two jurisdictions. In NSW, the Legal Profession Regulations provide that lawyers must not advise clients to destroy, or be a party to the destruction of documents that are of relevance to current or anticipated litigation, contravention of which amounts to professional misconduct. The regulations state:

177 Advice on and handling of documents

(1) An Australian legal practitioner must not give advice to a client to the effect that a document should be destroyed, or should be moved from the place at which it is kept or from the person who has possession or control of it, if the practitioner is aware that:

(a) it is likely that legal proceedings will be commenced in relation to which the document may be required, and

(b) following the advice will result in the document being unavailable or unusable for the purposes of those proceedings.

(2) An Australian legal practitioner must not destroy a document or move it from the place at which it is kept or from the person who has possession or control of it, or aid or abet a person in the destruction of a document or in moving it from the place at which it is kept or from the person who has possession or control of it, if legal practitioner is aware that:

(a) it is likely that legal proceedings will be commenced in relation to which the document may be required, and

(b) the destruction or moving of the document will result in the document being unavailable or unusable for the purposes of those proceedings.[80]

4.89 Following McCabe, the wrongful destruction of documents was inserted as an offence into the Crimes Act 1958 (Vic).[81]

4.90 In the United States (US), the duty to preserve documents of potential relevance to anticipated litigation—particularly in the context of electronically stored information—has led to the development of what is referred to as a ‘legal hold’. Legal holds are implemented by interrupting a company’s ordinary document management system—which, for example, might delete emails after 30 days—to ensure relevant material is preserved.[82] The expectation of US courts is that lawyers should be actively involved in the implementation of a legal hold, including taking ‘affirmative steps’ to ensure the hold is being correctly implemented.[83]

Question 4–7 Are relevant and discoverable documents wrongfully destroyed in anticipation, or in the course, of litigation before federal courts? If so, how, by whom, and to what extent? If this occurs, are the current provisions in New South Wales and Victoria effectively addressing this problem?

4.91 Overall, it is possible to discuss the nature of discovery abuse in a general sense, and to examine some select examples of such abuse. However, the actual nature and extent of discovery abuse in Australia remains unclear. In the course of this Inquiry stakeholders have expressed differing views as to the extent of alleged abuse by lawyers in the context of discovery. In light of this, the ALRC welcomes further submissions on this issue—and particularly about the tension between legitimate document management and inappropriate destruction.

Question 4–8 Is the discovery process deliberately abused by lawyers working in litigation before federal courts? If so, how and to what extent?

[29]Australian Law Reform Commission, Managing Justice: A Review of the Civil Justice System, Report 89 (2000) [6.67].

[30]Law Council of Australia, Model Rules of Professional Conduct and Practice (2002) r 12.

[31]Ibid r 30.1.

[32] The phrase ‘trolley load litigation’ was used by Einstein J of the New South Wales Supreme Court in Michael Wilson and Partners Ltd v Nicholls [2009] NSWSC 669. ‘Defensive legal practice’ was a term used by a stakeholder in consultations.

[33] The focus of this Inquiry is on trolley load litigation that arises as a result of the discovery process, as opposed to arising from, eg, the filing of unnecessary material as exhibits to affidavits.

[34] As cited in Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008), 434.

[35] See, eg, Federal Court of Australia Act 1976 (Cth) s 37M; Family Law Rules 2004 (Cth) rr 1.04, 1.08(1); Civil Procedure Act 2005 (NSW) s 56; Uniform Civil Procedure Rules 1999 (Qld) r 5(1); Civil Procedure Act 2005 (ACT) s 56(1).

[36] See, eg, Federal Court of Australia Act 1976 (Cth) s 37N; Civil Procedure Act 2005 (NSW) s 56.

[37] The obligation is owed under Law Council of Australia, Model Rules of Professional Conduct and Practice (2002) r 13.2.1, as well as by all parties under the Civil Procedure Act 2010 (Vic) ss 23, 34(1). Conversely, only lawyers owe the obligation under: Professional Conduct and Practice Rules 1995 (NSW) r 23-A.15A; New South Wales Barristers’ Rules r 42; Civil Procedure Act 2010 (Vic) ss 34(1), 34(2); Civil Procedure Act 2010 (Vic) s 23.The obligation under the Civil Procedure Act 2010 (Vic) to take ‘reasonable steps’ is discussed in Ch 5.

[38] For an illustrative discussion of a disciplinary proceeding in which a lawyer was disciplined for inadequate discovery, see: M Costello, ‘The Legal Practitioners Disciplinary Tribunal: A Solicitor’s Duty Regarding Discovery’ (1996) 23(10) Brief 26.

[39]Rogers v Whitaker (1992) 175 CLR 479.

[40]Law Council of Australia, Model Rules of Professional Conduct and Practice (2002), 5.

[41]Ibid r 12.2.

