AARpocalypse Now; Michael Robinson Removed From Allens Website

– 10 March 2011Posted in: Allens Arthur Robinson, Firm Gossip

[This one goes out to the dozens of ex-AAR staffers we wrote about in this post]

For the last month, the world has watched with wonderment as the demise of Charlie Sheen has slowly, shockingly unfolded. The actor that brought us Hollywood classics like Apocalypse Now and Young Guns has been exposed by a frenzied media as possessing the full spectrum of vices in his private life. His professional career is over.

Allens removing profiles yesterday

But the true extent of Sheen’s catastrophic fall goes further than the few young porn starlets with whom he lives; it extends to the people and projects around him.  Two & A Half Men, as we know it, is over. Sheen wont be back. Heck, the show will probably have to change its name. Charlie was sacked on Monday after this outburst of poetry:

I’ve got magic. I’ve got poetry in my fingertips. Most of the time — and this includes naps — I’m an F-18, bro. And I will destroy you in the air. I will deploy my ordinance to the ground.

With that arrogant sentiment, potential name-change and sacking in mind, let’s move to the focus of today’s post — the removal yesterday of Michael Robinson’s profile from the AAR website. It used to be accessible here and identified that he joined the firm in 1960, was made partner in 1968, and was Chairman of the firm for many years. Mr Robinson’s great uncle, Sir Arthur Robinson (1872 – 1945), was actually the founder of the firm and the “Robinson” in Allens Arthur Robinson. But the lineal connection between firm founder Sir Robinson and the Allens Arthur Robinson of today appears officially at an end. Yes, it seems that either the firm or Mr Robinson has decided that it is time to part ways, 51 years after the relationship began.  Now, a search of the AAR website for Robinson’s name yields no mention of the person to whom the firm owes its name. The image below is what you will find if you search for Michael Robinson’s profile:

However,  if you check the Google cache you can see what was formerly on the site.

Robinson yesterday: I'm dripping tiger blood!

Strangely, the Aconex website which profiles director Michael Robinson as an “AAR consultant” is, as yet, unchanged. Robinson’s departure comes after several weeks of speculation by us that he was entangled in an alleged conflict of interest arising from his alleged use of an AAR email address in the performance of his duties as an Aconex director. We have been forwarded the following email which appears to suggest this to be the case (draw your own conclusions though; we are just reading something that has been forwarded to us):

EGM notice

Now, we’re not so sure this evidences any obvious conflict – Robinson is a recipient, not a sender, and it’s marked for his attention at Allens – presumably not an uncommon practice to copy in an external adviser on shareholder correspondence.  But it does appear to show that he was seen by corporate officers as an AAR representative, rather than a company director.

There was some great discussion of these and related points in the comments to last week’s post.  Keep them coming!  We don’t think it’s our place to express any conclusions of law — what facts we know are incomplete, their authenticity is open to question, and a lot depends (as commenters noted) on whether Aconex can be said to have given fully informed consent to the potential conflict.

However, we note the words of Brennan CJ, Gaudron, McHugh and Gummow JJ in Maguire v Makaronis (1997) 188 CLR 449.  In that case, the appellants were partners in a law firm which advised the respondent in a property transaction while providing bridging finance as mortgagee over the same property:

[I]f the appellants were to escape the stigma of an adverse finding of breach of fiduciary duty, with consequent remedies, it was for them to show, by way of defence, informed consent by the respondents to the appellants’ acting, in relation to the Mortgage, with a divided loyalty.  What is required for a fully informed consent is a question of fact in all the circumstances of each case and there is no precise formula which will determine in all cases if fully informed consent has been given.  The circumstances of the case may include (as they would have here) the importance of obtaining independent and skilled advice from a third party. On no footing could it be maintained that the appellants had taken the necessary steps of this nature to answer the charge of breach of fiduciary duty

Was there divided loyalty here?  On the one hand, Robinson (and Allens) didn’t have as immediate a financial interest as a mortgagee over property the subject of his advice — he wasn’t, for example, a shareholder in the company (that we know of).  But there appears to us to be competing duties that weren’t always aligned or clearly delineated: to the Allens partnership (or corporate services vehicle), to advise the company, to act as a director in the interests of the company as a whole.  Is this enough?

Importantly, Maguire is authority for the proposition that once a prima facie division of loyalty can be demonstrated, the onus shifts to the defendant fiduciary to justify the apparent conflict.  Did Aconex obtain “fully informed consent”?  We have neither seen nor heard of the existence of independent legal advice.  There’s also no evidence that we have seen that Aconex knew to what extent Robinson’s correspondence and company documents would be accessible by Allens personnel (if it was accessible, which is a question of fact we can’t answer).  Instead, there appears to us to have been passive acquiescence by Aconex over a long period of time and a progressive blurring of the lines.  We will leave drawing the ultimate conclusion, however, to the courts.

The real interest lies in the potential remedies available against Allens if a breach of duty is found.  Boardman v Phipps [1967] 2 AC 46 is the leading authority.  It opens up the full arsenal of proprietary remedies to claimants against solicitors held in breach of duty — including an account of profits and a constructive trust over the relevant property.  (Allens Arthur Aconex?)  If clients start waving disgorgement remedies in front of conflicted Top Tier partners, perhaps lawyers would take their fiduciary duties more seriously.

With Allens, one occasionally gets the impression — described by some commentators as “arrogance” — that:

“It’s a polygamy story…All my guy friends are gonna like throw tomatoes at me. It’s like an organic union of the hearts. … That’s how I roll. And if it’s too gnarly for people, then buh-bye.”

And with that chapter now closed, we thought it appropriate to read from the book of the Malibu Messiah:

I beg you all to stay glued for this raving wise, Gibson shredding napalm poet before you. Alone and unshackeld as the despreate cries of the  soon forgotten echo freely in my lair.

And glued you will stay! We understand several other AAR stars are also in the “lair”, with complaints having been made against various AAR actors to:

  • the Legal Services Commissioner of Victoria;
  • the Legal Services Commissioner of NSW;
  • the Legal Services Commissioner of QLD;
  • the Legal Services of WA;
  • ASIC.

Your free gold-class ticket to the premiere of AARpocalypse Now can be found at www.firmspy.com. The question is do you like the smell of napalm in the morning?

Send the Firm Spy your news and views!

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