The Australian is reporting that a complaint has been received about three Clayton Utz lawyers involved in the Sharman License Holdings trial, acting for the developer of the popular KaZaa file-sharing software. According to the complaint, the lawyers are alleged to have influenced the testimony of an expert witness, Professor Keith Ross.

Professor Ross was required to give evidence on the extent to which Sharman License Holdings maintained control over the content on the KaZaa network. Suggesting that it had less control would advantage the defendant in two ways: first, by distancing the conduct of KaZaa’s users from the developer and distributor of the software; and second, by suggesting that Sharman could not be seen as authorising or encouraging users to transfer copyrighted materials since they were incapable of filtering them:

NSW Attorney-General Bob Debus yesterday confirmed that the state’s Legal Services Commissioner, Steve Mark, was investigating a Clayton Utz partner and two senior associates after receiving a complaint about the solicitors’ conduct in the [Kazaa] trial, which concluded last week.

The Clayton Utz lawyers — partner Mary Still and senior associates Nicholas Tyacke and John Fairbairn — have denied any wrongdoing in their conduct in the case. If the Law Society deems disciplinary action is warranted, proceedings will be commenced in the NSW Administrative Decisions Tribunal, which can impose sanctions ranging from a formal reprimand to cancellation of a practising certificate.

These are pretty serious allegations. They stem from comments made by Wilcox J in his Honour’s judgment, handed down last week:

[26] The principal parties relied heavily on evidence from so-called ‘independent experts’. Much of this evidence was helpful, some of it extremely valuable. Some of this evidence was not helpful, either because it related to a peripheral, even irrelevant, matter or because I was compelled to form an adverse view about the objectivity or intellectual integrity of the witness. I mention, in this context, particularly Dr Roger Clarke, whose evidence on behalf of the Altnet parties was little more than a partisan polemic, and, to a lesser extent, Professor Ross. …

[227] Professor Ross is Professor of Computer Science at the Polytechnic University in Brooklyn, New York. He has taught computer systems engineering at university level since 1985 and has published widely. … The professor was obviously well qualified to give expert evidence in this case. However, my confidence in him was shaken during the course of his cross-examination.

[228] Mr Bannon showed Professor Ross a draft of his report that contained a passage dealing with the relationship between Joltid’s PeerEnabler software (used in FastTrack) and Altnet’s TopSearch technology. The draft shows exchanges between Professor Ross and a solicitor at Clayton Utz, acting for the Sharman respondents. Professor Ross initially wrote the words: ‘The Altnet TopSearch Index works in conjunction with the Joltid PeerEnabler to search for Gold Files’. The solicitor crossed out this sentence on the draft and suggested a substitute sentence: ‘TopSearch searches its own Index file of available Altnet content and PeerEnabler is not needed or used for this, other than to assist in the periodic downloading of these indexes of available content’. Professor Ross replied: ‘I was not aware of this, even after our testing. But if you say it is so, then fine by me’. He left the solicitor’s words in the draft.

[229] When Mr Bannon asked about this, Professor Ross responded:

‘Unfortunately, I don’t have the report memorised. But it is my recollection that I was not comfortable with this and I took it out in the end. But I would like to see my report to confirm that.’

[230] Mr Bannon then showed Professor Ross the email showing the solicitor’s response to his ‘fine by me’ reaction. The solicitor said: ‘Keith, we want to try to avoid you being exposed to criticism so how about’. The solicitor then suggested the sentence that appears in Professor Ross’ final report. The cross-examination went on:

‘You see it wasn’t you feeling uncomfortable. Clayton Utz said, well, in effect, Keith we want to try and avoid you being exposed to criticism, so how about something different. And they ruled out what you were otherwise prepared to swear up to based solely on their say so? — I wouldn’t agree with that. I wouldn’t have been comfortable putting it into the final report I suppose unless I was given further evidence of this fact.’

That is not what you communicated? — Well you have to read between the lines. I said that we had phone calls as well and during the phone conversations often I would indicate that there were some things I was uncertain with and I would want an additional explanation or justification.

You said: “If you say it is so then fine with me.” That is all you said? — Once again I do not have my final report in front of me so I am not 100 per cent sure what I put there. But again in saying this I just know the way I am personally. What I am saying there: “Fine with me, once you give me additional proof”.’

[231] I cannot accept that explanation. I am forced to conclude that Professor Ross was prepared seriously to compromise his independence and intellectual integrity. After this evidence, I formed the view it might be unsafe to rely upon Professor Ross in relation to any controversial matter. Of course, that does not mean his evidence should be totally disregarded.

This is not the first time that the firm has been the subject of judicial critcism. In 2002, Eames J of the Supreme Court of Victoria alluded to less than professional conduct on the part of Clayton Utz’ solicitors. They’ve since had trouble maintaining their image in various other respects. On the latest allegations, the firm’s spokesperson had this to say:

“Clayton Utz complied with the obligations imposed on solicitors by the Federal Court in relation to the preparation of expert evidence and there was no finding in the judgment to the contrary nor was there any criticism of the firm’s conduct.”