As the 1960s sitcom Get Smart makes its way back into popular culture with the release of the film adaptation starring Steve Carrell, it is amusing to note that the series has also had an unlikely impact on legal discourse. In both Canadian and American legal briefs and court rulings, the idea of the ‘cone of silence’ – which never worked on the show - is discussed earnestly and interchangeably with another metaphor with an interesting lineage – ‘Chinese walls.’
“… The courts in the United States have generally adopted the stricter ‘possibility of real mischief’ test. According to this approach, once it is established that there is a ‘substantial relationship’ between the matter out of which the confidential information is said to arise and the matter at hand, there is an irrebuttable presumption that the attorney received relevant information. If the attorney practises in a firm, there is a presumption that lawyers who work together share each other’s confidences. Knowledge of confidential matters is therefore imputed to other members of the firm. This latter presumption can, however, in some circumstances, be rebutted. The usual methods used to rebut the presumption are the setting up of a ‘Chinese Wall’ or a ‘cone of silence’ at the time that the possibility of the unauthorized communication of confidential information arises. A ‘Chinese Wall’ involves effective ‘screening’ to prevent communication between the tainted lawyer and other members of the firm. A ‘cone of silence’ is achieved by means of a solemn undertaking not to disclose by the tainted solicitor. Other means which would constitute clear and convincing evidence that no improper disclosure has or can take place are not ruled out.”
Here’s to hoping we may see a shoe phone reference the next time a telecom matter is before the court.