The Leader Column

Until recently, few lawyers outside the shipping wo-rld had ever heard of Jane Peaston. But her move from niche firm Jackson Parton to Richards Butler has sparked a train of events that could be calamitous for the legal profession.
The basic facts are these: Richards Butler acted for Ariadne Maritime against Koch Shipping, represented by Peaston at Jackson Parton. When she moved to Richards Butler, Koch argued that there could be a risk of inadvertent disclosure of confidential information, so Richards Butler made various undertakings to keep Peaston away from the case. Nevertheless, Mr Justice Smith – not known as the boldest judge in the world – went ahead with one of the most controversial decisions in years by ruling in favour of Koch and Jackson Parton. Richards Butler has since been replaced by Middleton Potts on the arbitration, but the firm is now appealing the judgment as a point of principle.
Law firms and chambers alike should get behind Richards Butler on this one. To start, there is an unpleasant assumption inherent in the Koch judgment that a departing lawyer would not have the wit to keep matters relating to a former client confidential. Indeed, while Peaston's integrity is not in dispute, Koch Shipping •Richards Butler can certainly be construed as an attack on the integrity of solicitors.
That's the emotional bit. More practically, the judgment militates against the free movement of lawyers – and not just partners either, since Peaston joined Richards Butler as a consultant. “When we hire partners, we already do a detailed investigation into potential conflicts,” notes a magic circle partner, adding in some panic: “If we had to do that for every lawyer we hired, it would be a nightmare.” In other words, a litigious client could easily use lawyer mobility as part of its tactical armoury in order to conflict out an opposing firm.
The bar has even more to fear. Koch threatens to demolish the consensus after Laker Airways •FLS Aerospace, where it was held that barristers could maintain adequate Chinese walls. Indeed, Koch could have a huge impact on the specialist bar, especially in areas such as shipping, libel and tax, where there are very few sets. It will mean that no barrister will be able to appear against anyone from the same set, which is something entirely unworkable in practice.
One can only hope that the Court of Appeal takes the pragmatic view this summer. In the meantime, Richards Butler should be applauded for its stand.