Truth is hard to find in "AMP-GATE"

> 16 May 2018

By SEAN KELLY

I am confused.

A few weeks ago I posted an article which addressed the supposed independence of the now notorious report prepared by Clayton Utz at the request of AMP.

I said I did not think that anyone really believed Clayton Utz was independent in this instance. Since then, there have been some interesting (but confusing) developments.

Consider this:

On May 4, Jerome Doraisamy penned an article in Lawyers Weekly, titled, New AMP statement looks to absolve Clayton Utz.

Among other things, it stated:

"New comments from AMP today assert that advice received by Clayton Utz was indeed independent and not subject to influence, following suggestions to the contrary at the banking royal commission.”

On the same day, in the same article, the following statement was attributed to Mr Rob Cutler, chief executive of Clayton Utz:

"As AMP states, the report is an uncompromisingly direct and comprehensive 87-page review of the conduct of the advice business that could have only been of assistance to ASIC in its investigation, and to Counsel Assisting in preparing cross-examination,” he said.

"The report we prepared was for the AMP board and was the result of an extensive investigation which in fact identified much of the conduct referred to by the Commission.

"At no stage were the findings compromised, he declared, and the investigation was undertaken in accordance with terms of reference set by AMP.”

Two days later, on May 6, The Australian Financial Review published the article, AMP blames Clayton Utz for taking Craig Meller out of report into scandal.

In that article, which was written by Brendon Thorne, it states:

“AMP says it was law firm Clayton Utz and not former chairman Catherine Brenner who decided to exclude the name of the company's former chief executive Craig Meller from a controversial report into its fee-for-no-service scandal.

“One of the key accusations (at the banking royal commission) was that Ms Brenner asked for a line to be inserted in the report to make it clear that Mr Meller did not have any culpability in the scandal.

“But in a submission to the royal commission on Friday, AMP rejected this characterisation, saying Ms Brenner's "actions in relation to the report were appropriate and consistent with good governance".

"The instructions to Clayton Utz said that any matters concerning senior executives or board members were to be discussed with her, so she would naturally have some involvement in the back-and-forth.”

AFR followed up on the very next day with an article by Andrew Quilty, titled, AMP’s excuse on Clayton Utz independence is not good enough: experts. In that article, it was stated:

“AMP says its commercial arrangement with law firm Clayton Utz should have removed any expectations that a report into its financial planning scandals was strictly independent, but some experts have said that is not a valid excuse.”

“AMP's counter-argument is that the Clayton Utz report did not have to be "independent" within the meaning of ASIC Regulatory Guide 112 because Clayton Utz was one of a panel of firms that did paid legal work for it.”

So, the rigorous defence of the independence of the report seems to have changed to a rigorous defence of the report for not being independent.

As I said in my previous article, AMP has apparently waived legal professional privilege.  But this does not mean that everything has been laid bare. 

Legal professional privilege applies to communications between a lawyer and a client for the purposes of seeking or providing legal advice.

It doesn’t apply if there is any improper purpose.

The royal commission has heard that there were some 700 emails back and forth between AMP and Clayton Utz and 25 drafts of the report.

But what of the internal documents prepared by Clayton Utz?  There would have been numerous internal documents and communications. 

The Clayton Utz documents should be examined to ascertain exactly what went on during the preparation of the report.  For example, what changes were made and why - and did a solid foundation exist for each change?

This is the only way that the truth will be set free.  Press releases will not do it.

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