BigLaw, Freedom of Speech, Confidentiality and Control

In the public interest.

Always my question to lawyers, judges and those in the legal fraternity is – Do you believe law is about Justice or Winning the case? The choice will determine the level of trust of the people for law.

For me I trust natural lore, I follow the universal scales of justice, as all will rebalance one way or another.

This article speaks about the contempt towards freedom of speech as some believe some voices are more important than others rather than a basic respect that all have a right to express themselves. The question is for whom? Without it we go back to the dark ages, setting our civilisation back prior to the Magna Carta.

Something to contemplate for your children.

BigLaw must support free speech

By Aleks Vickovich|30 July 2018


Recent noises from corporate firms and the bar suggest a worrying contempt for a free press and exchange of ideas, putting them on the wrong side of history.

Given the current levels of public distrust of corporate Australia – evident in the response to the banking royal commission and high protest vote in last weekend’s Super Saturday byelections – you would think politicians would be wary of enacting policies seen to be supporting the big end of town.

The topic of corporate tax cuts for the big four banks and other ASX giants will likely continue to grate with the community as the royal commission continues to do its good work and we head towards a general election sometime in early 2019.

But putting tax reform to one side, the NSW government has picked a fight that should be even more on the nose.

In June, the state’s Attorney-General Mark Speakman released the findings of the government’s review of the Defamation Act, making a number of recommendations for reform and reconsideration of the framework.

The document suggested that the relevant bodies “review the provisions…to determine whether the capacity of corporations to sue for defamation should be amended”.

Allowing large corporate entities to sue for defamation – as opposed to individuals – would result in a significant shift in the status quo and, in Lawyers Weekly’s assessment, a major impediment to free expression.

Perhaps this position is to be expected from large corporations and their lobbying and legal advisers (given it is undoubtedly in their commercial interests and would open up a new tranche of lucrative commercial litigation).

But more worrying is that the NSW Bar Association has also supported this reform recommendation, arguing for the right of corporates to sue for defamation since at least 2011.

Be that as it may, it would also reduce the ability for frank and fearless journalism and free public discourse at a time when diversity of voices in the media landscape is diminishing.

Furthermore, it creates the perception (if not reality) that the legal profession is acting on behalf of societal elites and the commercially powerful instead of regular folks and the public interest.

Of course, not all commercial lawyers support the move. On social media, Allens senior associate Fiona Maconochie described the move as a “dagger to the heart of democracy”.

Hear, hear.

More broadly, this particular debate – and the association’s policy position within it – may be symptomatic of a worrying contempt from BigLaw towards a free and open society.

Herbert Smith Freehills, for example, recently recommended a number of reforms to water down whistleblower protections under the Treasury Laws, arguing that the status quo incentivises “unmeritorious claims being brought”.

The firm’s submission to the public consultation also recommends making it more difficult for whistleblowers to speak to journalists and displays a clear distain for the role of the fourth estate and its commitment to protecting sources.

“The media will always have an inherent vested interest in publishing information in a manner which is sensationalised,” the submission states.

“They will not have any inherent interest in protecting the reputations of those concerned (including the whistleblower) or achieving an effective but non-public rectification of the conduct at the heart of the complaint.”

Somewhat humorously, the submission also argues for the removal of the word “misconduct” from the relevant legislation, arguing the term is “uncertain in its scope and operation”.

I suppose that may come in handy for HSF’s defence of disgraced financial giant AMP in the class actions against it and criminal proceedings emanating from the royal commission.

Then of course, there are the occurrences of bullying that Lawyers Weekly faces on a daily basis – the requests from corporate firms and their spin doctors for us to unpublish stories, delete reader comments or make amendments that would reduce the robustness of debate in the profession.

Often these are accompanied by carefully-crafted (if baseless) legal threats.

To some extent, BigLaw’s cultural attachment to confidentiality and control is understandable, given the nature of the disputes they work on and sensitive commercial information they are privy to. 

Its first responsibility must of course be to clients and the duty of care inherent.

But with populist uprisings underway across the globe (and our own electoral map) and trust in experts and professionals perennially low, perhaps a different approach is warranted.

BigLaw needs to drop its hostility to a free press and exchange of ideas and embrace a culture of honesty and transparency, or risk becoming as reviled as the banks and mining companies it represents. 

Aleks Vickovich is managing editor of Lawyers Weekly.