Lawyers for Marist Brothers face questions over advice to keep serial offender out of ‘legal arena’

Lawyers from a leading law firm for the Marist Brothers have been subpoenaed to explain a once-confidential document showing they advised the Catholic order to keep a serial offender out of “the legal arena”, suggesting he was too honest and might implicate senior church officials.

The offender was “regrettably up front” about his interactions with senior leadership, and could not be trusted to heed “suggestions” about “not dumping on others excessively”, the document says.

The Marist Brothers, a Catholic order, holds a shocking clergy abuse record and was found by the royal commission to have shuffled religious brothers across its network of Australian schools when complaints arose, allowing them continued access to children.

The order continues to face a string of civil claims from survivors, and is represented by major law firm Carroll & O’Dea, which has represented Catholic orders like the Marist and Christian Brothers for decades.

Now, one survivor has turned their scrutiny on to the conduct of Carroll & O’Dea itself, asking the ACT supreme court to issue subpoenas to individual lawyers to explain an explosive document in which the firm advised the head of the Marist order that a known offender should be kept away from legal processes because he has “high honesty and integrity levels” and might implicate senior church officials.

The case involves a survivor known as CQ who alleges he was abused by Brother Kostka Chute, or John William Chute, in 1985 and 1986 at Marist College Canberra. Chute is a serial offender who has attracted abuse complaints across Marist schools in Randwick, Bondi, Hunters Hill, Lismore, Coogee and Canberra.

CQ is alleging the Marist Brothers knew of abuse complaints against Chute but concealed them, something the order denies.

CQ’s lawyers this week resurfaced a once-confidential letter from Carroll & O’Dea to the then head of the Marist Brothers, Br Jeffrey Crowe, in 2009, penned after the lawyers visited Chute in Canberra’s jail.

The lawyers had gone to see Chute to better understand whether the Marist Brothers would be on the hook for civil claims relating to his abuse or whether it would be indemnified by the Catholic church’s insurance arm, a question that partly depended on whether it had prior knowledge of Chute’s offending.

The letter from Carroll & O’Dea advised Crowe that Chute was in “good form” but that he was: “Regrettably quite up front about various discussions with Provincials over the years including Br Charles, Br Quentin, Br Weldon. I think we will have some problems with indemnity in due course but not immediately.”

“Trouble is fundamentally he has high honesty and integrity levels and all of my ‘suggestions’ about not dumping on others excessively go out the window pretty quickly once there is a conversation under way.”

The lawyers advised the Marists that Chute – at that stage in jail for abusing six children – was not a “classic predator” and was a “good man with a fair bit of self-discernment”.

“We would need to keep him well away from the legal arena upon release,” the lawyers advised.

The airing of the contents of that letter caused significant issues in CQ’s case this week.

Porters Lawyers, the firm representing CQ, have subpoenaed two lawyers from Carroll & O’Dea to give evidence, and the court heard the move may raise potential issues alleging professional misconduct.

That required Carroll & O’Dea lawyers to themselves have legal representation and made its ongoing representation of the Marist Brothers impossible, because it would create a conflict of interest.

On Wednesday, Carroll & O’Dea told the court it would have to cease representing the Marist Brothers, causing a sudden halt to the trial and delays that will potentially stretch into next year.

The court also heard another matter against the Marist Brothers, also involving allegations against Chute, might be delayed.

Guardian Australia understands there are currently 15 cases against the Marist Brothers, represented by Carroll & O’Dea, involving Chute.

In a statement, the Marist Brothers said it could not comment because the proceedings were ongoing. A spokesperson said it expects the trial will resume “either later this year or in early 2027”.

Senior Marist Brothers have previously said that letter was sent as part of a chain of correspondence and was penned in the context of “serious doubts” about what Chute was claiming. The letter was examined in 2014 by the child abuse royal commission, which decided not to call its author to give evidence.

Crowe was asked about the letter at the royal commission, including whether it showed Chute was “seen as a liability that may impact upon the Marist Brothers and one that they need to sweep under the carpet”.

“I agree that he does give the impression there of some liability,” Crowe said. “However, I would also believe – because this, once again, is all part of another series of communications – that there were serious doubts as to the evidence being given by John Chute.”

Carroll & O’Dea was approached for comment.