crazy single female chicks … [who] just need a good **** to get them back to normal.
It’s not exactly reassuring stuff for a member of Australia’s legal elite. In her judgment, Justice Lucy McCallum described Mr Izzo’s comments about women lawyers as “no advertisement for male sensitivity” and said Mr Izzo was “evidently no feminist”. Her Honour also stated:
It is difficult to decide whether it is more surprising that the remarks were made at all (after over a century of feminism) or that a lawyer recorded them in an email (after seven centuries of subpoenas).
This got us thinking. Seven long centuries of subpoenas… and about the same length of time of objections to subpoenas. Presumably, it would have been open to Mr Izzo to object to the subpoena the subject matter of which were email exchanges between himself and others, apparently unrelated to Clayton Utz legal work. We’re sure there are a few readers out there who have sent emails that they would seriously regret being read out in open court (we do too), so what grounds are there to restrain the return of some future subpoena exposing the dark secrets inside your inbox? We’ll get to that in a second, but first, the following rumour was sent to us last night by an anonymous Clutz spy regarding Mr Izzo:
Izzo has ‘resigned”. I wonder whether he stayed until the case settled as leaving earlier might be either seen as guilt or perhaps made defending the case harder (as in why would he bother co operating).
Another explanation, we think, might have been the outcome of the hearing on the lifting of the suppression order over the emails that had been subpoenaed in ClizzoBridgetz. Which gets us to the steps Mr Izzo could have taken to prevent their exposure in the media.
The Permanence of Emails
You may think when you hit delete in your inbox that your email is actually deleted. However, as we understand it (we invite ITers to correct us), many major Australian corporate firms, certainly those using Microsoft Outlook (which is most), have some kind of data retention system in place. Yes, an email may be deleted from an inbox, but it might still be automatically archived locally in Microsoft Outlook, archived in on-site data servers or tape backups, and also archived in off-site data storage warehouses (there are customarily more than one of these). That’s a lot of backing-up! But where does this leave the “powerpoint presentation” you sent in 2002 to a few colleagues? The same email which might one day be subpoenaed to substantiate the claim that you are a sexist pig?
Good question Firm Spy! We think there are probably 3 causes of action which will one day be used to test the ability of emails like the one was saw from Mr Izzo above to be subpoenaed in litigation.
Proprietary Claims
Although an email may be stored on a law firm’s servers, if it has no discernable connection with the individual’s employment, then, there is at least a hypothetical argument that the fact of its creation by the individual gives that individual a proprietary claim to its ownership. However, such an argument will generally be defeated by terms in each employee’s contract of employment, which typically assign all copyright in documents created at work (irrespective of whether documents relate to work matters) to the employer. Game over. However, assuming Izzo could successfully argue that his personal emails fell outside the scope of the assignment clause, this might have given him the chance to object to the subpoena on the basis that Clayton Utz didn’t own “his” emails and, as the addressee of the subpoena, was not lawfully able to hand them over. Clayton Utz, on the other hand, would presumably have vigorously defended any such application by Mr Izzo, arguing that emails sent from @claytonutz and stored on its servers are indeed the firm’s property.
Breach of Confidence
Applying the traditional equitable doctrine of breach of confidence, Izzo might have argued that his authorship and storage of emails on the firm’s servers and other equipment imposed an obligation of confidence in respect of their contents, such as to defeat disclosure. A preliminary issue here would be whether the emails are actually confidential — the fact that they relate to “personal” matters doesn’t necessarily mean that they contain information which is confidential. A problem here is that, under the equitable doctrine, there is sometimes said to be “no confidence in inquity”, meaning that false or perhaps scandalous information will not be protected. That’s probably the case here. The obligation of confidence would arguably arise as an incident of either
(a) undertaking to store emails in a private inbox in a secure fashion on a password-protected account, or
(b) receiving material that is “obviously confidential on its face” in circumstances where the firm knew or ought to have known of that confidentiality.
An analogy might be drawn with the obligations a solicitor (or firm) undoubtedly has to keep client emails confidential on these systems — though the obvious difference here is that it is the solicitor who owes fiduciary duties to his employer and not the other way around. As to whether Mr Izzo would come into equity with clean hands, well, we prefer not to speculate on that one.
