#13084 - Duty To The Client Confidentiality - Ethics

Duty to the Client: Confidentiality

• Differences between sources of the two

  • Sources

    • Confidentiality: Contract of retainer; Fiduciary relationship; Equitable doctrine of confidentiality; ASCR and LPCRB

    • Privilege: Public policy; Evidence Act

  • Scope

    • Confidentiality:

      • Contract: all information received in the course of acting for the client (subject to exceptions and may change status when retainer ends)

        • Doesn’t necessarily have to be a client at that stage (as long as the communication is made for purpose of litigation)

      • Equity: Information that is communicated for a limited purpose and is not public knowledge (more limited in scope, but likely to continue after retainer ends)

    • Privilege

      • Subset of confidentiality information

      • Must be a confidentiality communication made for dominant purpose of obtaining legal advice, or for use in current or anticipated litigation Esso v CMR of Taxation 2000

        • Documents brought into existence with the dominant purpose of obtaining legal advice or to conduct or aid in the conduct of litigation will be privileged Esso

      • Communications directed against the public interest are not protected

  • Consequences of the obligation

    • Confidentiality: Confidential information is not protected from disclosure in court proceedings

    • Privilege: privileged information is prevented from all forms of compulsory disclosure (exception: statutory abrogation)

• Client Legal Privilege (privileged information is prevented from all forms of compulsory disclosure)

  • Client legal privilege “is not to be sacrificed even to promote the search for justice or truth in the individual case” Deane J in AG (NT) v Maurice 1986

  • It is a fundamental common law principle, not just a rule of evidence Baker v Campbell (1983) 153 CLR 52

  • Privilege under the Evidence Act

    • S 118: Legal advice

      • Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—

        • a confidential communication made between the client and a lawyer; or

        • a confidential communication made between 2 or more lawyers acting for the client; or

        • the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person—

      • for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

    • Sect 119: Litigation

      • Evidence is not to be adduced if, on objection by aclient, the court finds that adducing the evidence would result in disclosure of—

        • aconfidential communicationbetween theclientand another person, or between alawyeracting for theclientand another person, that was made; or

        • the contents of aconfidential document(whether delivered or not) that was prepared—

      • for the dominant purpose of theclientbeing provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which theclientis or may be, or was or might have been, aparty.

    • s.131A: Pre-Trial Processes

      • Privilege may be claimed in relation to:

        • A summons or subpoena to produce documents or give evidence;

        • Pre-trial discovery;

        • Non-party discovery;

        • Interrogatories;

        • A notice to produce;

        • A request to produce a document under Division 1 of Part 4.6;

        • A search warrant

    • Client can waive privilege by disclosing the information or authorizing the lawyer to disclose it

• Duty of confidence: Confidential information (confidential information is not protected from disclosure in court proceedings)

  • Lawyers are subject to a duty to maintain inviolate clients’ confidences Baker v Campbell

    • This duty can extend past the retainer

  • Is it confidential information?

    • Information about a client’s matter communicated to a legal practitioner in a professional capacity will be presumed to be confidential. Information that they would not have had ‘but for’ their relationship. Once that relationship is established, the duty extends to information acquired prior to that. LPCC v Trowell [2009] WASAT 42

      • Just because confidential information is in the public domain, confirmation by a legal practitioner is still breach as it gives the public information a credible status LPCC v Trowell

Confidential information is not confined to the spoken word or written communications.

• Confidential information includes impressions of character, personality and attitudes that could be used to the advantage of a current client

• The court is not only interested in the stuff that is written down; the court is interested in knowledge generally ? Knowledge of how the client thinks, how they act in litigation (whether they are likely to argue/settle) and how they will perform on the stand can be considered confidential information

  • In Yunghanns case Gillard J called these the ‘getting to know you’ factors & said that the overall opinion formed by a solicitor of a client may amount to confidential information

  • “The overall opinion formed by a solicitor of his client as a result of his contact may in the circumstances amount to confidential information that should not be disclosed or used against the client.” (per Gillard J Yunghanns v Elfic)

• Confidentiality under ASCR

  • A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person who is not: 9.1 ASCR

    • 9.1.1 a solicitor who is a partner, principal, director, or employee of the solicitor’s law practice; or

    • 9.1.2 a barrister or an employee of, or person otherwise engaged by, the solicitor’s law practice or by an associated entity for the purposes of delivering or administering legal services in relation to the client, EXCEPT as permitted in Rule 9.2.

  • 9.2 A solicitor may disclose confidential client information if:

  • 9.2.1 the client expressly or impliedly authorises disclosure; 9.2.2 the solicitor is permitted or is compelled by law to disclose;

  • 9.2.3 the solicitor discloses the information in a confidential setting, for the sole purpose of obtaining advice in connection with the solicitor’s legal or ethical obligations;

  • 9.2.4 the solicitor discloses the information for the sole purpose of avoiding the probable commission of a serious criminal offence;

  • 9.2.5 the solicitor discloses the information for the purpose of preventing imminent serious physical harm to the client or to another person; or

  • 9.2.6 the information is disclosed to the insurer of the solicitor, law practice or associated entity

• Confidentiality under LPCRB

  • 108. A barrister must not disclose (except as compelled by law) or use in any way confidential information obtained by the barrister in the course of practice concerning any person to whom the barrister owes some duty or obligation to keep such information confidential unless or until:

    • the information is later obtained by the barrister from another person who is not bound by the confidentiality owed by the barrister to the first person and who does not give the information confidentially to the barrister; or

    • the person has consented to the barrister disclosing or using the information generally or on specific terms.

  • 109. A barrister must not disclose (except as compelled by law) or use confidential information under Rule 108(b) in any way other than as permitted by the specific terms of the person’s consent.

  • 110. A barrister will not have breached Rules 108 and 109 simply by showing briefs to or disclosing information contained in a brief to the barrister’s instructing solicitor in the matter, to a member of the barrister’s staff for the purposes of that person undertaking clerical or administrative work in relation to the matter, or to a reader or to another barrister doing work as permitted by Rule 107.

  • 111. A barrister who is shown a brief as a reader or under an arrangement covered by Rule 107 is bound by the same duties of confidentiality which bind the barrister whose brief it is, including the duties imposed by Rule 108 and 109.

  • 112. A barrister must return a brief other than a brief to appear as soon as possible after the barrister becomes aware that the barrister has information confidential to a person other than the client which may, as a real possibility, be material to the client’s case or to the advancement of the client’s interests, being information which the barrister is prohibited from disclosing or using unless the person entitled to the confidentiality consents to the barrister disclosing or using the information as the barrister thinks fit.

  • 113. A barrister who is briefed to appear for two or more parties in any case must determine as soon as possible whether the interests of the clients may, as a real possibility, conflict and, if so, the barrister must then return the brief for:

    • all the clients in the case of confidentiality to which Rule 108 would apply; or

    • one or more of the clients so as to remove that possibility of conflict.

  • 114. A barrister who believes on reasonable grounds that the interests of the client may conflict with the interests of the instructing solicitor, or that the client may have a claim against the instructing solicitor, must:

    • advise the instructing solicitor of the barrister’s belief; and

    • if the instructing solicitor does not agree to advise the client of the barrister’s belief, seek to advise the client in the presence of the instructing solicitor of the barrister’s belief.

  • 115. A barrister shall not give an undertaking to the court on behalf of a solicitor or a client without express authority of the...