Confidentiality - Lecture notes 5 PDF

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MLL235 Legal Practice and Ethics Topic 3C- Duties owed to clients (Confidentiality) Sourced in: - Contract- implied term in retainer - Equity- protects confidential information from unauthorised use and disclosure - Rule 9.1 SCR 9. Confidentiality: 9.1- A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the clients engagement to any person who is not: 9.1.1- A solicitor who is a partner, principal, director or employee of the solicitors law practice 9.1.2- A barrister or an employee of a person, engaged by the solicitors 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 -

Obligation on lawyers not to reveal clients information (Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501) or misure it (Prince Jeffri Bolkiah v KPMG (!999) 2 AC 222) o Obligation cannot be reduced by duty owed to another client (Hilton v Baker Booth & Eastwood {2002} Lloyds Rep PN 500) o Duty owed to former clients and may be owed to other third parties - Designed to encourage full and frank disclosure between lawyer and client and maintain public confidence in the legal system Risks to confidential information: o Communications by fax o Communications by email o Mobile phone communications o Communication via social media o Communications with family and friends - Not all information communicated by a client to a lawuer is confidential (Australian Commercial Research & Development Ltd v Hampson (1991) 1 Qd R 508) - No set test- will depends of the cirucmstances - General Proposition: Information must have been confidential to client at the time it was communicated (D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118)  Must be facts and circumstances to indicate that the information should be kept confidential and secret Objective test: Would a reasonable person, in the shoes of the recipient of the information, have realised on reasonable grounds that the information was being provided in confidence (Mense v Milenkovic {1973} VR 784) - Applicant needs to show (H Stanke & Sons Pty Ltd & Cape Banks Processing Company Pty Ltd v Von Stanke (2006) 95 SASR 425) o Information had ‘necessary quality of confidence’ o Was imparted in cirucmstances that import an obligation of confidence o Disclosure would be detrimental to the applicant

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Exceptions to the Duty of confidentiality: Commonly referred to exceptions: - Client consent - Information that is public knowledge - Disclosure is compelled by law - Matters incidential to normal conduct of retainer - Criminal matters - Clients intention to disobey a court order - Defence to disciplinay or legal proceedings - To substitute entitlements to remuneration - Public interest exception - Obtaining advice in relation to legal or ethical obligations EXCEPTION: CLIENT GIVES CONSENT TO DISCLOSURE OF CONFIDENTIAL INFORMATION (RULE 9.2.1 SCR) 9.2: A Solicitor may disclose information which is confidential to a client if: 9.2.1: the client expressly or impliedly authorises disclosure - Have implied authority to: o Make disclosure in the best interest of the client for the purpose of retainer o Make disclosure to partners or employees in the firm - Woulc need authorisation to get advice from (expert or barrister) Once have authorisation to engage, can disclose (Rule 9.1.2 SCR) EXCEPTION: Information is in the public domain: - Careful- lawyer may know more than what is public domain EXCEPTION: Disclosure is compelled by law - Rule 9.2.2 SCR- A solicitor may disclose information which is confidential to a client if the solicitor is permitted or compelled by law to disclose - Disclosures are restricted in scope EXCEPTION: Criminal Matters: - For the purpose of avoiding the probable commission of a serious criminal offence/preventing imminent serious physical harm to someone Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015: 9.2 A solicitor may disclose information which is confidential to a client if: 9.2.4 The Solicitor discloses the infomraiton for the sole purpose of avoiding the 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 EXCEPTION: client’s intention to disobey a court order - Need to believe on reasonable grounds clients condict is a threat to a persons safety Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 20.3: A soliciros whose client informs the solicitor that the client intends to disobey a courts order must: 20.3.1 advice the client agains the course and warn the client of its dangers 20.3.2 not advice the client how to carry out or conceal that course 20.3.3 Not inform the court or the opponent of the clietns intention unless: i) The client had authorised the solicitor to do so before hand ii) The solicitor believes on reasonable grounds that the clients conduct constitutes a threat to any persons safety 2

