clapton, since you've chosen to press the issue in those terms…
I'm guessing by your misconceptions in respect of conflicts of interest that you have little or no experience in private practice.
If I were an external lawyer giving an agency advice on whether its CEO or equivalent breached the law and, if so, whether those breaches should be referred to the DPP in accordance with applicable policies and procedures, I wouldn't care less whether the agency or the CEO liked or didn't like the advice and was inclined to execute me as the messenger. External lawyers have lots of clients. I'd be better off not having a client with a CEO like that anyway.
In-house lawyers have one client: their employer. If they upset the person who makes the hiring and firing decisions and the person executes the messenger, the lawyer doesn't have a job. Therefore, if the in-house lawyer is asked for advice on whether the person who makes the hiring and firing decisions has breached the law and, if so, whether those breaches should be referred for prosecution in accordance with applicable policies and procedures, that lawyer has a patent conflict of interest in advising on those questions, notwithstanding that the lawyer has 'high ethical standards' and 'professional integrity'. Indeed, and ironically in the context of this discussion, it would be both of those characteristics that should lead that lawyer to refuse to act on instructions to advise on those questions, on the basis of that conflict.
The difference is obvious, at least to me.
There are circumstances in which a lawyer is not permitted to act, even though the lawyer may have unquestionably 'high ethical standards' and 'professional integrity'. If 'high ethical standards' and 'professional integrity' were enough, there would be no law or practice rules about conflicts of interest.
Judges are chosen because they have 'high ethical standards' and 'professional integrity', but they nonetheless stand aside in matters in which they have, or are reasonably perceived as having, bias in the matter. That's not a slur on their ethics, integrity or competence.
But let's assume I'm seeing a difference that doesn't exist. Walk me through the nuts and bolts of this, clapton. If the General Counsel of CASA is asked to advise on whether the CEO breached the law and, if so, whether those breaches should be referred to the DPP in accordance with applicable policy, who is the General Counsel's client? In acting in that matter, to whom does the General Counsel owe his or her fiduciary duties, including the duty of confidentiality? Whose interests is the General Counsel obliged to promote and protect? Does CASA spend money on external lawyers to promote and protect CASA's interests, or to promote and protect the CEO's interests?
If your view is that the CEO's and CASA's interests are, in those circumstances, one and the same, that would explain a lot.
Any objective analysis of my postings on pprune will demonstrate that I am very interested in facts, and I try very hard not to let my prejudices or emotions get in the way of sorting the fact from the fiction. However, I'm only human. So are you. You seem to be emotionally attached to this one. You even quoted a press release as if what it said was necessarily fact.
I haven't suggested that Tom Sherman is stupid or incapable of working out the real facts.
Let's test your objectivity in the circumstances: If Mr Toller committed a technical breach of CAR 282(1) by taking the controls of a Cessna Caravan, even though he was not endorsee for the aircraft type, do you agree that those circumstances would also constitute a technical breach of CAR 228(1)?
For the info of readers, CARs 228(1) and 282(1) said, respectively:
228(1) A person must not manipulate the controls of an aircraft in flight if the person is not either:
(a) the pilot assigned for duty in the aircraft; or
(b) a student pilot assigned for instruction in the aircraft.
…
282(1) A person shall not, if the person is not specially permitted by or under these regulations, perform any duty or exercise any function or do any act for which:
(a) a licence;
(b) a certificate; or
(c) a rating or other endorsement on a licence or certificate;
is required under these regulations, without holding:
(d) the appropriate licence or certificate; or
(e) a licence or certificate containing the appropriate rating or other endorsement.
Simple question, clapton: a technical breach of one regulation, or a technical breach of two regulations?