[42] See, eg, Rockwell Machine Tool Co Ltd v E P Barrus (Concessionaires) Ltd [1968] All ER 98, 99. See also: M Costello, ‘The Legal Practitioners Disciplinary Tribunal: A Solicitor’s Duty Regarding Discovery’ (1996) 23(10) Brief 26.

[43] This obligation is discussed later in this chapter in relation to document destruction and the duty to preserve documents. See also the seminal case in the US: Qualcomm v Broadcom (Unreported, USDC Cal., 05cv1958, 3 August 2007).

[44] See, eg, Law Council of Australia, Model Rules of Professional Conduct and Practice (2002) rr 14.1, 14.2. See also: Solicitors’ rules—Law Council of Australia, Model Rules of Professional Conduct and Practice (2002) rr 14.1, 14.2; Professional Conduct and Practice Rules 1995 (NSW) rr 23-A.21, 23-A.22; Legal Profession (Solicitors) Rule 2007 (Qld) rr 14.1, 14.2; Rules of Professional Conduct and Practice (SA) rr 14.1, 14.2; Professional Conduct and Practice Rules 2005 (Vic) rr 14.1, 14.2; Rules of Professional Conduct and Practice (NT) r 17.6, 17.7; Legal Profession (Solicitors) Rules (ACT) rr 18.1, 18.2. Barristers’ rules—Australian Bar Association, Legal Profession National Rules: Barristers’ Rules (2010) rr 26, 27; New South Wales Barristers’ Rules rr 21, 22, 51, 52; Barristers Rule 2007 (Qld) rr 23, 24; Barristers’ Conduct Rules 2010 (SA) rr 26, 27, 48, 49; Victorian Bar Practice Rules (Vic) rr 19, 20; Conduct Rules (WA) rr 20, 21; Legal Profession (Barristers) Rules 2008 (ACT) rr 21, 22.

[45]Law Council of Australia, Model Rules of Professional Conduct and Practice (2002), r 14.6. Solicitors’ Rules—Professional Conduct and Practice Rules 1995 (NSW) r 23-A.25; Legal Profession (Solicitors) Rule 2007 (Qld) r 14.6; Rules of Professional Conduct and Practice (SA) r 14.6; Professional Conduct and Practice Rules 2005 (Vic) r 14.5; Legal Profession (Solicitors) Rules (ACT) r 18.6; Rules of Professional Conduct and Practice (NT) r 17.11; Barristers’ Rules—Australian Bar Association, Legal Profession National Rules: Barristers’ Rules (2010) r 31; New South Wales Barristers’ Rules r 25; Barristers Rule 2007 (Qld) r 27; Barristers’ Conduct Rules 2010 (SA) r 31; Victorian Bar Practice Rules (Vic) r 24; Conduct Rules (WA) r 25; Legal Profession (Barristers) Rules 2008 (ACT) r 25. See also Rondel v Worsley [1969] AC 191, 227–228.

[46]Law Council of Australia, Model Rules of Professional Conduct and Practice (2002) r 30.1.

[47]Civil Procedure Act 2010 (Vic) s 17.

[48] See, eg, Federal Court of Australia Act 1976 (Cth) s 37N; Civil Procedure Act 2005 (NSW) s 56. There is a specific obligation to minimise delay under the Civil Procedure Act 2010 (Vic) s 25.

[49]White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169.

[50]Law Council of Australia, Model Rules of Professional Conduct and Practice (2002) r 13.2.2. See also: Law Council of Australia, Legal Profession National Rules: Solicitors’ Rules (2010) r 17.2.2; Australian Bar Association, Legal Profession National Rules: Barristers’ Rules (2010) r 42(b); Professional Conduct and Practice Rules 1995 (NSW) r 23-A.15A(e); New South Wales Barristers’ Rules r 19(b); Legal Profession (Solicitors) Rule 2007 (Qld) r 13.2.2; Barristers Rule 2007 (Qld) r 21(b); Rules of Professional Conduct and Practice (SA) r 13.2.2; Barristers’ Conduct Rules 2010 (SA) r 42(b); Professional Conduct and Practice Rules 2005 (Vic) r 13.2.2; Victorian Bar Practice Rules (Vic) r 17(b); Conduct Rules (WA) r 18(b); Legal Profession (Solicitors) Rules (ACT) r 17.2(b); Legal Profession (Barristers) Rules 2008 (ACT) r 19(b); Rules of Professional Conduct and Practice (NT) r 17.4(b).

[51]National Legal Profession Reform Project, Legal Profession National Law: Consultation Draft (2010) s 4.3.5.

[52]Australian Bar Association, Barristers’ Conduct Rules r 56(a).

[53]Professional Conduct and Practice Rules 2005 (Vic) r 1.2.

[54]Legal Profession Rules 2009 (WA) r 14.4.

[55]Rules of Practice 1994 (Tas) r 10.

