Ethics

A. Privilege is a complex area of law.  This site does not attempt to give legal advice on whether particular information or documents are privileged.  The following information is offered as brief general guidance only.

The common law doctrine of legal professional privilege (more accurately “client privilege”) effectively protects certain documents and information so they do not have to be disclosed (even if they are relevant), for example, to another party to litigation.

Some key facts:

• In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 429 (7 November 2002), the High Court of Australia described privilege as a fundamental civil right. It should not be treated lightly.
• Privilege is justified on public policy grounds, since it assists the administration of justice by:
  • Encouraging people to provide full and frank instructions to a legal adviser.
  • Thus enabling the legal adviser to give fully informed legal advice.
  • Knowing that neither the instructions nor the advice may be disclosed to any other person other than in very limited exceptions.
• Privilege belongs to the client not the solicitor. The solicitor has no right to waive the client’s privilege.
• The onus of establishing privilege rests on the person claiming privilege.
• Privilege continues indefinitely, beyond the end of the retainer and even beyond the client’s death.
• Privilege may be overridden expressly by statute, although for public policy reasons this is rare. See Daniels Corporation.
• Privilege may be overridden in limited circumstances by opposing public policy arguments.
• Privilege may be waived expressly, for example by tendering a document into evidence or
• Privilege may be waived impliedly, for example by putting the substance of the communication into issue.

There are two primary limbs of privilege: litigation privilege and advice privilege. (Common interest immunity is not considered here.)

Litigation privilege

• Applies where there are actual or anticipated proceedings.
• It can cover communications between the lawyer and third parties, as well as between lawyer and client.
• For further information on “anticipated proceedings”, see Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 and the further reading list below.

Advice privilege

• Applies in Australia to communications between lawyer and client for the dominant purpose of seeking or giving legal advice.
• It will generally only apply to communications with third parties where the third party is the client’s agent for the purpose of the communication.
• For further information on the “dominant purpose” test, see Esso Australia Resources Limited v Federal Commissioner of Taxation (2000) 168 ALR 123.

Exceptions:

Some lawyer-client communications will not usually attract privilege. For example:

• Communications made for the purpose of facilitating a crime or fraud. See R v Cox and Railton (1884) 14 QBD 153.
• A client’s name. See Southern Cross Commodities Pty Ltd (In Liq) v Crinis [1984] VR 697.
• The fact that a client sought legal advice. See R v R [1995] 1 Cr App R 183.

However, remember that obligations of confidentiality may still apply to non-privileged communications. Confidentiality should also be considered before making disclosure.

Further reading:

• ”Lewis & Kyrou’s Handy Hints on Legal Practice” (3^rd Edition), GD Lewis, EJ Kyrou & AM Dinelli, 2004. Chapter 9
• ”Lawyers' Professional Responsibility ” (3rd ed) GE Dal Pont.
• ”Law of Privilege”, SB McNicol. 1992. Available from the LIV Library

There are many other comprehensive texts on the law of privilege available for loan from the LIV library or for purchase through the LIV Bookshop.

A. A client’s conduct that is inconsistent with confidentiality will tend to mean privilege has been waived.

The High Court provides a useful summary on this issue in Mann v Carnell (1999) HCA 66 (21 December 1999) (per Gleeson CJ, Gaudron, Gummow and Callinan JJ, Kirby J concurring, McHugh J in dissent)

“At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that “waiver” is a vague term, used in many senses, and that it often requires further definition according to the context [19]. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which affects a waiver of the privilege [20]. Examples include disclosure by a client of the client’s version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication [21], or the institution of proceedings for professional negligence against a lawyer, in which the lawyer’s evidence as to advice given to the client will be received [22].”

For the same reason, case law confirms that privilege may be waived by disclosing the effect of legal advice (rather than the advice itself). Even if the lawyer’s reasoning is not disclosed, the revealing of the advice is inconsistent with confidentiality which is fundamental to legal professional privilege.

Further reading:

Mann v Carnell (1999) HCA 66 (21 December 1999)

Bennett v CEO of the Australian Customs Service (2004) FCA FC 237 on appeal.

