Ethics FAQs - Confidentiality and Privilege

Section 3 of the Solicitors Rule 2007 states that you must never disclose to any person who is not a partner or employee of your law practice, any information which is confidential to a client and acquired by you or your practice during the retainer.  ‘Employee’ is defined in Schedule 2 of the Legal Profession Act 2007 as: ‘Employee of an entity, means a person who is employed or engaged under a contract of service or a contract for services in or by the entity whether or not (a) the person works full-time, part-time, or on a temporary or casual basis; or (b) the person is a law clerk or article clerk’.  This definition applies to the Solicitors Rule 2007.

Confidential information is any information that is provided by a client in confidence. This will often be all the information on a file.  This is the safest approach to adopt if there is any doubt.

The duty of confidentiality exists to potential clients or ‘enquirers’; people with whom you have an initial discussion or consultation but who do not go on to instruct you, or you refer to someone else, or for whom you decline to act (as is your right).

 These are set out in s 3 of the Solicitors Rule 2007 and include:

• the client authorises disclosure
• where you are permitted or compelled by law to disclose the information
• to avoid the commission of a serious offence
• the information has lost its confidentiality
• to prevent serious physical harm to someone.

That the client has died is not an exception. The duty survives the client’s death and is then owed to the deceased’s estate, and authority to disclose confidential information may be sought from the personal representatives.

The end of the retainer is also not an exception.  It is clear that this duty outlives the retainer, and the rule specifically says you must never disclose the confidential information.

This is one of the exceptions to the duty of confidentiality.

The Solicitors Rule 2007 states that a client’s confidentiality may be breached if the disclosure of the information is required to prevent imminent serious physical harm to that client or to another person. This is permissive, but doesn’t require any action to be taken. Be reasonably sure that the threat is credible. If in doubt, seek the views of colleagues or a Senior Counsellor under the Queensland Law Society scheme.

This exception permits you to disclose the threat and other confidential details to the police and to the person threatened. This disclosure should be to the party’s solicitor if they have one, so as to avoid a breach of the ‘no-contact rule’ in s 18 or s25 of the Solicitors Rule 2007, depending on the circumstances. Always limit any disclosure to only the information required to deal with the threat.

This scenario will fall within the confidentiality exception in s 3.7 of the Solicitors Rule 2007 if, in your opinion, disclosure of information is required to prevent imminent serious physical harm to the client. This may well be a “cry for help” from your client. 

It may be appropriate to provide the client with information about and/or referral to relevant health professionals.  A GP or the local Mental Health Unit may be able to assist.

This exception to the rule allows sources of help to be approached to assist in intervening and to provide them with details of your client, even without the client’s consent.  However, where possible, it is preferred the client’s consent is obtained (the client may be more cooperative when later contacted by these people). 

These are all matters of judgement, about which you may wish to consult with colleagues or a Senior Counsellor from the Queensland Law Society panel. Alternatively, the exception will permit you to advise the police, who will then be obliged to take some action, which may lead to the same outcome.
 

The Solicitors Rule 2007 does not contain a specific rule about legal professional privilege (or ‘client legal privilege’ as it also known) but the common law is summarised as at July 2007 in the Commentary to s 3, the rule about confidentiality.

For more extensive coverage of this topic see the following reference sources:

• Australian Taxation Office Access and Information Gathering Manual Chapter 6: Legal Professional Privilege (LPP) – in particular Appendix A contains details of the application of LPP to the different sorts of documents likely to be found in solicitors’ offices

• Law Council of Australia: Federal Litigation Section - Client Legal Privilege Watch - includes case summaries

• Australian Law Reform Commission Report “Privilege in Perspective: Client Legal Privilege in Federal Investigations" – see Chapter 3: Overview of Client Legal Privilege (pp 77-115)

You have a duty to your client to maintain confidentiality and legal professional privilege (‘privilege’), even if you no longer act for the client, or you can't contact them for instructions, or even if they are dead (their personal representatives should be consulted for instructions).

Privilege is more limited in scope than confidentiality. For details of each, refer to Confidentiality and legal professional privilege (see related links below), the Solicitors Rule 2007 s 3 and its Commentary. 

You should first satisfy yourself that the warrant is valid and take a copy of it.

Privilege belongs to the client and can only be waived by the client. Immediately inform the client of the warrant and seek instructions. In the absence of instructions, a duty to preserve privilege still exists. If you are unsure about a particular document, you should claim privilege and let the court decide (disputed claims of privilege will ultimately be referred to the court) as an error by you may leave you liable to your client.

Where  separate legal representation in relation to the matter exists then seek instructions about waiver or assertion of privilege by the client through those other solicitors.  Those solicitors may be provided with a copy of the relevant file(s) on receipt of authority.

