Today’s correspondent writes about a review by the NSW RFS into claims of misconduct. Attached to the email sent to me was a broadcast email from the Commissioner that you can see here . My correspondent says:
Recently the NSW RFS announced that they would appoint the law firm of Clayton UTZ to undertake an independent review process relating to previous claims of serious conduct matters. The process will enable members to seek a review of serious matter/s they reported in the past three years, where the member doesn’t believe that the appropriate process was followed, or that the outcome wasn’t appropriate.
I have a couple of Questions
1: Isn’t there a conflict interest here. Dose the RFS use the services of Clayton UTZ in other matters and as such Clayton Utz would not want to Bite the hand that feeds them so to speak in handing down a finding of that the RFS got it wrong.
2:If Clayton UTZ find that the RFS “got it wrong” will the RFS “Put it right”. There doesn’t seem to be a clear and precise statement from the RFS commissioner to that effect.
3: What assurances should a volunteer, who is thinking of using the Clayton Utz option, look for to know they will be given a fair hearing.
I have also obtained a statement outlining the scheme – see .
I don’t see an essential conflict of interest. The mere fact Clayton Utz has acted for the RFS in earlier matters will be irrelevant unless those very matters are the subject of the review. Clayton Utz are not being asked to advocate for the volunteers or argue the volunteers cause to the RFS. If you think that is their role, then you will be disappointed and may think that evidence of a conflict but as I say that’s not their task. Clayton Utz will come to their own view on whether the ‘appropriate process was followed’ or the ‘action taken / penalty imposed was appropriate’. They may agree with the volunteer’s claim; they may not but unless you think they’re dishonest I cannot see any reason to think that would be compromised by having acted for the RFS in other matters, or that the RFS expects them to find every argument to say that there has been no wrongdoing.
People go to lawyers because they want independent advice, they want the lawyer’s opinion on the rights and wrongs of the situation. . Inquiring into matters and perhaps finding evidence of wrongdoing is not ‘biting the hand that feeds them’ if the RFS want to find that information. If the RFS’ instructions are to conduct a thorough and frank investigation that is because the RFS thinks it is in their interest to find that. Clayton Utz would not be acting contrary to the RFS interests to do that which the RFS are asking them to do.
That does not mean that there could be no conflict of interest. There might be a conflict if a matter that Clayton Utz has have previously advised the RFS about is the subject of the review and they hold privileged information that contradicts what they are told in the review. There would then be a conflict if they could not apply use that information in their review. Equally there may be a conflict if for example, they gave advice that was acted upon, and they were in effect being asked to assess their own advice. So a conflict may arise, sure it is not axiomatic. There may be a conflict if the volunteers were the client, but they are not.
As for question 2 of course I cannot say what the RFS will do with any findings.
As for question 3 I cannot answer that either. One has to remember that a fair hearing does not always lead to a desired result. A volunteer may get a fair hearing but the review may still find that the proper process was followed and appropriate outcome delivered. If volunteers (or anyone) want an assurance that their claims and their interpretation of facts, rules and motivations will be accepted then of course they cannot get that. The best they can get, and be offered, is an impartial, independent review. If the current assurances from the Commissioner that this is what Clayton Utz is being asked to do are not sufficient, then I’m not sure what will be.
Conclusion
In summary I do think there may be a conflict if Clayton Utz have previously advised on a matter that is subject to the review, as then their own advice is being called into question. Equally there may be a conflict if they hold confidential information relevant to the review where that was obtained at an earlier time, but they are by terms of their retainer not now allowed to consider that information in the review. But I do not think there is a conflict just because Clayton Utz have previously acted on behalf of the RFS.
Australian Emergency Law 
I recall your earlier blog on this matter which, unfortunately, had to be removed.
With respect, although it might be so that there is no conflict of interest, as a professional myself, this appointment does not pass the sniff test. Not only must a professional BE without conflict, they must also APPEAR to be without conflict.
Yes, it is likely that the people conducting the review will not be those who have provided advice in the past but, well, it’s not a good look – it is still the same firm of lawyers and having partner 1 publicly having to review the outcome of a case that was dealt with by partner 2 does not look good.
Further, in the extreme case of there being an issue, all partners in a partnership become responsible for any liabilities that might arise – can we seriously expect partner 1 to sign off on something damning partner 2 if it might then following that partner 1 then becomes at least partly responsible for any liability which might arise? Slim but not impossible.
It is a bad look and I’m sure that the Court of Public Opinion will roll their eyes at any result stating that there is “nothing to see here”, even if that is very genuinely the correct outcome.
As I said in my post, I do think there would be a conflict if Clayton Utz is asked to review a decision where they have previously given advice.
Hi Michael, Thanks very much for these blogs they are both a wealth of knowledge and very interesting. Whats the best way to contact you regarding a matter that I’d like to have a blog written about.
the best way to ask a question is by email to michael.eburn@anu.edu.au.