Dotcom response and legal speculation

There’s been a lot of discussion and speculation about the reasons behind Kim Dotcom losing his lawyers and soon after having his bail conditions tightened significantly pending a hearing next week that could put him back in prison.

NZ Herald reported in Court places tough limits on Dotcom’s movements:

The new conditions are in place only until next Monday, when Dotcom will appear for a bail hearing in the Auckland District Court.

Before the issue of bail, Judge Dawson gave Dotcom’s former lawyers – Queen’s Counsel Paul Davison and firm Simpson Grierson – leave to withdraw from the case.

The restrictions follow Crown lawyer Christine Gordon yesterday making an allegation that the Herald is not permitted to publish.

Dotcom has tweeted:

I have never breached my bail conditions & my compliance is exemplary. But without lawyers representing me the Govt just couldn’t resist.

He plays the “Government is against me” card, but there could be reasons other than complying with his bail conditions.

David Farrar implies a possible connection in The Dotcom legal team:

We also might get a decision at some stage soon in the John Banks appeal, where allegedly new witnesses have contradicted the evidence given by Dotcom.

A number of lawyers regularly contribute to discussions at Kiwiblog and they and others speculate in response.

David Garrett:

This truly is fascinating (and I have no inside knowledge). The most common reason for lawyers to get leave to withdraw is when the client is refusing – or is unable – to pay his bills. All the more interesting because Davison has no necessary connection with Simpson Grierson – like me Davison is a barrister who must have an instructing solicitor (Simpson Grierson in this case), but that instructing solicitor can be anyone…literally a sole practitioner from West Auckland could instruct Davison – so long as Davison is prepared to act for the client.

I somehow doubt Dotcom is unable to pay…another reason lawyers withdraw is when they find they have unintentionally misled the court because they have been told porkies by the client…as I say, I have no inside knowledge, but the fact that BOTH the instructing solicitors – to whom Dotcom will have paid hundreds of thousands in fees – AND the barrister have withdrawn smells very strongly of rat…even more so if SG have removed all reference to their former client…like any other big firm, Simply Gruesome are usually quite happy to be identified with a high profile (civil) client whose case presents novel and difficult issues…

Dotcom’s is the biggest copyright case this country has ever seen, or probably is ever likely to see…All very odd…

NB: Nothing in my comment should be construed as an allegation of wrongdoing by Dotcom, Simpson Grierson, its partners and staff, or Paul Davison QC

And…

I think the Herald website refers to “an allegation which cannot be published”…as someone above me said, curiouser and curiouser…Lawyers withdraw from cases all the time, but it is very rare for both the barrister and the instructing solicitors to withdraw at the same time…

Logic would suggest that this withdrawal is somehow connected to the tightening of Dotcom’s bail conditions…but as you say, that is just speculation…

Nookin:

One possibility is that the lawyers’ obligations to the court have been severely compromised by some inappropriate or improper action on the part of the client such that it is no longer tenable for them to continue acting. Curious that the issue arose contemporaneously with circumstances necessitating tightening up the bail conditions.

If this has happened and publication might prejudice the outcome of the extradition proceedings, it is appropriately suppressed. I can only surmise here, bearing in mind the fact that the extradition proceedings will be heard by a judge alone. I can understand suppression on these grounds of their was a jury but this is clearly not the case.

alex Masterly:

Nookin, I think that your first sentence is pretty much bang on target.

For the sake of completeness I note the CCC rules at clause 4.2.1 define good cause for termination of a retainer as including
– instructions requiring a lawyer to breach a professional obligation,
– inability of a client to pay a fee
– the client misleading the lawyer in a material respect,
– the client failing to provide instructions in a timely way.

David Garrett:

The rules are pretty clear: lawyers must not mislead the court, and cannot allow a client to do so. …which is one of the reasons lawyers usually never ask “Did you do it?” Because if the answer is “Yes, but my defence is I didn’t”, that limits the options for counsel…for example you cannot then put the client in the witness box knowing he would lie under cross examination.

If the lawyers became aware that a client was about to commit a crime then they are obliged – I think – (cant be bothered looking up the rules) to both withdraw and inform the police..

