Duty to the client Confidentiality

Preamble of the PCPR: Practitioners should: Serve clients competently and diligently Be aware of the fiduciary nature of the relationship with their clients Free of any interest which may conflict with a clients best interests Maintain their confidentiality of all of the clients affairs

Rationale for Confidentiality Why, in general, should people ever be obligated to maintain confidentiality? Individual autonomy over personal information Respect for the secrets of intimates Pledge of silence Why, in particular, should lawyers be obligated to maintain the confidentiality of information communicated to them by clients? Encourage full and frank disclosure; Foster trust in lawyers and legal system; Remind lawyers of duty to clients. Public interest in confidentiality above and beyond ordinary confidentiality - Lawyers role as adversarial advocates in admin of justice LAWYERS OBLIGATIONS OF CONFIDENTIALITY General law Contract of retainer: all information received in the course of acting for the client. Fiduciary relationship, the equitable doctrine of confidentiality: information that is communicated for a limited purpose that is not public knowledge. Professional Conduct & Practice Rules 1 & 3 Information that is confidential to the client and acquired by the practitioners firm during the clients engagement (LPCC v Trowell) Client legal privilege: protection against mandatory disclosure to a third party with power to compel disclosure of information.

General Law Breach of Confidence

Information must have the necessary quality of confidence or secrecy about it; must have been disclosed in circumstances implying an obligation of confidence (implied in lawyer-client retainer); and there has been, or is a possibility of, unauthorised use of the information to the confiders detriment

Professional Conduct Rules

Duty to Client PCPR 1.1 Honesty and Confidentiality A practitioner must, in the course of engaging in legal practice, act honestly and fairly in clients best interests and maintain clients confidences. Confidentiality PCPR 3.1 A practitioner must never disclose to any person, who is not a partner proprietor director or employee of the practitioners firm, any information which is confidential to a client and acquired by the practitioner's firm during the client's engagement, unless: 1. Client authorises disclosure 2. Practitioner is compelled by law to disclose 3. Practitioner discloses info in circumstances in which the law would probably compel its disclosure, despite a client's claim of legal professional privilege, and for the sole purpose of avoiding the probable commission or concealment of a serious criminal offence 4. The info has lost its confidentiality 5. The practitioner obtains the information from another person who is not bound by the confidentiality owed by the practitioner to the client and who does not give the information confidentially to the practitioner LPCC v Trowell

Client Legal Privilege

Deane J on Client Legal Privilege A.G. (NT) v Maurice of great importance to the protection and preservation of the rights, dignity and freedom of the ordinary citizen under the law and to the administration of justice and law in that it advances and safeguards the availability of full and unreserved communication between the citizen and his or her lawyer and in that it is a precondition of the informed and competent representation of the interests of the ordinary person before the courts and tribunals of the land a bulwark against tyranny and oppression it is not to be sacrificed even to promote the search for justice or truth in the individual case extends to protect the citizen from compulsory disclosure of protected communications or materials to any court or person with authority to require the giving of information or the production of documents or materials. Dominant purpose test Protects from mandatory disclosure all confidential communications between solicitor and client made for the dominant purpose (Esso) of: (a) advice (advice privilege) (b) in preparation for litigation that is in reasonable contemplation (litigation privilege). Advice privilege: attaches to confidential communications between the client and his or her lawyer, made for the dominant purpose of enabling the lawyer to give legal advice (s118 Evidence Act) Litigation privilege: Confidential communications between the client/third parties and his or her lawyer, made for the dominant purpose of providing the client with professional legal services in relation to actual, pending or anticipated proceedings (s119 Evidence Act) Communications The communication must be confidential (in the general law sense, not the wider sense under the professional conduct rules). Must be communicated in context of lawyer-client professional relationship. For advice privilege, between lawyer and client. For litigation privilege, also communications with 3rd parties in preparation for litigation. May be waived by the client impliedly or expressly.

Distinguish Client Legal Privilege from Confidentiality Obligations General confidentiality much broader than the privilege. The privilege only extends to certain communications made for certain purposes . Confidentiality is an obligation owed by a lawyer to his or her client enforceable via the disciplinary system or the common law of equity and contract. Privilege is a protection available to the client (not to the lawyer) against ordinary legal processes in order to prevent them from having to disclose information that they would otherwise have been under a legal obligation to disclose.

EXCEPTIONS CLP / CONFIDENTIALITY

1. Client Authorisation The client may explicitly/impliedly authorise/consent to the disclosure: Evidence Act s 122 (CLP) / PCPR 3.1.1 (Confidence) Implied Authorisation Necessary incidental disclosures; Disclosure to partners and employees of firm in normal running of the matter Exception: if the info is clearly provided to a particular lawyer personally and exclusively 2. Legal Compulsion Confidence: A practitioner may be legally compelled to disclose confidential info: PCPR 3.1.2; BR 63 Privilege: a lawyer may be legally compelled to reveal privileged information if the statute clearly abrogates the CLP. As CLP is a fundamental right, any statutory abrogation must be in express and unambiguous terms: Baker v Campbell, Deane J

3. Avoiding Serious Criminal Offence Confidential or privileged info may (so thus discretionary on the lawyer) be revealed if: The law would probably compel its disclosure; and Communication is necessary for the purpose of avoiding the probable commission or concealment of a serious criminal offence: PCPR 3.1.3

CONFIDENTIALITY
1. Obtained info from another source If the lawyer received info from another source who disclosed the info not confidentially, then the lawyer wont be bound by the confidentiality owed by the practitioner to the client: PCPR 3.1.5 2. Public Knowledge Confidential info may no longer be so if the info is public knowledge and the purpose served by the confidentiality no longer exists: PCPR 3.1.4 Although the public may know cursory information, the lawyer was found to be in breach because he provided details and information that was not public knowledge. Court held that the comments made were scandalous and offensive and the breach was egregious because it was on national TV: LSC v Tampoe Confidentiality extends to info that is in the public knowledge, but only in an unauthorised sense . By the lawyer coming out and saying it, it gives the info more strength and reliability and give rise to the public believing its validity: LPCC v Trowell

3. Public Interest Confidential info may be revealed where: Its source is the equitable doctrine of confidence; and Does not apply to info that is confidential due to contract or privilege Disclosure would be in the publics interest The public interest in confidentiality must be outweighed by other public interests Burden is on lawyer very difficult to prove hardly ever been done in real life

4. Disciplinary Proceedings and Costs Disclosure may be allowed in response to an enquiry by a disciplinary body. For example, if it is necessary to establish or collect fees: LPA 2004, s 4.2.15

Client Legal Privilege

1. Inconsistent or Unfair Conduct Privilege can be lost if the client acts inconsistent with the exercise of that privilege: EA s 122(2) Examples of acting inconsistently is if the client knowingly and voluntarily disclosed the substance of the evidence to another person s 122(3)(a); or The substance of the evidence has been disclosed with the implied consent of the client or party: s 122(3)(b)

Consequences of unauthorised disclosure

Dal Pont suggests, citing MacDermott checklist to comply with Solicitors duty of confidentiality Embarrassment; Loss of clients; Damage to lawyers reputation; Conflict of interest allegations; Professional conduct complaints; Claims of breach of contract; Injunction to disqualify lawyer from continuing to act.