60 - November 2011
Gossiping the do's and don't
I admit that I am a good communicator but to label me a gossip is both hurtful and defamatory. I am a caring person and if I do pass on information it is for the good of the community, even if it turns out to be wrong. Alternatively, it is entertaining tittle tattle. Surely the law is not taking away the basic right of a chat between acquaintances, however distant?
(name and address withheld)
The victims of gossip, understandably often turn out to have no sense of humour about it at all.
If you have gone too far a quick apology, given and accepted, is the best course of action for all parties. The alternative is to wait and see if the victim will sue you for defamation which can be a successful strategy depending on the seriousness of your defamatory statements. Lawyers and probably spouses can help even stubborn people to assess the stupidity of their statements.
You could claim “qualified privilege” in that you acted reasonably not recklessly in making the defamatory statements even if they turned out to be wrong. A court will consider if it was your duty to make the statement e.g. a member of your staff had a terrible secret, or it was in the public interest e.g. your mother in law is an axe murderer. The person you tell must have a need to know e.g. your mother in law’s next door neighbour probably does not need to know about your employee’s secret but may find it useful to know about your mother in law. You must act sensibly and check your source, if it is someone who is unreliable or is as big a gossip as you then it may be best not to pass it on especially if it will have serious consequences e.g. your mother in law’s arrest, detention and trial, even if she is eventually acquitted. You should consider confronting that employee as people often get the wrong end of the stick.
If you were being malicious then you lose this protection even if you were telling the truth. It can still be malice if it was not your intention to injure the victim. The question is did you misuse the information, did you have the right motive in telling?
If all else fails there may be a few gossips on the jury who would empathize with you and quickly decide that you are blameless, but I would not count on it.
(c) Paul Brennan 2011. All rights reserved. Extract from John Fytit’s International Legal Problem Page. For more go to https://www.lawanddisorder.com.au/legaladvicepage.html
Property lawyers and a question too far
Property lawyers are a little like your mother; they wish you to find a home and live happily ever after but delight in pointing out flaws in the one that you have chosen. They are cautious by nature.
One trainee lawyer acting for a purchaser conducted his searches against the office address of the vendor's lawyer. His principal commented that this approach was far too cautious.
During my articles in the UK, it was the usual residential conveyancing practice for the purchasers' lawyer to make written Pre-Contract Enquiries about the property to which the answer usually was "No, but the purchasers should rely on their own enquiries".
I received the following responses to two of my Pre-Contract Enquiries:
Q. Has the house ever been burgled?
A. No, not unless it was the perfect crime.
Q. How often do you inspect the plumbing?
A. At least once per day and more often during the winter.
I didn't find it so funny either, but I have had to put up with quite a lot of this juvenile behaviour over the years, mostly from conveyancing lawyers.
Recently, I asked an audience of about 25 business owners two questions:
Who has experienced legal issues in property transactions?
Was I acting for you at the time?
Five people put their hand up to the first question and none to the second. A small survey but instructive.
Are lawyers really unpopular?
After that, one reason followed another, intermittently. I decided on 101 reasons as I didn’t want to depress the entire legal profession by having 1,001 reasons.
I examined at length why lawyers and the law are still not fulfilling clients’ expectations.
I covered the general failings of some lawyers such as scruffiness and being dull based mainly on the observations of my own wife. I was soon looking back to when I started as a lawyer to explain that young lawyers can be a little bit full of themselves while conceding even the older ones are difficult to live with. I urged young lawyers to be more sensitive especially during the mandatory visit to the cells immediately after a client had received a prison sentence.
Complaints ranged from lawyers being too busy and ignoring clients to lawyers not being aggressive enough or even that they irritatingly tried to talk clients out of suing people rather than just getting on with it. But, basically it boiled down to the same 12 issues which have dogged lawyers for centuries, The Twelve.
By 2009 I had a strong suspicion that it was all the judges fault , although, I felt that legal receptionists needed to bear some, if not most of the responsibility for the supposed unpopularity of the profession.
I became convinced that many legal issues could have been avoided if clients could be directed away from situations which have so often have adverse legal and social consequences, such as:
I suggested new forms of trial and innovative legal practice business models. I explained that procrastination by a lawyer was not just an inconvenience to their clients but to the other lawyer in the transaction.
In a desperate effort to try and keep the readers’ attention, I turned to sex - obscenity, disgusting filth and my limited experience defending alleged Chinese brothel keepers in a tastefully written piece entitled “The Copper with the Golden Chopper”.
Also, I managed, as most lawyers do, to squeeze in a few of my own small successes such as my first appearance at the Old Bailey, my dispute with a lady over a car parking space and my fight with my own neighbour. I took the opportunity to defend my own record, yes one client did fall asleep when I was pleading for his liberty, but only once.
I came to five conclusions:
We lawyers are far more popular than we thought and it may be safe to encourage our own children to become lawyers, after all.
ABC Radio Coast FM90.3
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Disclaimer: The content of the Law & Disorder eZine is to give you legal basics and in some instances included unashamedly to try and make you laugh. In law it is sometimes difficult to work out what is serious and what is just for fun. Therefore, if you plan to do anything legal, rely on your own lawyer’s advice or instruct me to look at the particular facts of your case. Not only will I deny responsibility for the legal content but also for some of the jokes.