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Ethics: Confidentiality and celebrity

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Cite as: October 2009 83(10) LIJ, p76

Lawyers should take special care in making media comment on clients or their cases.

Confidentiality lies at the core of the lawyer-client relationship.

Law students have this drummed into them while at law school, and would in any event have been exposed to confidentiality issues via the plethora of (mostly American) television dramas that have appeared on television and movie screens over the years.

Emphasising this importance, the confidentiality obligations appear towards the beginning of the relevant professional rules.1 The assumption, not completely unchallenged,2 is that society as a whole benefits from lawyer-client confidentiality, which it is alleged invests clients with confidence in their legal representatives and encourages clients to be entirely forthcoming.

The parameters of the duty of confidentiality are construed widely, and to this end the client's private interest in confidentiality will in the main trounce any alleged wider public interest in disclosure.

Of course, there are occasions where others' private or public interests may justify an incursion into the veil of confidentiality.

The lawyer's private interest in collecting a fee or defending a negligence suit, for instance, can partially override confidentiality.

I say partially, as it does not justify the wholesale disclosure of client confidences to the world at large. Even so, the lawyer's private interest in this context can be viewed from the perspective of a broader public interest in lawyers being willing, say, to accept clients who appear difficult or of modest means.

A public interest in mandating or allowing disclosure may appear from the terms of a statute, or even under the professional rules, which generally allow limited disclosure of client confidential information amounting to serious criminal conduct.3

Beyond the foregoing, the notion that lawyers can, having disclosed client confidential information without client authorisation, avail themselves of any "public interest" defence, to the extent that such a defence is recognised in Australia in equity,4 may prove misplaced.5

Lawyers, it is reasoned, should not be called on to make judgments as to the broader public interest; this is left for the Parliament or, to a lesser extent, the courts. What is interesting to the public is not, in this context, necessarily in the public interest.

It could be surmised that, if information communicated in the course of a lawyer-client relationship has reached the public domain, the client's claim of confidentiality over those communications is correspondingly reduced. But lawyers should not rest in any such assurance when making, or being tempted to make, public comment on clients or their cases. There are several reasons that lawyers should exercise a continuing reticence to comment in these instances.

First, although equity recognises that information can lose its confidentiality, the lawyer's duty in this regard is not sourced solely in equity. It arises from an amalgam of contract, equity and concepts of professionalism, and is grounded in fostering trust as between client and lawyer.

Second, as it is likely that a lawyer will be apprised of considerable information pertaining to the client, the division between what is public and what remains private is by no means always an easy one to draw with any degree of accuracy. Public disclosure or comment on what is in the public domain may nonetheless involve the lawyer in disclosing, albeit possibly inadvertently, items that should remain confidential.

Third, even impressions may amount to confidential information, a point that appears in related cases on the disqualification of lawyers acting against a former client.6

The foregoing squarely raises dangers for lawyers in dealing with the media. An inadvertent breach of confidentiality to a single person, while hardly to be encouraged, may be viewed differently to the disclosure of confidential information to the public at large, whether by the print or visual media. It behoves lawyers to exercise extreme care, to this end, in making media comment on clients or their cases.

The concerns underscoring this need for care are not limited to client confidentiality - there is a broader issue of potentially bringing the profession and the administration of justice into disrepute7 - but client expectations of loyalty and confidence cannot be downplayed.

Lawyers who engage in media comment and analysis, or who are interviewed for documentaries, relating to their clients or cases, tread a tightrope so far as disclosure is concerned. After all, the media are rarely interested in what is already clearly in the public domain; a new angle is invariably sought.

The respondent in Legal Services Commissioner v Tampoe8 discovered this the hard way.

Disclosure in a television documentary of information about his client's family, which the respondent believed had, by virtue of the public interest in the case, translated to the public domain, was found to amount, when coupled with various disparaging remarks about the family and the trial process, to professional misconduct. This generated a striking-off order. It seems that, as with a case arising from events involving the same client in Western Australia,9 media celebrity blinded the respondent to his basic obligation of confidentiality.

That the confidentiality tightrope has challenged even experienced lawyers should serve as a reminder to exercise especial care in any public comment.

GINO DAL PONT is Professor, Faculty of Law, University of Tasmania.

1. See Professional Conduct and Practice Rules 1995 (NSW) r2.1; Professional Conduct and Practice Rules 2005 (Vic) r3.1.

2. See, for example, D Fischel, "Lawyers and confidentiality" (1998) 65 University of Chicago Law Review 1.

3. See Professional Conduct and Practice Rules 1995 (NSW) r2.1.3; Professional Conduct and Practice Rules 2005 (Vic) r3.1.3.

4. See GE Dal Pont and DRC Chalmers, Equity and Trusts in Australia, 4th edn, Lawbook Co, 2007, pp. 186-9.

5. See GE Dal Pont, "Confidentially speaking", August 2007 LIJ, p. 84,

6. See GE Dal Pont, Lawyers' Professional Responsibility, 3rd edn, Lawbook Co, 2006, pp. 195-7.

7. See GE Dal Pont, "The lawyer and the media", March 2008 LIJ, p. 80,

8. [2009] LPT 14.

9. See Legal Practitioners Complaints Committee v Trowell [2009] WASAT 42.


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