Conflict of interest for legal counsel

[KennyHunter9]

There appears to be a clear conflict of interest in this whole debacle.

Essendon are paying the legal fees for its players, and even selecting who should act for them.

Given that the players need to consider their rights in relation to the behaviour of the football club, how has this conflict gone unnoticed?

While I can understand the players not wanting to spend their own money on legal fees, there are two better options:

- the AFL Players Association provide that legal representation and help players appoint lawyers;

- If the AFLPA don't have the funds, then Essendon should agree to underwrite these bills.

Some questions:

(1) How are the players means to receive independent legal advice when Essendon are paying the legal fees?

(2) Have the players been advised of their legal rights in relation to Essendon and its administrators, or has the only advice received been in relation to ASADA?

(3) Would Essendon still underwrite those legal expenses if the player decided to take action against the club?

(4) Why should the players all the same lawyers? I know Essendon wants to keep them in lock step and stop the dam wall bursting, but you can imagine that individual players are approaching this differently. You can see in Ryder's case that he is wanting to break free.

Seems to be that Essendon have been clever and self-serving and that the players are missing out on receiving independent legal advice.

 

[The Sultan]

Heard something in the radio today think The aflpa have their own legal advise / representative for the players but put it on hold pending the outcome of the Fed Court deal

 

[vjknight]

If you were to listen to essendon fans (yeah I know ridiculous) youd believe the aflpa can't be relied upon as they take instruction from the evil afl.

So that rules out that option.

 

[STFU Donnie]

Or, how about these highly paid, pampered gits finally start acting like adults and take care of their own legal issues?

 

[van peebles]

Or, how about these highly paid, pampered gits finally start acting like adults and take care of their own legal issues?

Think you will find 3 of them at least are doing so.
Maybe they are sticking by the club until the last chance to get out presents itself.{under legal advice]
Legal advice may be "lets wait until this plays out" and then we will activate our actions.

 

[jim boy]

Players have every right to seek their own legal counsel, but just like any other member of society, it will cost. Essendon are offering a form free legal services for the players. The players are certainly aware of who is paying the bills and it is up to them to decide whether to take the offer up or not. Essendon have no legal or moral duty to provide legal representation to the players that isn't inline with their own legal wishes

 

[STFU Donnie]

Think you will find 3 of them at least are doing so.
Maybe they are sticking by the club until the last chance to get out presents itself.{under legal advice]
Legal advice may be "lets wait until this plays out" and then we will activate our actions.

If the other thread is to be believed, then the club and its counsel have been seriously mushrooming the players. Any player who didn't immediately engage their own counsel when this started is a fool. That would be all of them, wouldn't it?

 

[van peebles]

If the other thread is to be believed, then the club and its counsel have been seriously mushrooming the players. Any player who didn't immediately engage their own counsel when this started is a fool. That would be all of them, wouldn't it?

Im led to believe a few have.
The advice has been,let the situation unfold and see what happens.
Then we will present our action.
But this to me,says that these blokes are guilty of deception anyway.
If they are smart enough to seek personal legal representation,they are smart enough to know they did wrong {or ignorant}in the first place.

 

[KennyHunter9]

Players have every right to seek their own legal counsel, but just like any other member of society, it will cost. Essendon are offering a form free legal services for the players. The players are certainly aware of who is paying the bills and it is up to them to decide whether to take the offer up or not. Essendon have no legal or moral duty to provide legal representation to the players that isn't inline with their own legal wishes

I agree, but you're missing the point: the conflict is the lawyers' conflict. They have put themselves in a very poor situation and should withdraw. How on Earth, for example, can David Grace QC be paid by EFC to advise the players independently? He must understand the conflict - and that's leaving aside his zero tolerance view of drug cheating from his Athletics Australia viewpoint.

 

[FuManchu]

Little arranged for his own counsel last year to represent the players before the AFLPA . His instructions were that the counsel acted solely in the interests of the players.

Legal counsel don't serve 2 masters. Their reputation depends on doing the best for their clients.

I don't believe for one minute that counsel at this level wouldn't do the best under the instructions they recieved

 

[KennyHunter9]

Little arranged for his own counsel last year to represent the players before the AFLPA . His instructions were that the counsel acted solely in the interests of the players.

Legal counsel don't serve 2 masters. Their reputation depends on doing the best for their clients.

I don't believe for one minute that counsel at this level wouldn't do the best under the instructions they recieved

Do you really think any of these players have received advice about their rights to sue EFC?

