"I plead the fifth"
A partnership dispute in Clayton Utz from 2005 has developed into something that would be worthy of an entire television series. Allegations of rogue police and improper loans, all in the middle of Collins Street.
Ten years ago, Clayton Utz expelled one of its partners, Chris Dale. The CEO of Clayton Utz prepared a memorandum to the other partners concluding that Mr Dale had engaged in criminal conduct and the partners duly expelled him.
The allegedly criminal conduct included unlawfully obtaining information from Victoria police by having unauthorised searches made of his opponent, and, knowing that the information was unlawfully obtained, using ‘rogue’ police officers in Victoria and New South Wales to intimidate his opponent into agreeing to a settlement with his client. The memo also alleged that Mr Dale had accepted $180,000 from his client as a loan, when such conduct was not permitted by the Professional Conduct Rules.
Mr Dale has brought a proceeding alleging that his expulsion was a breach of the partnership agreement. However, he now has to defend the most serious of allegations.
In any civil proceeding, a witness has the right not to answer a question if it might incriminate him in a later criminal trial. So Mr Dale is stuck between a rock and a small room with a guard, where anything that he says in contradiction of the CEO’s memorandum may be used later by the police.
As one would expect from a partner of Clutz, Mr Dale has found a way around the problem (for now at least). Mr Dale has alleged that due process was not followed for his termination. He does not allege that the allegations against him were untrue. If he ever alleges that the allegations were untrue, he would then have to prove his case. He would no longer be entitled to rely upon his privilege against self incrimination, and would have to answer questions in cross examination that may incriminate him.
The case has been remitted for trial, which may take place in a year or two. Justice moves slowly in big litigation like this.
To read more about this case, go here.