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Confidentiality & Privileged Information: It belongs to you!

By 6 December 2018General

In the wake of the “Lawyer X” scandal, it serves as an appropriate reminder that client information (your information) is confidential and privileged on all accounts.

It belongs to you and cannot be disclosed to anyone without your express permission.

The “Lawyer X” scandal involves a Victorian criminal defence lawyer turned police informant who is alleged to have divulged confidential and privileged information relevant to some of her clients, some of whom are “big game” criminals currently serving jail time.

In divulging such information, it has been revealed that hundreds of criminal cases may be compromised and that those convicted persons currently serving time may have a right of appeal.

Whilst much of the focus has been placed on the lawyer involved, the Victorian Police have also been caught up in this scandal as it appears that they were accepting tainted evidence and not properly fact checking the evidence.

Consequently, Victoria is calling for a Royal Commission into the “underworld lawyer scandal”.  We will just have to wait and see what the commission’s findings may be.

However, in the wake of this breaking and scandalous news headline comes a serious question regarding the lawyer-client relationship.

If you engage a lawyer, that lawyer works for you.  They advise you on the law and perform various tasks upon your instructions.

A lawyer ultimately has a duty and a responsibility to act in your best interests as well as to keep any and all of your information confidential and not disclose it to anyone unless you expressly instruct them to do so.

Lawyers are bound by a stringent ethical code of conduct, the Australian Solicitors Conduct Rules (ASCR). It is one of the main sources from which lawyers derive such guidance for their everyday practice.

A lawyer’s role is made up of several duties, the first of which is derived from the notion that a lawyer is, first and foremost, an offer of the court.  The ASCR outlines a number of fundamental duties which include:

  1. A solicitor’s paramount duty is to the court and the administration of justice (this duty prevails over every other duty where there is an inconsistency);
  2. A solicitor must act in the best interests of a client in any matter;
  3. A solicitor must be honest and courteous;
  4. A solicitor must deliver legal services competently, diligently and as promptly as reasonably possible;
  5. A solicitor must avoid compromise to their integrity and professional independence; and
  6. A solicitor must not engage in conduct during the course of their practice which demonstrates that they are not a fit and proper person to practise law of which is likely to be:
    1. Prejudicial to, or diminish the public confidence in, the administration of justice; or
    2. Bring the profession into disrepute.

The ASCR also outlines the rules regarding a solicitor’s responsibility to not disclose any information which is bound by client confidentiality, and ultimately treated as privileged information, obtained during the course of their engagement with that client.

There are however some exceptions to the duty to guard confidential information, which include:

  1. when the client has expressly or impliedly authorised disclosure;
  2. when the solicitor is permitted or is compelled by law to disclose;
  3. when 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;
  4. when the solicitor discloses the information for the sole purpose of avoiding the probable commission of a serious criminal offence;
  5. when the solicitor discloses the information for the purpose of preventing imminent serious physical harm to the client or to another person; or
  6. when the information is disclosed to the insurer of the solicitor, law practice or associated entity.

Ultimately, a solicitor must act in your best interests and in doing so must keep your information confidential unless you tell them to disclose it.

In the wake of the Lawyer X scandal, it is hard to comprehend the magnitude and severity of the breach of trust that underpins the lawyer-client relationship, regardless of the people involved.

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