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Confidentiality Solicitor / client relationship 9. CONFIDENTIALITY ASCR 9.1 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: 9.1.1 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. Information / secrecy: A lawyer must not use confidential information otherwise than on behalf of the client. This applies even after the relationship is terminated • even if terminated inharmoniously, and • even if the client did not pay the bills, and • even if client is dead. The lawyer’s duty of confidentiality is – contractual requirements (Parry-Jones v Law Society [1969] 1 Ch 1 at 9), as well as – equitable (Seager v Copydex [1967] 1 WLR 923 at 931). • Recall the fiduciary nature of the relationship. Any information acquired from or for the client belongs to the client. • It is distinct from and has a different (though related) application from legal professional privilege which prevents lawyers testifying against their former or present clients. Consequences of failure to keep confidences: o injunction o breach of contract o breach of fiduciary duty o breach of confidence (equity) o professional misconduct - Striking off o account of profits

ASCR 10.2 A solicitor or law practice who or which is in possession of confidential information of a former client where that information might reasonably be concluded to be material to the matter of another client and detrimental to the interests of the former client if disclosed, must not act for the current client in that matter UNLESS: 10.2.1 the former client has given informed written consent to the solicitor or law practice so acting; or 10.2.2 an effective information barrier has been established. ASCR 11.4 …where a solicitor or law practice is in possession of confidential information of a client (the first client) which might reasonably be concluded to be material to another client’s current matter and detrimental to the interests of the first client if disclosed, there is a conflict of duties and the solicitor and the solicitor’s law practice must not act for the other client, except as follows: 11.4.1 … where each client has given informed consent to the solicitor acting for another client; 11.4.2 … where an effective information barrier has been established. BARRISTER CONFIDENTIALITY & CONFLICTS BR 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: (a) 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 (b) the person has consented to the barrister disclosing or using the information generally or on specific terms; or (c) the barrister discloses the information in a confidential setting, for the sole purpose of obtaining advice in connection with the barrister’s legal or ethical obligations. 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 … 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 … 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 the barrister is prohibited from disclosing or using unless the person entitled to the confidentiality consents ... 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: (a) all the clients in the case of confidentiality …; or (b) one or more of the clients so as to remove that possibility of conflict. Discipline Complaints: LPA S 428 Complaint may be made about lawyer or law practice employee. An entity may complain in the proper form (or at least in writing) to the commissioner: s 429 Commissioner may start an investigation: s 435(1)(c) Commissioner may • dismiss complaint, s 432 • refer to mediation if “consumer dispute”, s 440 • or may refer matter to Law Society or Bar Association to investigate s 435, or • investigate himself Commissioner can recommend mediation of consumer complaint and refer to reg body to assist. 440 Definition for pt 4.5

In this part—consumer dispute means a dispute between a person and a law practice about conduct of— (a) an Australian legal practitioner to the extent the commissioner considers that the dispute does not involve an issue of unsatisfactory professional conduct or professional misconduct; or (b) a law practice employee of a relevant practice to the extent the commissioner considers that the dispute does not involve an issue of misconduct in relation to the relevant practice. S 443: Investigative body has power to require answers. Failure to comply may result in penalty of 50 penalty units and – Body may in writing give 14 days to comply. If lawyer does not comply, guilty of professional misconduct. After investigation, matter may be referred to Practice Committee or Tribunal (QCAT): S 447 – decision S 448 – dismiss complaint S 452 – Start proceedings S 450: The commissioner must, under this Act, deal with complaints as efficiently and expeditiously as is practicable. S451 Commissioner must keep complainant informed S 452 Commissioner may apply – to Tribunal or Committee for orders against the legal practitioner; – to Committee re law practice employee Standards of Conduct

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LPA S 418 - “Unsatisfactory professional conduct” 419 Meaning of “professional misconduct” Relevance of “suitability matter”

Penalties - Orders by Tribunal LPA S 456 If lawyer is guilty of unsatisfactory professional conduct or professional misconduct (2) The tribunal may, under this subsection, make 1 or more of the following in a way it considers appropriate— (a) name be removed from the local roll; (and see s 461(3) (b) local practising certificate be cancelled or suspended; (c) local practising certificate not be granted until the end of a stated period; (d) an order that— (i) imposes stated conditions on the practising certificate granted or to be issued; and (ii) imposes the conditions for a stated period; and (iii) specifies the time, if any, after which may apply to the tribunal for the conditions to be amended or removed; (e) an order publicly reprimanding or, if there are special circumstances, privately reprimanding; (f) an order that no law practice in this jurisdiction may, for a period stated in the order of not more than 5 years—