A. When confronted with a search warrant, you should always first check whether the warrant is valid. For example, is it too broad in its scope?

See the executing officer’s identification:

• Arno v Forsyth (1986) 9 FCR 576
• Harts Australia Ltd v Commissioner of Australian Federal Police (1997) 75 FCR 145.

If an apparently valid warrant purports to cover privileged documents, remember privilege belongs to your client, not to you.

Unless it is then:

• waived by the holder of the privilege (the client); or
• overridden in legislation, expressly or by necessary implication (Daniels); or
• found by a Court not to apply,

You are legally obliged to exercise privilege on your client's behalf.

Not sure if documents are privileged? Read ‘What is privilege?’.

Assuming the warrant is valid, the simplest solution is to keep a copy of the LCA/AFP Search Warrant Guidelines in your office. These set out an agreed process for managing a request for a privileged file.

In summary:

• The solicitor has a limited time to contact the client for instructions. The client may choose to waive privilege, in which case the dilemma is resolved.
• If privilege is asserted the affected documents are sealed;
• A general list of the contents mutually approved,
• A container and list are delivered to a magistrate/justice/third party;
• The solicitor (upon instruction) institutes proceedings to establish privilege;
• The Court makes a ruling.
• As an officer of the Court, the solicitor is bound by the Court's decision.

If proceedings are not issued, within times set out in the guidelines, then the documents are released by consent to the executing officer.

Note: the Search Warrant Guidelines are currently under review by the Law Council of Australia (along with the similar guidelines for Australian Taxation Office Access to Solicitors' Premises.

• In current form, they do not adequately define "lawyers' premises."
• They are insufficiently clear on the test for legal professional privilege, failing to reflect the "dominant purpose" test.
• Their application to computer searches is unclear.

Given their purpose, the basic provisions of the guidelines are likely to stay the same. Any changes will be published here when available.

Further reading:

• ”Lewis & Kyrou’s Handy Hints on Legal Practice” (3rd Edition). Gordon D Lewis, Emilios J Kyrou & Albert M Dinelli
Pages 73-75 sets out useful guidance on procedure when faced with a Search Warrant. Available from the LIV Bookshop.

A. A suspect in police custody has a legislative right to personally communicate with a legal practitioner. In the past there has been some confusion about the extent of this right, as well as the precise rights and responsibilities of legal practitioners on police premises.

In 2002, the Law Institute of Victoria, the Victoria Police and the Victorian Bar Council developed guidelines to clarify these rights and responsibilities.
Among other things, the guidelines:

• describe when it may be appropriate for a legal practitioner to interrupt a police interview, for example because new and unexpected matters are raised for which the practitioner has no or insufficient instructions.
• offer some guidance for practitioners attending identification parades with a client.
• clarify some issues surrounding bail and remand applications on police premises.

A. In limited circumstances, the media may be a valuable tool for your practice. However you are walking on dangerous ground. Talking to the media can raise serious ethical considerations.

Sub judice: Practitioners must avoid any conduct that might amount to sub judice or other contempt of court, or is in any way damaging to the proper administration of justice. Examples include.*

• Publicly stating that an accused facing trial is guilty.
• Publicly stating that an accused facing trial is innocent.
  • See Director of Public Prosecutions v Wran (1987) 7 NSWLR 616
• Publishing an accused’s criminal record shortly before the trial
  • See: Hinch v Attorney-General (1987) 164 CLR 15)
• Publishing damaging material about a party or a witness who is giving evidence.

* Taken from “Handy Hints on Legal Practice” (3^rd edition), Gordon D Lewis, Emilios J Kyrou & Albert M Dinelli

Note also the prohibition against publishing material that may prejudice a fair trial on the administration of justice. (See Rule 19.1 of the Professional Conduct and Practice Rules 2005 (pdf).

Confidentiality and privilege: Privileged information obviously cannot be communicated to the media unless privilege has been waived. Even where privilege does not apply, be very wary of inadvertently breaching confidentiality.