EXCEPTION: Disclosure of substantiate claim for remuneration - Where account unpaid, lawyer can disclose retainer in order to prove debt EXCEPTION: Disclosure is in the publics interest - Onus on lawyer to prove - Would not protect from breach of contract in any event EXCEPTION: Obtaining advice in relation to legal or ethical obligations - 9.2.3 The solicitor discloses the information in a confidential setting, for the sole purpose of obtaining advice in connection with the solicitors legal or ethical obligations Breach of duty of Confidentiality: - Actionable by client: o If disclosure has not occurred- injunction (Rakusen v Ellis, Munday and Clarke {1912} 1 Ch 831) o Breach of contract- damages o Equity- damages, account of profits o Order for delivery and destruction of material containing confidential infomraiton - Breach of professional ethics- disciplimary proceedings - May lead to a royal commission to address the issue Legal Professional privilege: - Certain Communications arising out of lawyer-client relaitonships are protected from compulsory disclosure o Common Law Right- Fundamental (Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543) o Is absolute and unqualified (Carter v Managing partner, Northmore Hale Davy & Leake (1995) 183 CLR 121) - Based on public policy- full and frank disclosure- trust and candour- maintain public confidence in administration of justice - Interaction with duty of confidentiality? o Duty of confidentiality covers a wider range of communications than professional privilege o Privilege does not depend on contract, equitable or professional duties owed to clients o Privileged information is generally protected from all forms of compulsory disclosure where as confidential information must be disclosed if required by law - Client cannot contract to extend scope of privilege (Southern Cross Commodities Pty Ltd v Crinis (1984) VR 697) - Does not extend to protect communications contrary to public interest (R v Bell (1980) 146 CLR 141) - Privilege belongs to the client (Attorney-General (NT) v Maurice (1986) 161 CLR 475) o So only the client can waive this privilege o Does not die with the client (Chant v Brown (1849) 68 ER 32) o Survices the termination of the retainer (Daniels Corporation International Pty Ltd v ACCC (2002) o Joint Clients- privilege belongs to all so must waive - Applied in respect of all forms of compulsory disclosure] 3

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Two types of privilege  Advice privilege  Litigation privilege Advice Privilege: - Confidential communications between the client and lawyer (either directly or through their agents) and between the lawyer and third parties for the purpose of giving/obtaining legal advice are protected (Sommerville v ASC (1995) 60 FCR 319) Evidence Act 2008 (VIC) 118) Legal Advice Evidence is nto to be adduced, if on objection by the client, the court finds that adducing the evidence would result in disclosure of(a) A confidential communication made between the lawyer and client (b) A confidential communication made between two or more lawyers acting for the client (c) The contents of a confidential document prepared by the client, lawyer or another For the purpose of dominant purpose of the lawyer, providing legal advice to the clients. Litigation privilege: - Confidential communications made (between lawyer and client or lawyer and third parties) for the purpose of use in existing or reasonably anticipated litigation are protected (ACCC v Aust Safeway Stores & Others (1998) 81 FCR 526) - Litigation must be more than a mere possibility (Mitsubishi Electric Australia Pty Lt v Victorian Workcover Authority (2002) 4 VR 332) - Can be likely even before begin to gather evidence - Carrying out investigations into events/facts will not automatically mean communications were for the purpose fo use in anticipated litigation (Brunswick Hill Apartments Pty ltd v CGU Insurance Ltd (2010) ANS Ins Cas 61-870) - Witness Statements: o Privilege applies to witness statements (Sanko Steamship Co Ltd v Sumitomo Australia Ltd (1992) 37 FCR 353) o Will apply to communications between expert lawyer when made for the purpose of confidential use in litigation (Interchase Corp v Grosveor Hill (QLD) (1991) 1 QD r 141 - Communications with or from third partieso Agents of a client: Communications to or from third parties acting as agents of a client may be protected o Agents of the lawyer: privilege extends to any communications made through the agents of the lawyer (Trade Practices Commissioner v Sterling (1979) 36 FLR 244) Privileged information: - Communications of a confidential nature from a lawyer to a client or vice versa touching the subject matter of a retainer are prima face privileged (Dallaeagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325) - Privilege does not extend to all communications made between a lawyer and a client - Needs to be a purpose of advice for purpose of use in existing or reasonably anticipated litigation FOR COMMUNICATION TO BE PRIVILEGED: 1) Be confidential - Ritz Hotel Ltd v Charles of Ritz Ltd (No 22) (1988) 14 NSWLR 132 o Context and proposed use relevant 4

o Disclosing in presence of third parties may not undermine the confidential nature of the communication and the document (Australian Rugby Union v Hospitality Group (1999) 165 ALR 253 cf Gotha City v Sothebys (1998) 1 WLR 114) 2) Be between a lawyer and client- lawyer acting in professional capacity o Must be fairly referable to relationship o Not privlileged – unrelated to provision of legal services; communications made in social context o Communications between lawyer and prospective clients can be privileged (Minter v Preist (1930)- where client believed retainer existed o Privilege may arise where person is not actually a lawyer, up until client becomes aware of this fact (grofam pty ltd v anz banking group ltd (1993) 45 FCR 445 o Normally denied to unrepresented individuals but note s120 evidence act 2008 3) Meet the dominant purpose test o Communications must have been made with the dominant purpose of legal advice or anticipated litigation o Onus on party claiming privilege (Waterford v Commonwealth (1987) 163 CLR 54) o Relevant time for determination is at the time of the communication and creation of document o Non-privileged information will be severed from privilege information if possible (Actew Corporation Ltd v Mihaljevic {2007] ACTSC 39

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