(i) employ or continue to employ the practitioner in a law practice in this jurisdiction; or (ii) employ or continue to employ the practitioner in this jurisdiction unless the conditions of employment are subject to conditions stated in the order. 456 (3) The tribunal may, under this subsection, make 1 or more of the following — orders RECOMMENDING same as 2 a-d for interstate practitioner 456(4) The tribunal may, under this subsection, make 1 or more of the following— (a) an order that the Australian legal practitioner pay a penalty of a stated amount, not more than $100000; (b) a compensation order; (c) an order that the practitioner undertake and complete a stated course of further legal education; (d) an order that, for a stated period, the practitioner engage in legal practice under supervision as stated in the order; (e) do or refrain from doing something in connection with the lawyer engaging in legal practice; (f) stop accepting instructions as a public notary in relation to notarial services; (g) that engaging in legal practice is to be managed for a stated period in a stated way or subject to stated conditions; (h) that engaging in legal practice is to be subject to periodic inspection by a person

nominated by the relevant regulatory authority for a stated period; (i) order to seek advice from a stated person in relation to the lawyer’s management of engaging in legal practice. (j) an order that the practitioner must not apply for a local practising certificate for a stated period. 456 (5) To remove any doubt, it is declared that the tribunal may make any number of orders mentioned in any or all of subsections (2), (3) and (4). (6) Also, the tribunal may make ancillary orders, (7) The tribunal may find an individual guilty of unsatisfactory professional conduct even though the discipline application alleged professional misconduct. Penalties - Orders by Committee LPA s 458 (a) an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner; (b) an order that the practitioner pay a penalty of a stated amount, not more than $10 000; (c) a compensation order; (d) an order that the practitioner do or refrain from doing something in connection with the practitioner engaging in legal practice; (e) an order that engaging in legal practice by the practitioner is to be managed for a stated period in a stated way or subject to stated conditions;

(f) an order that engaging in legal practice by the practitioner is to be subject to periodic inspection by a person nominated by the relevant regulatory authority for a stated period; (g) an order that the practitioner seek advice from a person nominated by the relevant regulatory authority in relation to the practitioner’s management of engaging in legal practice. (3) … ancillary orders, including … payment … of expenses Penalties – Orders LPA s 464 Meaning of compensation order A compensation order is 1 or more of the following— (a) an order that a law practice can not recover or must repay all or a stated part of the amount that the law practice charged a complainant for stated legal services; (b) an order discharging a lien possessed by a law practice in relation to a stated document or class of documents; (c) an order that a law practice carry out stated work for a stated person without a fee or for a stated fee; (d) an order that a law practice pay to a complainant an amount by way of compensation for pecuniary loss because of conduct that has been found to be— (i) unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner involved in the relevant practice; or (ii) misconduct of a law practice employee in relation to the relevant practice.

S 458 (4) For a law practice employee, the committee may order that the law practice concerned and all other law practices in this jurisdiction must not, for a period stated in the order of not more than 5 years— (a) continue to employ or employ the employee in a law practice in this jurisdiction; or (b) employ or continue to employ the employee in this jurisdiction unless the conditions of employment are subject to conditions stated in the order. (5) In this section— law practice employee includes a person who was a law practice employee. Allows for filing of orders in Supreme Court so they can be enforced. S457, s 459 S 463 Preserves any other rights of complainant to bring action. Appeals: From Committee to Tribunal s 469 From Tribunal to Appeal Court s 468 From Committee to Appeal Court by leave s 470 Commissioner must publish details on website and may publish other ways s 472 , s 473 Personal misconduct • Ziems v The Prothonotary of The Supreme Court of NSW (1957) 97 CLR 279 - jailed for manslaughter • A Solicitor v The Council of the Law Society of NSW 2004 HCA 1 –

aggravated assault on girl-friend’s daughters 420 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct The following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct— (a) conduct consisting of a contravention of a relevant law; (b) charging of excessive legal costs in connection with the practice of law; (c) conduct for which a court has convicted an Australian lawyer of— (i) a serious offence; or (ii) a tax offence; or (iii) an offence involving dishonesty; (d) becoming an insolvent under administration; (e) becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act. (f) failing to comply with disciplinary order (incl not paying fine) (g) failing to comply with compensation order Professional Misconduct Dishonesty • Queensland Law Society Incorporated v Craig Stephen Bax, Court of Appeal, Appeal No 7088 of 1997 • The Council of the Queensland Law Society Inc v Wendy Ann Wright [2001] QCA 58 • Coe v NSW Bar Association [2000] NSWCA 13