Invasion of Privacy
What about the modern “action” for invasion of privacy in the context of emails sent from the office inbox? It seems clear that the exposure of the emails is an intrusion ino correspondence which Mr Izzo expected would remain private. Was the expectation reasonable? The answer to that question might turn on factual considerations like the ability of Mr Izzo to communicate with the same people from an alternate email address at his workplace – did Clutz permit staffers to access private email accounts for private correspondence? Is it ever reasonable to expect abusive material to be kept secret when the very existence of that material is directly in issue in a proceeding for workplace harrassment? Had Mr Izzo been a recipient of similarly framed emails from some of his workplace superiors? On this, we turn to the following comments we received last week from an individual purporting to be a Clutz secretary (this is unverified – we expressly cannot substantiate the veracity of this comment):
I work at Clutz Melbourne…every time a female employee commences work at CU, some of the male partners will send an email to each other giving her a score out of 10 for her appearance and another score as to how quickly she will sleep with one of them. In a separate email, some partners were arranging a meeting with female counsel, where one partner remarked “hope her tits are as good as I remember them”. CU’s mysognist culture is an absolute disgrace and it makes my blood boil that no matter how much women have fought for and achieved, we still have such a long way to go. As a previous poster noted, Styles is to be commended for sticking up for herself and exposing CU’s repulsive culture. Ladies, I strongly encourage you not to apply for a job there. I am taking my own advice and calling it quits after Christmas, I value my intellect and integrity far too much to continue working there.
We were very cautious not to publish this comment (it was a comment to last week’s post on the ClizzoBridgetz settlement) without seeking some further info from the individual who wrote it. This is what they said in a reply to an email (agan, this is unverified – we expressly cannot substantiate the veracity of this comment):
I am a legal secretary at CU and have been there for [redacted] years. I assure you its true. CU is the most toxic workplace I have ever encountered. I don’t understand their attitude to women at all. CU has a networking committee exclusively for women called Momentum, where they teach female lawyers how to network and support each other. A male senior associate commented on how sexist that was and that an equivalent committee should be formed for men. I am disgusted that men still earn more than women and at any attempt for women to up skill and try to improve their lot, they are shot down at every level and her final contribution to the workplace is determined by her appearance. Sorry for the rant, but I am repulsed by their culture and I am baffled as to how it is tolerated.
Now, let’s assume for a moment that what this individual purporting to be a Clutz secretary says is true, then, it is not altogether implausible to think that Mr Izzo himself might have been involved in tasteless intra-firm correspondence … but with employees more senior to him. Let’s suppose a partner wrote him a sexist email – several years before he sent the “just need a good **** to get them back to normal” email – perhaps Mr Izzo may have formed the view that, because of having received such emails in the past, his creation and dissemination of emails of the same kind might be thrown into the Clayton Utz “private email” pile. Heck, he might have thought he had a right to privacy! Most commentators who talk about a tort of privacy frame it in the context of there being a “reasonable expectation” of privacy, the breach of which would be offensive to a “person of ordinary sensibilities” in the place of the applicant, here Mr Izzo. What do you think? If the hypothetical scenario we’ve set out above is correct, was it unreasonable for Mr Izzo to expect his “just need a good **** to get them back to normal” email would remain private?
Supposing the answer is yes, would a hypothetical person with ordinary sensibilities in his position feel like their privacy has been breached with those emails being handed over? Where does this leave you and that “powerpoint presentation” from 2002?
We invite your views in the comments below.
Loading...
YAY….. this guy deserves nothing but the worst! so glad no one will have to see him around the office!
You have to be seriously naive to think that the partners of these firms don’t think or act that way – they are men not monks. As a woman, why not work it? It might just get you another step up the ladder…
To be fair, you probably should check with Izzo if he resigned, although no-one seems to be denying it.
In regards to the anonymous legal secretary quoted in the article…
An example of how some women view feminism and equality as being whatever they think it is and them moving up in the world, no matter what.
If all women want is equality, why should men not get a networking group if women do. Woops sorry, feminism for some women means only they should be promoted and progress in their profession.
Dear Anonymous are you insane??
Surprised by your post as its obvious the behaviour described in the article is completely sexist and unacceptable and as a member of the opposite sex i don’t ‘want to work it’ as i would prefer to uphold my dignity and be valued for my intellect and my contribution to the firm rather than my tits. Yeah some partners do think like that but not all….. surely its insulting and jumping to hasty conclusions to posit ALL male partners behave this way. Furthermore i don’t think that females should have to ‘work it’ to climb up the corporate ladder. They should be able to enjoy professional success the same way a man would.
“As a woman, why not work it? It might just get you another step up the ladder…”
After 27 years in the legal industry i can tell you that the women who behave the way you have just describe are never treated equally by their male counterparts. Yes they receive a little more attention but at the end of the day they are not taken seriously. The ones that do enjoy a lot of success are the hardworking females who rise above all that crap and are dedicated to their work. The attitudes of these partners describe above is nothing but disrespectful and its not something that should just be accepted as the norm.