As I say, to have BOTH the instructing solicitors and the barrister withdrawing is most unusual…A colleague has suggested to me that one reason may be they think his case is hopeless, but I don’t believe that would be a valid reason to withdraw…it will come out…

Certainly some information has been put before the court which led to his bail conditions being considerably tightened…and as I have said, it would seem to be more than a coincidence that at the same time his lawyers both withdraw…

If he has a big enough speedboat he could get to Australia…or even further if he refuelled on some Pacific Island…

Scott1:

What sorts of things are included in “misleading in a material respect”?

David Garrett:

Scott: Oh: Things like “My total net worth is USD10 million” when in fact it’s double that; Claiming “I don’t have an account in Leichenstein” when in fact he does, and it’s got a shit load in it; claiming he wasn’t present at a crucial meeting where an illegal plan was discussed, and then a tape of the meeting comes to light establishing he was there; claiming a document is genuine when in fact it is a forgery…stuff like that.

Chris Diack:

Mr Dotcom is probably not paying his legal bills (and probably not paying many of his other bills either) That will be why SG want out. They continue to pay Paul Davidson QC and do legal work yet have probably received no payment recently. PD will stuggle to find an instructing solicitor that can back him like SG and of course they may well not get paid (so who would do it).

I doubt they were consulted over Mr Dotcom’s political donations ($4million) and so read about it in the newspapers. Would be galling if you are not being paid and being advised by the Client the money is short. More so now that it is clear that the strategy to get Parliamentary leverage did not work and has actually been detrimental to your clients interests. I suspect had SG been asked they probably would have advised against making such donations as counterproductive.

I doubt the Crown wanting to tighten the bail conditions has much to do with SG wanting out. Probably he has been breaking existing bail conditions (like using a copter). The allegation mentioned in the report is probably that the Crown has some evidence (maybe someone Mr Dotcom has spoken to or as a result of warranted surveillance) that he is considering doing a Smith. Wouldn’t be surprised if they produce a affidavit to that effect. That establishes the flight risk.

David Garrett:

Chris D: You reckon SG has been paying Davison’s bills with their own money?! I must say I find that hard to believe…but as instructing solicitors they have the responsibility of seeing that he is paid, so I suppose you might be right…

I am told Davison charges $1000 an hour for cases that he WANTS to do…if it’s something that doesn’t tickle his fancy I believe it is double that…Again, I have no inside knowledge…just scuttlebutt around the robing rooms…

Interesting fellow Davison…

We will find out more about this next Monday.

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10 Comments

  1. I think Dotcom will be sweating a lot this Christmas, and not because of the hot weather. He seems to be accumulating a series of losses, but it took a long time for the MSM to turn against him and start reporting what is really going on and kissing his arse. The major turning point I would have to say was the u turn by David Fisher, and it all went tits up from there. The Big Reveal was a failure. The damning evidence against Key was a failure. Bringing down the Government was a failure. Getting into parliament was a failure. Pam Corkery was a failure. Retaining his lawyers was a failure (especially after investing so much time and money into monitoring the Whaleoil blog), stopping having to disclose his assets was a failure. Keeping his finger in Baboom was a failure.

    At least he’s good at video games. Bring on the extradition hearing in Feb.

    Reply
  2. kittycatkin

     /  19th November 2014

    Dotcom…Dotcon…Dotgone…

    Pride goeth before a fall, and a haughty spirit before destruction. True in Bilblical times and true now.

    $1000-2000 AN HOUR ??? Oh, why, why, why didn’t I do my degrees in Law ? Too late,

    Reply
    • It’s not too late to do degrees in Law, getting your foot in the door of a law firm might be a different story 🙂

      Reply
      • Could it possibly be that he was Hager’s ‘Rawshark’ informant that hacked Slater’s accounts.. Could justify the legal teams hasty exit..

        Reply
        • Well if only I was a fly on that wall. Key should have just been out with it, but I suppose there’s a difference between having a ‘fair idea’ and having conclusive evidence.

          Someone out here somewhere will know something. People that do things like that often need to brag to at least one other person about it. There’s always that egotistical side that needs a bit of a stroke.

          Reply

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