When relying on Rule 3.1.4 of the Professional Conduct and Practice Rules 2005 (pdf), which confirms information in the public domain is not subject to the same confidentiality obligations, be certain what you are saying is in fact in the public domain.

• The appearance of information in a newspaper does not always mean it is in the public domain as a confirmed fact.
• It may be nothing more than speculation or rumour.
• If you, as a lawyer, publicly confirm information, you can quickly end up on the wrong end of disciplinary proceedings for breach of client confidentiality, or even on the wrong end of a defamation suit.

The good repute of the profession: Talking to the media can easily appear as a form of "ambulance chasing" or headline seeking.

Many practitioners find the concept distasteful and feel it does little to improve an already poor public perception of the profession, particularly where it is done without any apparent compelling reason.

In every case, you should ask yourself why you are agreeing to a request for a media interview. If you are treading close to the line on any of these ethical considerations, it is wise to decline to comment.

A. It is a perfectly legitimate part of our criminal justice system to put the prosecution to proof. The Professional Conduct and Practice Rules 2005 (pdf) clearly confirm the common law position that a practitioner may enter a plea of “not guilty” on behalf of a client, notwithstanding knowledge (or reasonable belief) of the client’s guilt. See Rule 15.2.

However this must be read in conjunction with your obligation to the Court, as an officer of the Court.

• It is unacceptable to mislead the Court, by commission or omission, nor may you allow your client to do so.

A solicitor aware of the client’s guilt may not present an affirmative case inconsistent with that guilt.

• It is reasonable, lawful and ethical to argue that the evidence as a whole does not prove the client’s guilt (Rule 15.2.2(c)):
• It is ethical to argue that the client is not guilty for some reason of law (15.2.2(d));
• It is not ethical to run (for example) an alibi, if you know the alibi must be false.

If a practitioner wants to cease acting following a client’s confession, this will generally be allowed provided:

• There is enough time for another practitioner to take over the case properly; and
• The client does not insist on the first practitioner continuing. Rule 15.2.1.

A. Sometimes people make threats they do not really intend to pursue. Clients sometimes make “empty threats” to harm you, another party or even themselves. However, if you believe on reasonable grounds that your client is serious about a threat or a threat to harm himself or herself, you are facing a serious ethical dilemma.

As a lawyer, you must maintain a client’s confidences (see Rule 3, Professional Conduct and Practice Rules 2005 (pdf) and general common law principles). However, a lawyer may sometimes disclose confidential information, despite a client’s claim of legal professional privilege, if:

• the disclosure is to avoid probable commission or concealment of a serious criminal offence; and
• the law would probably compel disclosure. (Rule 3.1.1 of the Professional Conduct and Practice Rules 2005.)

This exception to confidentiality is permissive (not mandatory). This means there is no legal obligation to disclose the client’s intentions to commit a serious criminal offence. There is, to some extent, room for a solicitor to exercise his or her own ethical value judgements, within the guidance of the common law. The individual lawyer will need to assess the competing public policy arguments. These may include, for example:

• The likelihood of harm to others
• What sort of action might be taken to prevent it;
• How seriously the practitioner perceives the threat;
• The context in which the practitioner learned of the threat;
• Other factors.

Suicide and self-harm are not criminal offences, so the exception in Rule 3.1.3 cannot apply. However public interest grounds may be used in a similar way to outweigh the duty to maintain a client’s confidences. Predicting the court’s views of that balancing exercise, in any particular case, is a major challenge and there is little precedent available. Practitioners are reminded of the telephone services available to help with urgent dilemmas – the Junior & Senior Counsellors, the Duty Solicitor Scheme and the Ethics Inquiry Line.

Note that Rule 3.1.3 is a new rule in Victoria (in force since 1 December 2003) and has not yet been tested. Commentary on the exact implications of the rule are hotly contested, with some authors going as far as saying the “probable compulsion of law” requirement renders the rule redundant.

See for example “Compelling Disclosures” by Adrian Evans (2004) 78(8) LIJ p82.