[56]Australian Bar Association, Legal Profession National Rules: Barristers’ Rules (2010) r 56(a); Professional Conduct and Practice Rules 1995 (NSW) r 23-A.15(a); New South Wales Barristers’ Rules r 41. This is also a requirement under the Barristers’ Conduct Rules 2010 (SA) r 56.

[57]Civil Procedure Act 2010 (Vic) s 26.

[58] See, eg, G Dal Pont, Lawyers’ Professional Responsibility (4th ed, 2010); Y Ross, Ethics in Law: Lawyers’ Responsibility and Accountability in Australia (5th ed, 2010); Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008); A Lamb and J Littrich, Lawyers in Australia (2007). While lawyers owe legal ethical obligations in relation to the responsible use of privilege this issue is not discussed in this chapter. For discussion of privilege in the specific context of federal investigations, see Australian Law Reform Commission, Privilege in Perspective: Client Legal Privilege in Federal Investigations, Report 107 (2008).

[59] See, eg, White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169., 249 affirmed in Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134.; Supreme Court Rules 1970 (NSW) pt 52, r 66; Supreme Court Act 1970 (NSW) s 76C(1).

[60]J Spigelman, ‘Opening of the Law Term’ (2004) (Speech to the Law Society of New South Wales Opening of the Law Term Dinner, Sydney, 2 February 2004) .

[61] See, eg, Legal Profession Act 2004 (NSW) pt 3.2, s 309; Legal Profession Act 2007 (Qld) pt 3.4, s 308; Legal Profession Act 2004 (Vic) s 3.4.9; Legal Profession Act 2008 (WA) s 260; Legal Profession Act 2006 (ACT) s 269.

[62] See, eg, Legal Profession Act 2004 (NSW); Legal Profession Act 2007 (Qld) s 319(1)(c); Legal Profession Act 2007 (Tas) s 30; Legal Profession Act 2004 (Vic) s 3.4.19; Legal Profession Act 2008 (WA) s 271; Legal Profession Act 2006 (ACT) s 279.

[63] See, eg, Legal Profession Act 2004 (NSW) s 363; Legal Profession Act 2007 (Qld) s 341; Legal Profession Act 2007 (Tas) s 327; Legal Profession Act 2008 (WA) s 301; Legal Profession Act 2006 (ACT) s 300. The inclusion of criteria is in line with a recommendation made in Australian Law Reform Commission, Managing Justice: A Review of the Civil Justice System, Report 89 (2000), Rec 27.

[64]National Legal Profession Reform Project, Legal Profession National Law: Consultation Draft (2010), s 4.3.4.

[65]Ibid, s 4.3.4(2).

[66]Ibid, s 4.3.5.

[67]Draft Professional Conduct Rules 2010 (WA) r 15.4. As noted earlier, Western Australia is revising its professional conduct rules, for the existing rule see: Legal Profession Rules 2009 (WA) r 5.8.

[68]Legal Profession (Solicitors) Rule 2007 (Qld) guidelines to r 2.1.

[69]Rules of Professional Conduct and Practice (SA) r 42.2.

[70]Ibid.

[71]Civil Procedure Act 2010 (Vic) s 24.

[72]B Bartley, ‘Fair Trade? Why We Need to Rethink Time Billing’ (2010) 30(8) Proctor 12. See also Council of the Queensland Law Society v Roche [2004] Qd R 574, in which disciplinary action arose as a result of a solicitor’s gross overcharging, including most notably for 24 minutes spent, and $156 charged, for discussing and wrapping a box of chocolates for a reporting doctor’s secretary, although the case did not arise in a discovery-specific context.

[73]Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008), 435.

[74] See, eg, Legal Profession Act 2004 (NSW) s 498; Legal Profession Act 2007 (Qld) s 420; Legal Profession Act 2007 (Tas) s 422.

[75] See, eg, Judiciary Act 1903 (Cth) s 26; High Court Rules 2004 (Cth) O 71, r 1; Federal Court of Australia Act 1976 (Cth) s 43.

[76]McCabe v British American Tobacco Australia Service Ltd [2002] VSC 73.

[77]British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524. The Victorian Court of Appeal found that ‘there was no evidence to justify the finding that, in giving advice as requested [the lawyers involved] “devised a strategy” by which the defendant might destroy damaging documents while pretending to innocent intention’: British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524, [98].

[78]A Lamb and J Littrich, Lawyers in Australia (2007), 260.

[79]P Spender, ‘McCabe: Unresolved Questions about Truth and Justice’ (2004) 12 Torts Law Journal 1, 10.

[80]Legal Profession Regulations 2005 (NSW) reg 177(1), (2).

[81]Crimes Act 1958 (Vic) pt I, div 5.

[82] Legal holds have developed through the common law. For a key articulation see: The Sedona Conference, ‘Commentary on Legal Holds: The Trigger & The Process’ (2010) (11) Sedona Conference Journal 265, 277, 282–283, 286.

[83]Zubulake v UBS Warburg 229 FRD 422 (SDNY, 2004).