The Sounds of Silence: Robinson’s ResAARrection & the Indolence of Mainstream Media

Silence like a cancer grows
Two weeks have now passed since AllensGate done got real, and there’s still nary a mention of the sorry saga in any of our favourite Friday legal rags.  This has led some spies to wonder why — is this a non-story, or is something fishy going on?  Says one:

Astonishing as it sounds, my conclusion based on multiple media friends is that there appears to be an edict to journalists at both News Ltd and Fairfax not to ask Allens (or anyone) questions about the Robinson/Allens/Aconex matter and to try to ignore it.

We can’t confirm this, of course, but we’ve also tried to obtain details of any injunctions recently sought against journos and found nothing.  Perhaps a secret injunction is in place?

Well, it’s Friday morning and the legal papers are out.  Where’s the coverage of the departure — and apparent resurrection — of one of the giants of the Australian commercial law scene?  Given Robinson’s tenure, seniority and notoriety, not to mention his reputation in Melbourne and his role at elite boys school Scotch College, we found it a little staggering that nobody had reported on his retirement — let alone AllensGate — but us and Crikey.

Then came the news that Robinson’s profile had been reactivated on the Allens website, as swiftly and silently as it was removed.  And it seems he is still very much in the building, and just as cavalier as ever, if this Allens spy is to be believed:

I have seen Michael Robinson in the office a couple of times this week, the first time walking around and prominently displaying a a binder of ’Aconex’ Board documents, almost as if he was showing it off.

His bio is still up on the AAR intranet.

No internal announcement why his ”lawyer profile” was taken down from the AAR website.

His office has not been cleared out and he is using it as before.

Strange, huh?

Strange, indeed.  Business as usual it would seem.  Of course, it seems too much of a coincidence that, mere days after we leaked documents detailing Robinson’s involvement in the alleged conflict, his profile disappears.  In the face of this defeaning silence, however, we can only speculate.

So here are our top ten reasons for Robinson’s miraculous ressARRection:

10.  Blame the IT department – we helpfully pointed out a ‘glitch’ which they noticed after reading FS and Crikey – and fixed it … a week later.

9.  Through his divine consultancy power, Robinson temporarily decided to deprive us of sight.  But then the AAR partnership realised that consultants shouldn’t use the firm’s IT equipment for such righteous vengeance… and knelt before Him.

8.  Robinson grew tired of endless golf and Scotch sessions.

7.  The Fukushima Fifty refused any further attempts to avert nuclear meltdown until .he could watch over them … from cyberspace.

6.  It was all a game to mess with online media.

5.  Robinson came out on top in a behind-the-scenes power struggle.

4.  Allens realised that hiding him inside and just on the intranet wouldn’t work – for long.

3.  It was a really bad, heartless, feckless decision – which they realised after reading FS comments – and they have, to their credit, reversed it.

2. Divided they fall: they realised that if Robinson goes down over the Aconex conflict, they all go down.

1.  Another even stranger reason, but only a handful of people know and they are not telling.

Do you have a stranger reason?

Now we’ve just heard from an anonymous source at the Vic Bar that no fewer than 12 leading barristers have been briefed by Allens for an opinion on the issue (or, ironically, to place the barristers in a “conflict” position with any potential adversary).  With any luck one of them will come back with the Right Answer, yes?  Or is it just old-fashioned stonewalling?

Well, being unable to secure any decent counsel, and with our curiosity unsated, we decided to do some research of our own.  We dusted off G E Dal Pont’s 3rd edition to Lawyers’ Professional Responsibility and decided to do a bit of research into the merits of AAR’s legal position.  GDP’s famous book had little insight on the issue, save for an unedifying paragraph at [7.90].  We emailed him for his view, but he just referred us to the latest edition and had nothing to add.  Enterprising, Gino, but unhelpful!

Unfortunately, nothing was forthcoming from GDP’s subsequent text, nor the NSW Solicitors’ Manual. We even emailed Professor Ian Ramsay, who, you’ll recall, told Crikey:

I can’t see a conflict. He could have used a company email address or a personal email address but that just doesn’t look like any kind of conflict… [the consultant/director] is not personally benefiting in some
way. I dont see this as a significant issue based on the information provided.

We asked Prof Ramsay just what was the “information provided” by Crikey before he made his comments, but sadly got no reply.  Perhaps he was too busy lunching with the current AAR Chairman, and fellow member of the Takeovers Panel, Ewen Crouch?

But then we stumbled onto a 1996 article entitled The Solicitor Company Director – Balancing The Duties of Care, which concluded:

No court or disciplinary proceedings have to date run to a judgment on this question, at least so far as the authors are aware. The reasons why not are obvious. Any solicitor finding him or herself caught between the competing obligations owed as a solicitor and a director would be well advised to negotiate a speedy settlement. The question though has to be raised if the Law Society should consider the imposition of a conduct and practice rule preventing, or at least strictly limiting, the ability of practicing solicitors to hold board positions. The two roles bring with them inherently conflicting positive obligations.

And, of course, as cases like Chan v Zacharia, Boardman v Phipps and others make blatantly clear, even if there is no risk of an unauthorised profit being made, a breach of fiduciary duty can arise merely from a real possibility of conflict between duty and interest.  Not to mention the interesting pt 2.E issues under the Corporations Act: Robinson, as a director, is clearly a related party under s 228 of the Act; so the giving of a ‘financial benefit’ to his former partnership (in which, for all we know, he might still have an interest) may well give rise to a prima facie disclosable transaction (especially since ‘financial benefit’ is to be construed broadly: s 229).  Whether he could avail himself of the defence in s 210 remains to be seen.

So, where does this leave us?  Based on our research (and making the same host of potentially incorrect assumptions expressed in this post), we think there’s a pretty arguable case that Robinson had a prima facie conflict of interest between his duties to Aconex and his duties to AAR, which, putting the case at its lowest, was probably not consented to at all points during the relevant period.  This would leave Robinson in breach of his statutory duties under ss 180-184 of the Act and raise related party issues under Part 2.E.  Separately, this would suggest actions against Allens under s 79 of the Act and possibly for negligence (though we lack particulars on this issue).  At this point, however, we approach the limits of what we know.  Allens spies, got any more juicy info you’d like to share with the world? How about something that is “newsworthy” for the Friday rags?

In other AllensGate news, we’ve been informed by an anonymous Minters spy that AAR has retained Melbourne sole practitioner Howard Orbst (ex-Minters, we think) to represent it in the disciplinary proceedings and any shareholder action.  Meanwhile, Aconex has apparently jumped ship to Arnold Bloch Liebler – not that one can blame them, really.

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