See the following resources for further information:

- Queensland Police Service ‘Execution of search warrants on premises of lawyers’, s 2.8.5, QPS Operational Procedures Manual.
- Australian Federal Police Execution of AFP Search Warrants on Lawyers' Premises,  Law Council of Australia website or Section 3 of the Solicitors Rule.
- Supreme Court Practice Direction No. 25 of 1995 Execution of search warrants on solicitors' offices and barristers' chambers
- Legal Services Commissioner v Winning [2008] LPT 13 – charge 1 (tipping off clients about impending execution of search warrant). See also the article about this case ‘Raid tip-off – saintly or sinful?’ in "Related Material" below. 

You must maintain confidentiality and legal professional privilege. Unless you have the client’s authority to do so, or one of the exceptions applies, you should not disclose any confidential or privileged information to the police, even informally. Whether the police could get a search warrant or subpoena you is immaterial.

For the exceptions to confidentiality see s 3 of the Solicitors Rule 2007.
 

Such notices can originate from a range of sources such as the CMC, ATO, ACCC, trustees in bankruptcy or liquidators of current or former clients.

The comments in relation to police search warrants in the previous questions in this section are generally relevant.  However, unlike the position with search warrants, certain of these powers will not require you to provide confidential details. You will need to consider the terms of the relevant legislation in each case as to both confidentiality and legal professional privilege (‘privilege’).  Normally the notice will identify the relevant legislation, but if not, details should be sought from the issuing body.

Consider whether the statutory powers relied on in the notice abrogate privilege. The High Court in the landmark Daniels case (2002) 213 CLR 543 stated that privilege is “an important common law immunity” and that it can only be abrogated expressly or by “necessary implication”. Look carefully at the particular statutory provisions relied on in the notice and consider any relevant case law on those provisions, especially as to “necessary implication” which may not be obvious.

The organisation serving the notice will have a view on these questions and may be able to refer relevant case law.

Be aware that in some limited instances, the legislation makes it an offence for you to contact your client about the notice –the notice should make this obvious but consider checking the position with the organisation serving the notice.

The New South Wales Law Society has nicely summarised the ethical guidance given by its Ethics section in relation to statutory notices in an article by Virginia Shirvington (NSW Law Journal, May 2005, p.40):

"A statutory notice to which a penalty attaches for non-compliance usually overrides a solicitor’s duty of confidentiality to a client. The solicitor will be required to provide such information identified in the notice as may be characterised as ‘merely’ confidential, as opposed to information protected by legal professional privilege…

A statutory notice does not normally override client privilege, and the relevant legislation may specify that a request for the information may be resisted where there is ‘reasonable excuse’, which generally would include a claim of privilege. In some cases the legislation will prescribe the procedure for claiming privilege; in certain cases the relevant legislation may specifically override privilege.

In ethical terms, it is appropriate for a solicitor to ask the issuing authority about the form and scope of a notice and the position regarding client privilege, and for the solicitor to contact the client to obtain instructions. If the client objects to providing the information, the solicitor should claim privilege if such a claim is available."
 

The QLS has developed a checklist (PDF 195KB) for solicitors in this position. This is intended to be read with this FAQ and the others FAQs in this section.

If the notice has been served by a federal body refer to these documents:

• Australian Law Reform Commission Report “Privilege in Perspective: Client Legal Privilege in Federal Investigations”

• QLS Introductory guide to the above ALRC report.

For ASIC, APRA, the ACCC and the ATO, read “The privilege against self-incrimination, the penalty privilege and legal professional privilege under the laws governing ASIC, APRA, the ACCC and the ATO – suggested reforms” by Dr Thomas Middleton (2008) 30 Australian Bar Review 282 (available from the Supreme Court library - Send a Research Request).

For ASIC, read “The role of lawyers in the context of ASIC’s investigative and enforcement powers” by Tom Middleton (2010) 28 C&SLJ 107 (available from the Supreme Court library - Send a Research Request).

For details of the privilege against self-incrimination, read:

• Cross on Evidence, Section 2 ‘Privilege against Self-incrimination’ (available from the Supreme Court Library - Send a Research Request)

• Queensland Law Reform Commission Report No 59 ‘The Abrogation of the Privilege against Self-incrimination’ (December 2004).

Fundamentally, any document created during the retainer between yourself and your client for the dominant purpose of providing legal advice may attract client legal privilege.

The Australian Taxation Office’s Access to Lawyer’s Premises contains details of the application of legal professional privilege to the different sorts of documents likely to be found in solicitors’ offices (at paragraphs 14-19). 

These principles are applicable generally, not just in relation to exercise by the ATO of its access powers.