Ethics Ruling Number
R4991
Area of Law
Criminal
Category
Ethics Ruling Date
10/12/2020
Ethics Pub Date
3/01/2021
Ethics Background
Rule 31 of the Australian Solicitors’ Conduct Rules 2015 provides inter alia that, unless otherwise permitted or compelled by law, a solicitor must not make use of inadvertently disclosed material which the solicitor knows or reasonably suspects to be confidential, must return, destroy or delete the material upon becoming aware that the disclosure was inadvertent and must notify the disclosing party of the steps taken to prevent its misuse. The solicitor may bring to the attention of the court that the material was inadvertently disclosed and subsequently returned, where doing so is necessary to comply with the solicitor’s paramount duty to the court and administration of justice. A solicitor acted for a client in defending a prosecution by a government body. In the course of email correspondence with the solicitor, the government body inadvertently disclosed material which may have undermined the credibility of a proposed prosecution witness. The solicitor argued that such material was not confidential as the prosecution had an ongoing duty to the court to disclose such material to the defendant.
Ruling
In the opinion of the Ethics Committee and on the information presented: 1. The solicitor is obliged to return the inadvertently disclosed confidential material to the government body in accordance with the solicitor’s obligations under Rule 31 of the Australian Solicitors Conduct Rules 2015. 2. As an officer of the court, the solicitor has a duty to the administration of justice, and if necessary in order for the solicitor to comply with their obligation to the court, may bring to the attention of the court the events that have occurred.

Law Institute of Victoria
Ethics Committee of Law Institute of Victoria Ltd
Legal Ethics Manager
Phone: 03 9607 9336
Email: ethics@liv.asn.au

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