Ethics Ruling Number
R5010
Area of Law
Commercial
Category
Inadvertent disclosure
Ethics Ruling Date
1/02/2022
Ethics Pub Date
1/04/2022
Ethics Background
In accordance with ASCR rule 31, where a solicitor is made aware that a confidential document has been inadvertently disclosed the solicitor must not make use of the confidential document and must return, destroy or delete the document (as appropriate) immediately upon becoming aware of the inadvertent disclosure. Additionally, the solicitor must provide notification to the relevant person(s) of the steps taken to prevent the inappropriate misuse of the document. In practice, this means that once a solicitor is notified that a document is confidential and inadvertently disclosed, then the solicitor must destroy any physical copy and delete any electronic copy of it. Further, the solicitor is not permitted to read the inadvertently disclosed document before returning, destroying or deleting it. A law firm acted for the Defendant (Defendant’s law firm) in a Supreme Court proceeding regarding a claim by a liquidator of insolvent trading. The other law firm acted for the Plaintiff (Plaintiff’s law firm). The Plaintiff’s law firm sent a Zip Folder to the Defendant’s law firm via email which contained the Plaintiff’s discovered documents. Approximately three months later, the Plaintiff’s law firm contacted the Defendant’s law firm advising that one of the documents (the document) contained within the Zip Folder had been inadvertently provided and was a confidential and privileged communication between the firm and its client. The Plaintiff’s law firm requested that the document be destroyed, and that the Defendant’s law firm provide confirmation of the steps taken to prevent the use of the material per ASCR rule 31. Following receipt of the correspondence, the Defendant’s law firm reviewed the document as the law firm considered that it was not feasible to destroy the document without first ascertaining its nature. Subsequently, the Defendant’s law firm asserted that the document was not a privileged communication between the Plaintiff’s law firm and its client, relevant to the Supreme Court proceeding being conducted between the Plaintiff’s and the Defendant’s law firms. The Defendant’s law firm requested an Ethics Committee ruling as to whether the document should be destroyed or simply quarantined from use. The Defendant’s law firm also noted that it had received instructions to bring proceedings against the Plaintiff’s law firm’s other client to whom the document related, and raised concerns that the destruction of the document could be subject to criminal sanctions on the basis that it could constitute evidence in anticipated proceedings.
Ruling
In the opinion of the Ethics Committee and on the information presented: 1. The Defendant’s law firm is obliged to destroy any physical copy and delete any electronic copy of the inadvertently disclosed document and notify the Plaintiff’s law firm of the steps taken to prevent the inappropriate use of the document in accordance with their obligations under rule 31 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015. 2. In circumstances where a solicitor is aware that a confidential document was inadvertently disclosed, a solicitor must not make use of that document and must return, destroy or delete the document (as appropriate) immediately upon becoming aware of the inadvertent disclosure. 3. In practice, this means that if an opponent notifies a solicitor that a document is confidential and inadvertently disclosed, then the solicitor is not permitted to read that document before returning, destroying or deleting it.

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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