Izzo will been asked to leave on favorable terms – clutz will stay totally silent or make some lame announcement about Izzo and the firm parting ways and then replace him with a female SA who they will immediately ram down every client’s throat to show how PC they are
I think this should be a warning to all lawyers think twice about what you write in an email and send out. Izzo’s career is over and regardless of whether Clutz gave him a payout to go or not it won’t last him the rest of his life. The fact that any time he goes for a job interview his name will be googled and it’s unlikely he will be hired means that the only thing he can do is either change his name or start his own business. Perhaps he can get into making men’s underwear like the other previous clutz lawyers who are running a hoisery business.
For some women that is what feminism means but most just think women should be treated as equally as men and its clear by the stats that there is a total imbalance between the ratio of female and male executives in firms. I also don’t think your point about some feminists believing only they should be promoted has anything to do with the sexist language and behaviour of certain ppl involved in the Izzo / Styles case. Also do men really need things like networking groups? Despite all the progress/ effort made by women its pretty clear men have held more power in the corporate arena for decades which is indicated by the disparity between pay and promotions. I think you have to understand that all these networking groups and feminist initiates derive from inequality in the first place and i think most ‘feminists’ just want equality rather than an imbalance of power between the sexes in the form of women being the only ones receiving promotions
I wonder if there was a suggestion that he would have had to pay his own legals if he ceased to be an employee of CU.
Separately, I think this is a great example of what happens when you don’t keep it stashed in your slacks at work. Getting involved with someone at work is bad enough, getting involved with someone within your direct workgroup is just crazy.
Quoting: “A problem here is that, under the equitable doctrine, there is sometimes said to be “no confidence in iniquity”, meaning that false or perhaps scandalous information will not be protected.”
I don’t necessarily agree FS. See Duchess of Argyll v Duke of Argyll [1967] Ch 302 (although a marital confidence case, the application for injunction sought to restrain the Duke from breaching the confidence and the media from publishing scandalous photos of the Duchess of Argyll caught in flagrante delicto with the headless man [history now tells us there were in fact 2 men in the photographs].)
I used to work at CU and also had the misfortune of interacting with the Sydney EWR team. What is most ironic in all of this that nobody seems to mention is that this is team that is supposedly expert in discrimination law. Read their discrimination “insights”. It’s no surprise that Luis has now gone as a consequence of the settlement. They cant exactly roll him out to top tier clients addressing cultural issues that exposé them to risk of vicarious liability other than as exhibit A. It seems his position became untenable. Also, on the issue of emails – anyone who works in a half decent organisation which has an IT and Email Policy will probably find they have a contractual obligation to comply with standards of use and reinforce their acknowledgement of this each time they log on. The emails they send on their employers system are the property of the employer and there should be no expectation of privacy. Ironically the EWR team writes these policies and would advise on this stuff all the time. The fact of the matter is that he was an idiot to send such an email whether to friends or not. But then when that’s commonplace in a firm like that it’s not surprising.
One of my staff used to work at Clutz and knew Izzo and laughed her head off at Izzo’s resignation and fall from grace. When the scandal broke out, she said “It must be Luis Izzo” before I even mentioned his name.
I think some perspective needs to be taken on this matters, which is something Ms Styles truly lacked. She’s made a name for herself, and will undoubtedly try to capitalize on this at the Bar.
Who’s the loser and victim in all of this? Izzo, but entirely of his own making. Let’s not feel sorry for him, but let’s recognize who’s left worse for wear.
Perhaps he might join the other Izzo at the Bar also?
I’d buy tickets to any matter that had Izzo and Styles as opposing counsel!
This grubby sordid tale finally comes to a close.
I agree that she has made a name for herself… but at what cost. People are quick to point out that people will ‘google’ Luis Izzo when he applies for any job in the future, but the same can be said for Ms Styles… I certainly know that it is the first thing I do when hear which barrister(s) are working on a matter. Regardless of who is at fault, I am not sure either Bridgette or Luis really want to be associated with this mess going forward; but they will – so I suspect that whilst the ‘sordid tale’ has concluded, the implications will linger.
What Izzo did was poor conduct, but for him to lose the remaining 40 years of his career over this is an unnecessary overkill.
My advice to Luis would be: to change his name, get reference letters from his partner/sa colleagues referring to his new name. Go to Dubai, London, Nz, Cayman Islands, New York…. I’m sure he’ll find something worthwhile.
