Ethics FAQs - Search Warrants and Statutory Notices to Produce
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:
• 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.
