At this point in time, Adv. Nof had to deal with the issue, which was new to him. A quick examination would have revealed that the required payment date had not yet arrived . He should have replied to the applicants, at the very least, that they should refrain from payment, at this stage, until the matter was clarified with Ms. Or. He could have added that as long as they wish to advance the payment in order to assist the group, they will be able to do so, but at this stage there is no room to view the demand as binding, until further clarification is made; He should have contacted Ms. Or in order to get to the root of the matter, in view of the raising of demands in contravention of the agreement, and to contact the other members of the group for whom this demand is relevant.
It seems to me that this channel of action was obligated by virtue of being the representative of the purchasing group who is liable to it with fiduciary duties.
Attorney Nof refrained from doing so.
There is no dispute that he did not give a direct answer to those who asked for his advice. In his cross-examination, he testified that he replied that the answer to the question was found in the agreements and that he expressed himself in a "very, very clear" manner, and therefore there was no chance that the person who heard him actually paid (p. 828, Q. 4-7). Prior to that, he testified that he replied that the answer was in the agreements, and that he did not elaborate beyond that because he was obligated to Ms. Or, and that he was in a conflict of interest that prevented him from saying more than that (pp. 826-827). This is also what the defendants argued in their affidavits (see: paragraphs 277 and 284-284 in the affidavits of the two defendants). In any case, he did not reply to the group members that the demand was premature, and did not take additional steps on the team level.
- How did Adv. Nof explain his conduct? He pointed to the agreements, which contain clear provisions regulating a conflict between the interests of the group members and the interests of the group organizer.
Thus, provision 8.6.1 of the Partnership Agreement states that "the Participant acknowledges and agrees that he is aware that the lawyers are not representing him in the negotiations for the signing of this agreement, including the signing of any of its appendices, and that they do not provide him with any legal advice in connection with these documents. The Participant also confirms that he is aware that the Attorneys represent the Administrator and that where a dispute arises between the Participant and the Manager in connection with this Agreement or at all, then the Administrator will be represented by the attorneys" [emphasis added].