The Legal Profession Uniform Law : Dealer Support Services Ltd V Motor Trades Association Of Australia Ltd

1839 Words8 Pages
Intellectual property practitioners face some unique conflict of interest challenges. In Australia, whilst the professions are divided between lawyers and attorneys, the obligations are not very different. Most lawyers in Australia are subject to the new Legal Profession Uniform Law which commenced 1 July 2015, and its accompanying Uniform Rules ("Lawyers Rules"). The conflict rule is extracted in Annexure A hereto. Patent and Trade Marks Attorneys in Australia are subject to the Code of Conduct 2013 ("Attorney Rules") made by the Professional Standards Board under the Patents Act and the Trade Marks Act. The conflicts rules thereunder are extracted in Annexure B hereto. The particular problems unique to IP practitioners I would like…show more content…
Beach J discussed the meaning of Attorney Rules 15 – see [84]. He criticised it as unclear, it seeming to deal only with conflict between duty & interest, not duty & duty. Thus, whilst the duty of loyalty was probably breached, this was not a basis to disqualify the solicitor from acting. This case represents quite a relaxed approach to conflicts. It is in line with cases such as Prince Jefri Bolkiah v KPMG (1999) 1 All ER 517 (HL) and World Medical Manufacturing v Phillips Ormonde & Fitzpatrick [2000] VSC 196 (Gillard J). More traditional approaches have been more strict, not requiring identification of actual confidential information, but merely the chance of misuse, or the appearance of impropriety. See e.g. Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501 (Brooking JA); Village Roadshow v Blake Dawson [2003] VSC 505 (Byrne J); Connell v Pistorino [2009] VSC 289 (Byrne J); and Nettle J in Sent and Primelife Corporation Ltd v John Fairfax Publication Pty Ltd and Hills [2002] VSC 429 (7 October 2002) where Jeff Sher QC was restrained on the basis of a brief 14 years previously he could not even remember! Whilst the liberal view might be the current law, Nettle J is now on the High Court and thus could signal a shift. Where the conflict is direct and specific, there is rarely doubt about whether the practitioner should
Open Document