 

[FuManchu]

Do you really think any of these players have received advice about their rights to sue EFC?

They will have of course. But nothing has yet happened that would be their advantage to this point. They are still earning a wage and haven't been sanctioned for anything.

That probably will change. But on what basis would they have mounted a lawsuit to this point?

 

[Kwality]

Think you will find 3 of them at least are doing so.
Maybe they are sticking by the club until the last chance to get out presents itself.{under legal advice]
Legal advice may be "lets wait until this plays out" and then we will activate our actions.

Keeping their powder dry, imagine taking out a writ against the Bombers before the time to appeal the ASADA decision passes. The next move is Paddy Ryder: does the club fight or try to buy its way out by letting Paddy go for nothing under a confidential settlement? No legal precedent.

 

[KennyHunter9]

They will have of course. But nothing has yet happened that would be their advantage to this point. They are still earning a wage and haven't been sanctioned for anything.

That probably will change. But on what basis would they have mounted a lawsuit to this point?

Maybe, but what about the 10 or so players who have left?

They can claim breach of employer duties, or negligence.

 

[FuManchu]

Maybe, but what about the 10 or so players who have left?

They can claim breach of employer duties, or negligence.

But there is no point doing any action like that until it has all played out. That way the full ramifications can be assessed and you know the extent of damages to career, reputation and possibly health.

 

[SwampRat]

Do you really think any of these players have received advice about their rights to sue EFC?

A lawyer recommending someone sue their paying client? Now there's a conflict.

 

[Laphroaig]

It's been a massive conflict.

I'm not sure what the exact situation is now, but at one point we had the top end of a law firm acting for Essendon and associate lawyers from the same firm supposedly representing the players independently. It's ludicrous.

It can never be supposed that the best interests of the Club and the best interests of the players are the same thing. Or even that the best interest of player A are the same as player B.

Imagine a slightly different hypothetical for a moment. Imagine this had dissolved early on into the AFL trying to take on ASADA in court to make it all go away. And Vlad said:

"Don't worry Bombers. Leave it to me, even though you are the ones who take the punishment if it all goes wrong. AFL lawyers will look after it, and we'll send a shitkicker from the firm down to Windy Hill to watch over you."

Is there a single Essendon supporter here who'd have thought for a minute this was a good plan?

 

[KennyHunter9]

But there is no point doing any action like that until it has all played out. That way the full ramifications can be assessed and you know the extent of damages to career, reputation and possibly health.

I understand what you're saying, but the players (who are the ones facing infraction notices) should have had independent legal representation from the start. As Laphroaig notes, assuming that player A will have the same interests as player B is just wrong. Ryder shows that. Monfries has left but is playing for another AFL club. Riemers no longer plays AFL. We know their situations are different. Who knows the individual mindset of each player?

It was the very sheep-like behaviour of these young men - their Hird mentality - that contributed to this mess. They have been led by EFC in the same way they were unwittingly led before. Until they have separate legal representation this will continue. I am just astonished that the AFL PA has not done something about this. Their counsel too has been to the group as a whole, again, ignoring the individual interests of each player. Make no mistake: ASADA has issued individual SCNs - and will determine individual penalties.

Why is EFC doing this? Simple: they are clearly trying to keep everyone in the tent. They are using a legal strategy to try and retain the players. In the same way, they used a PR strategy to try and win a court case. The judge found them out. They are a disingenuous bunch. The players needed independent legal representation from the start.

 

[Baldur]

Players have every right to seek their own legal counsel, but just like any other member of society, it will cost. Essendon are offering a form free legal services for the players. The players are certainly aware of who is paying the bills and it is up to them to decide whether to take the offer up or not. Essendon have no legal or moral duty to provide legal representation to the players that isn't inline with their own legal wishes

But the solicitors if they are acting for the players, regardless of whom is paying the bills have the ethical duty to put the players interests first.

 

[FuManchu]

I understand what you're saying, but the players (who are the ones facing infraction notices) should have had independent legal representation from the start. As Laphroaig notes, assuming that player A will have the same interests as player B is just wrong. Ryder shows that. Monfries has left but is playing for another AFL club. Riemers no longer plays AFL. We know their situations are different. Who knows the individual mindset of each player?

It was the very sheep-like behaviour of these young men - their Hird mentality - that contributed to this mess. They have been led by EFC in the same way they were unwittingly led before. Until they have separate legal representation this will continue. I am just astonished that the AFL PA has not done something about this. Their counsel too has been to the group as a whole, again, ignoring the individual interests of each player. Make no mistake: ASADA has issued individual SCNs - and will determine individual penalties.