Recognise your ill conduct and the wrong you did, and vow to never do so again. You’re young, you can improve, and if you do it right, you have endless opportunities.
Shave your much loved hair, grow a well cut manicured beard, and once you get a job overseas, let your eyebrows join (that way you would be disguised in case overseas colleagues come across FS posts).
You were bad, but you don’t deserve a stygian sentence.
to be fair to Luis, some of them *do* need a good **** to get them back to normal.
Clutz are a bunch of c*nts.
Hmm… And I’ve never seen a group of female SA/partners, or secretaries, commenting on how hot the new guy is…
You can’t have your beefcake and eat it too, ladies.
Hmmm things don’t really add up with this story. What possessed Clutz to promote him while this was going on? And is it true that as per the previous FS story that Izzo was still being “rolled out” to govt clients over the last few weeks? Either none of that is true, or the clients have threatened to go elsewhere for Izzo to have now “resigned”.
Personally I think he deserves everything coming his way. The man is stupid and sexist which is a pretty nasty double whammy.
That Izzo is guilty of extreme stupidity ought not destroy the whole of his career. The way he was talking was just male banter with friends. If females are shocked by this kind of private talk between male friends, they should not be, and this is normal banter between males. It does not mean that he actually explicitly believes what he says. It is a ‘gee up’ between friends. Females are only getting on his back about this email because they are jealous of his success etc.
He will be hired somewhere else, which he should be.
But it wasn’t just talking was it? He was stupid enough to put it on email and therefore deserves everything he gets. After all this wasn’t a “that chick is hot” comment…..
“crazy single female chicks … [who] just need a good **** to get them back to normal.”
Is at the really f***ng tame end of the banter that flies around between the boys at big firms (or any firms, but at smaller places there aren’t as many staff to comment on).
Putting it in work email is daft but anyone that thinks what he said is unusual or outrageous is out of touch.
Of course, it can be (and has been already in this comments section) speciously linked back to women not getting promoted and women not getting paid as much and women not being allowed in the mens bathroom and women not having at least one women-only firm social function each f***ing week and women this and women f***ing that.
@Chris, golly gosh, are you really Luis Izzo?
Nah I reckon he just isn’t getting any……
Listen to all the phony morons on here – so easily tricked by tabloid journalists.
It is no wonder A Current Affair and The Telegraph do so well if lawyers swallow this sort of rubbish so easily.
Even FirmSpy knows this case was a hollow non-event.
The fake moral outrage over an out-of-context private joke is so pathetic!
Having spent quite a few years at Clutz Melbourne, I don’t know what your correspondent above has to complain about. It’s just like any other firm. Actually, having had a thing with a colleague there, I was amazed how discrete everyone was about it (despite me learning some time later that it was widely known).
Two comments: (1) regarding the IT issues and email deletion; and (2) regarding your legal analysis of grounds on which a future Izzo might resist production pursuant to subpoena.
(1) I’ve come across the IT issue in the course of my litigation practice. FS’ analysis is broadly correct and obviously, data storage practices vary from workplace to workplace. It might be worth adding that back-ups from a firm’s server to data tapes (externally stored) are often done relatively infrequently (although regularly): say, once per month. Your best bet for data deletion is to “double-delete” the emails as soon as possible after they go to your sent items or are received in your inbox. (I.e., delete in your sent items and permanently delete the item from your trash on the same day you sent the email.) With some systems, it is possible that if you have quickly and permanently deleted the item, it will not be picked up by a monthly archiving/data storage process (for example).
(2) The FS legal analysis of “causes of action” that would be available to a future Izzo to resist production under subpoena is way off.
For a start, they’re not “causes of action”; subpoenas and grounds to resist complying with them are governed by a body of law particular to those issues, and which sometimes varies according to jurisdiction and the practice and procedure of each court.
Your first ground, that Izzo might have a “proprietary interest”, is entirely irrelevant. The starting point is whether the document is in the firm’s possession, custody or control and you reason out from there. You might argue that the document in question is not probative of an issue on the pleadings and that, to the extent that it is responsive to the categories of documents identified in the subpoena, then those categories are oppressive.
Your second ground, confidentiality, misconceives how that concept applies in the context of discovery and subpoenas. There are specific tests for establishing the confidentiality of documents subject to subpoena or discovery obligations and the issue has nothing to do with breach of confidence in equity.
As for your third ground, “privacy”, I’m sure you know that no such right is recognized in Australian law.
Bit of an amateurish analysis, guys. Probably better to leave the litigation to the litigators and get back to those deals.