Abuse of court process • White Industries; False counter-claim - $ order against firm; • Clyne -false allegations in opening case – struck off No win, no fee: • Baker Johnson v Jorgensen [2002] QDC 205; • Legal Services Commissioner v Michael Vincent Baker [2005] LPT 002. Serious offences – Lack of diligence • Law Society of New South Wales v Witherdin [2004] NSWADT 237 (Administrative Decisions Tribunal) • LSNSW v Veneris [2002] NSWADT 135. Failure to pay tax: Council of the New South Wales Bar Association v Archer (No 12) [2009] NSWADT 283 (13 November 2009) CASE SUMMARIES Proper charging practice – Clyne’s case (1960) 104 CLR 186 ‘Whether we regard [maintenance] as a crime or as a civil wrong only, it is obvious that, in relation to maintenance, special considerations must apply to a solicitor, since it is, in a sense, the business of a solicitor to maintain litigation for his clients. It would appear indeed to be impossible for a solicitor to be held, in relation to legal proceedings conducted for a client, to be guilty of maintenance except perhaps in two cases, one of which might amount to champerty. For a solicitor could hardly be guilty of a crime in respect of

conduct which is recognised by the law as perfectly proper professional conduct. ... ‘And it seems to be established that a solicitor may with perfect propriety act for a client who has no means, and expend his own money in payment of counsel’s fees and other outgoings, although he has no prospect of being paid either fees or outgoings except by virtue of a judgment or order against the other party to the proceedings. This, however, is subject to two conditions. One is that he has considered the case and believes that his client has a reasonable cause of action or defence as the case may be. And the other is that he must not in any case bargain with his client for an interest in the subject-matter of litigation, or (what is in substance the same thing) for remuneration proportionate to the amount which may be recovered by his client in a proceeding.’ Misconduct - Overcharging • In all circumstances, lawyers must only charge reasonable fees. As Kirby noted in Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, 422: • “Litigants look to this Court, ultimately, to protect them from over-charging by legal practitioners where this is so high as to constitute professional wrongdoing.

No amount of costs agreements, pamphlets and discussion with vulnerable clients can excuse unnecessary over-servicing, excessive time charges and over-charging where it goes beyond the bounds of professional propriety. Time charges have a distinct potential to result in overcharging.” • Pearless De Rougemount and Company v Stuart John Pilbrow CCRTI 98/1438/2 Court of Appeal (Civil Division) • QLSI v Stephen Francis Roche [2003] QCA 469 • In re Roche [2002] ACTSC 104 Pearless De Rougemount and Company v Stuart John Pilbrow CCRTI 98/1438/2 Court of Appeal (Civil Division) • Client saw person on basis of referral by receptionist on a family law matter. The client thought the person was solicitor when in fact she was a clerk. Subsequent action unsuccessful and dispute about whether account would be paid. • Court considered the false impression was the responsibility of the firm and involved a lack of training by receptionist. Court did not assume that different result would have been obtained if solicitor did legal work. • Court said: “This case is not properly to be analysed as a case of defective performance of a contract for legal services with a term that these should be performed by a solicitor. I categorise it as one of non-performance of a •

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contract to provide legal services by a solicitor. In my judgment a firm of solicitors which is asked for a solicitor and, without telling the client that the advisor is not a solicitor, provides an advisor who is not a solicitor should not be entitled to recover anything.” Result: Firm not entitled to enforce this payment of costs and charges. Overcharging may be found where the client is billed: for unnecessary work; on a flat hourly fee, regardless of which employees of the firm carry out the work; interest on disbursements – even where these are not out-of-pocket (eg file opening administration charge); for work on a standard basis without consideration of the particular case (eg per page photocopying fees); after recovery in a no-win-no-fee case, where the client recovered no more than outlays incurred; for work necessarily duplicated by new lawyers, although the original lawyer terminated the contract for good cause (for example on discovery of a conflict); pursuant to a contract which was not fully explained to a client, or which the client was pressured to accept.

QLSI v Stephen Francis Roche [2003] QCA 469 • Allegation of failure to discharge fiduciary obligations in signing a retainer agreement and gross overcharging. Client was asked to sign a new retainer agreement that substantially increased the charge out rate and included three fold increase in charge out rate on paralegal work completed. Practitioner did not point out more limited ability to increase fees under earlier agreement and did not provide to client impact of increase in fees on overall fees charged. • Held: Lack of full and frank disclosure of all relevant information in relation to agreement and failure to invite client to seek independent advice. • Overcharging – noted charge of $156 for wrapping and planning of purchase of box of chocolates for doctor’s secretary who facilitated correcting of a report. Court confirmed tribunal finding that costs were exorbitant based on matters such as $300 per hour for paralegal work + 30% uplift. • Result: Suspended for 12 months. • “The circumstance that a solici...