The advice in the following article relates primarily to the law in New South Wales. Interstate readers will need to make their own enquiries in order to ascertain whether the legal situation is the same in their jurisdiction.
Most of you are probably aware that when you disclose information to a legal practitioner, (a solicitor or barrister), that there is a duty of confidentiality between that practitioner and you, the client. Everything seems very straight forward then but is that duty absolute? Are there circumstances in which this duty does not apply? Is it all as clear cut as it appears to be at first instance?
The duty of client confidentiality is not absolute. It does not apply if you expressly authorize the disclosure, that is, you are entitled to tell the practitioner that she or he may disclose certain information to someone else. If these are your instructions, then it is very likely that you will be asked to put that information in writing. It is also worth noting that if you make a complaint about a practitioner then you are taken to have waived privilege, this is because without this presumption, it would not be possible for the practitioner to defend either his or herself from the allegation made by the client.There are other circumstances in which the duty of confidentiality does not arise. One of the circumstances in which there is no duty of confidentiality is where a practitioner is either permitted by law, or compelled to disclose information.
There are some Acts that expressly override the duty of confidentiality an example of this would be under the Commonwealth Crimes Act where there has been an act of terrorism. If in doubt as to whether information is confidential or not, ask the practitioner under which conditions they would be compelled to disclose information but by that stage the cat is out of the bag.
The third exception to the rule, is where there are circumstances where the practitioner discloses information in circumstances in which the law would compel its disclosure even against a claim of legal or professional privilege. What sort of circumstances would compel the disclosure of this information that is otherwise privileged? This exception arises in circumstances where the information is disclosed for the purposes of preventing the probable commission of a felony. A felony is the sort of crime that used to attract the death penalty. An example of this would be murder, armed robbery and treason. The rule here is don’t threaten to commit felonies and certainly don’t commit felonies!
The operant question is when does this duty of confidentiality arise? Is there only a duty of non-disclosure when there is an agreement between the practitioner and client, or does it arise prior to that? A practitioner who presumes that information acquired outside the retainer does not attract the duty of confidentiality takes a significant risk[i]. It may well be that the client is incapable of distinguishing those communications that are legally relevant from those that are not[ii]. The client may falsely believe that any information given to the practitioner is confidential[iii]. It may be difficult even for the practitioner to discern which aspects of the communication attract privilege[iv]. There is an inherent equitable prohibition on using information communicated in confidence[v].
None of this information really solves the problem of working out when something is confidential because it falls within the scope of legal professional privilege or not. The statement of principle is that usually information given to a legal practitioner with a view to taking legal action of some sort is privileged but that some is not. The courts in determining whether a duty of confidentiality arises take the perspective of the expectation of a reasonable client, that is, would a reasonable client expect that this information communicated to a solicitor to be treated as confidential in the circumstances? The law is more on your side here than on the side of your practitioner but given that the duty is so difficult to determine that doesn’t get you very far!
The next hurdle is to determine when this duty arises. It may well be that you decide to go to solicitor A with a view to getting that practitioner’s firm to deal with your family law matters. During the course of communication with solicitor A you inform that practitioner of some fact that would normally have to remain confidential under the doctrine of solicitor-client confidentiality but you then decide that you would do better to either move to another firm and instead deal with solicitor B, deal with the matter as a self-represented litigant or simply not to proceed. The question then arises as to whether the information disclosed to solicitor A remains confidential if you do not proceed with the matter with solicitor A.
The duty of confidentiality is based in contract, that is, the retainer but it may well be that there is a duty of confidentiality that arises outside of this contractual obligation. It may well be that the practitioner owes a duty of confidentiality to a non-client where there is a duty of non-disclosure attached. As we have said there is an equitable doctrine of non-disclosure. None of this gets us very far! The general rule is that unless there is an overriding duty on the part of the practitioner to disclose information, then you are likely to be able to rely on the duty of non-disclosure in most instances in order to protect your information.
Probably, the best solution is to enter into a Costs Agreement with a firm of solicitors even if only for a nominal amount as this makes it very clear that a solicitor-client relationship exists. You don’t want to be in the position of having to take legal action to ensure the privileged nature of your journal.
[i] Riley Solicitors’ Manual Dal Pont, GE LexisNexis 2005 (Revised Edition) para 8040
*Rochelle Macredie is a Solicitor in NSW working with McKenzie Friends. She practices with the Sydney firm Oliveri Attorneys and can be contacted on 0407 896 832 or by email at rochellelawyer (at) gmail.com