Ethics

A. This disturbingly common error is often called "inadvertent disclosure". If you have not looked at the documents when you realise they are not meant for you, the ethical solution is very simple.

• You should not look at the documents.
• You should notify the other solicitor of their error and offer to return or destroy the documents.
• Whether you tell the client about the other side's error is a matter for you, but you should be careful not to place yourself unnecessarily in a position where you are unable to comply with a client's lawful instructions.
• If you choose to tell the client about the error, you should also therefore explain to the client that your professional obligations oblige you to destroy or return the documents unread.

If you have started (or even finished) reading the documents before you realise the error, your situation is more complex.

• You may have learnt something confidential that you feel obliged to share with your client, in the client's best interests.
• The other side may be able to injunct you from disclosing or using that information, despite any arguments about implied waiver of privilege as a result of their mistake.
• In the worst case, it may be impossible for you to continue acting. You should refer to the Inadvertent Disclosure Guidelines (pdf) for assistance.

Further reading:

• ”Lawyers' Professional Responsibility ” (3rd ed) GE Dal Pont.

A. From time to time, a solicitor may be appointed as a sessional member of a tribunal. Unless great care is taken, this can give rise to conflicts of interest and the appearance of compromised impartiality.

After discussions with the president of the Victorian Civil and Administrative Appeals Tribunal (VCAT) in 1999, the LIV published Practice Guidelines (pdf) which give advice on matters in which solicitor members should not sit.

Queries on this issue should be directed to:
Professional Standards
Ph: (03) 9607 9422
Fax: (03) 9602 5270