Why is EFC doing this? Simple: they are clearly trying to keep everyone in the tent. They are using a legal strategy to try and retain the players. In the same way, they used a PR strategy to try and win a court case. The judge found them out. They are a disingenuous bunch. The players needed independent legal representation from the start.

Essendon are doing what they think is best for themselves and a secondary byproduct would be concern for the players.

But primarily their interests do coincide to this point. If they prevent SC notices the players careers at least are somewhat protected. If SC notices are given and subsequent sanctions, then their interests become divergent and in fact it will become adversarial.

That's not to say that even at this point the players don't have a case for potential health and definitely mental health damages.

The players have had independent legal access from a relatively early point, firstly the club did appoint a well credentialed barrister and his instructions were to serve the players and only the players interests. And I have no doubt that is what has happened. The AFLPA also has afforded them legal representation. So, I'm not too worried that they have have had bad advice as yet. I think they are letting others roll the ball to see where it lands. When that starts working against them, then I expect you will see independent and varied actions from the players. And I think Ryder is the first of many independent courses of action.

 

[threesixpio]

But the solicitors if they are acting for the players, regardless of whom is paying the bills have the ethical duty to put the players interests first.

This is a very important point. I hope the solicitors have actually done this. Talk of players having no idea what was going to happen in the event the case went down is concerning but there may be a bit of wilful blindness/focusing on footy involved in all of this rather than unethical lawyers.

 

[threesixpio]

Essendon are doing what they think is best for themselves and a secondary byproduct would be concern for the players.

But primarily their interests do coincide to this point. If they prevent SC notices the players careers at least are somewhat protected. If SC notices are given and subsequent sanctions, then their interests become divergent and in fact it will become adversarial.

That's not to say that even at this point the players don't have a case for potential health and definitely mental health damages.

The players have had independent legal access from a relatively early point, firstly the club did appoint a well credentialed barrister and his instructions were to serve the players and only the players interests. And I have no doubt that is what has happened. The AFLPA also has afforded them legal representation. So, I'm not too worried that they have have had bad advice as yet. I think they are letting others roll the ball to see where it lands. When that starts working against them, then I expect you will see independent and varied actions from the players. And I think Ryder is the first of many independent courses of action.

Well we have the anonymous referral to workcover. Are people suggesting there should be one to the LSB?

 

[Albert Ross]

Brian Grace QC is representing the players.

In an sense the AFLPA has a conflict as well. Allowing players who doped to get off is effectively cheating all the clean(er) players at other clubs. In one sense seeing the EFC players would be an example of representing their members at 17 other clubs.

I think in this case it is just pragmatism. If Essendon spend $5m and get the case dropped then great, much better than spending your own money. Only when Essendon run out of willpower, money or options do the players breakoff and spend their own money on a lawyer to negotiate a deal.

 

[Laphroaig]

But the solicitors if they are acting for the players, regardless of whom is paying the bills have the ethical duty to put the players interests first.

We're talking real world here. I thought you were a fully paid up cynic?

Is an associate seriously going to go his own way as he sees fit because the players are his client? Or is he going to receive regular "advice" or "updates" from the partner who has the Club file on his desk? Both of them knowing that if the Club is not kept happy all those billable hours go a few doors down the block?

Even with the best will, how does he give one size fits all advice to the journeyman, the 21 year old "maybe has something" and the gun who's going to have Clubs competing for his signature whether he is suspended or not?

 

[FuManchu]

Brian Grace QC is representing the players.

In an sense the AFLPA has a conflict as well. Allowing players who doped to get off is effectively cheating all the clean(er) players at other clubs. In one sense seeing the EFC players would be an example of representing their members at 17 other clubs.

I think in this case it is just pragmatism. If Essendon spend $5m and get the case dropped then great, much better than spending your own money. Only when Essendon run out of willpower, money or options do the players breakoff and spend their own money on a lawyer to negotiate a deal.

The lawyer representing the players won't have a conflict. His brief will be to advise and represent to the best of his abilities in the interest of the players.

I know some conspiracy theorists amongst us might argue that lawyers paid for by third parties serve other masters, but it's just guff. And at the level these legal practitioners operate at, their reputation is everything to them and to jeopardise that by being compromised in their dealings is not something many would contemplate. Their future earnings depends on being scrupulously above board.