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LIV President's Blog 2014

LIV President's Blog 2014

Geoff Bowyer, LIV President 2014 on the latest issues and topics. Read and comment.

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Could you be guilty of overstepping the line of privilege?

Could you be guilty of overstepping the line of privilege?

Privilege and client confidentiality may appear to be simple principles that underpin the everyday dealings of all lawyers, however maintaining them can be more complex than one might think at first glance. Recent news stories related to this topic have lead me to examine – where do lawyers who are committed to doing the right thing sometimes slip up? What are the risk areas of privilege and client confidentiality?

Friendly gossip: Sometimes we encounter some great gossip in our role as lawyers. But if you are ever tempted to share it, consider this story: A partner at Russells law firm in the UK was so excited to know that client JK Rowling had published a book under a pseudonym, he felt compelled to share the confidential information with a friend of his wife – a big mistake. The gravity of this mistake was increased when the friend then divulged this information to a journalist via twitter. Needless to say, the case ended up in court with Russells paying a hefty fine for betraying their client’s trust so publicly. Not to mention the damage to the firm’s reputation.

Pillow talk: OK – so it’s probably more often dinner conversation, but it is hard to achieve the emotional relief of a ‘how was your day’ conversation without slipping out a work detail that could possibly make a client identifiable. And while you may totally trust your partner, they may in turn accidently divulge that detail to their friends…and on it goes. Heck I don’t know the solution if you are prone (as I have been told) to talk lucidly while asleep – what's more dangerous sleep walking or sleep talking?

Social media counts: Ever meet the young lawyer that was so excited to see a famous client walk into her family law firm that she shared the details on Facebook? Never mind that the client was looking for some confidential advice regarding a separation, and she was only sharing it with her group of Facebook friends right? Well, you probably haven’t met this young lawyer because this is a great way to cut a promising career short. It doesn’t take much for a story like this to spread, even if you don’t use client names eg. “Guess which fav rocker with a new album just walked in?!” People (particularly journalists) are good at putting two and two together, with embarrassing results. Check the LIV Social Media Ethics Guidelines for more info.

Beware “Reply ALL”: Reply All and auto-complete are dangerous territory when a highly confidential or privileged document is involved. These email dangers can lead to disastrous results. For example, a media adviser for the Brumby government sent a highly confidential draft media strategy to a journalist at the ABC instead of to her boss due to predictive email address function – the whole episode ended up in an Ombudsman’s investigation. I personally enforce a one minute 'cooling off' period before pressing the 'send' button.

Public conversations: I don’t know how I worked without a mobile phone – I’d be lost without it now. But we do have to remember, and remind our clients, that speaking loudly about a case in public removes any reasonable expectation of privacy. For example, several years ago, the solicitor and barrister were discussing a case over lunch at a restaurant. Without naming the client they mentioned the range that they expected the case to settle for and were discussing the tactics and offers that they would put.

Unknown to them, at a table close by, was an articled clerk from the other side who knew enough about the case to recognise it and noted the discussion. He duly reported back to his principal who had assessed the case at a lower amount, but with this information was able to settle for a much higher figure. I find that the noisier the restaurant is the better as no one else is likely to overhear a private conversation.

Check before asking for advice: We all need to get advice from another lawyer now and then. But ensure that first you check if they have any involvement in the case, or a history with the client or case. Remember that your legal professional privilege applies to everyone – that includes law enforcement agencies. I can still recall as a young lawyer talking to a colleague about the conduct of a national landlord only to find that unbeknown to me his firm had just accepted instructions to take over a Federal Court litigation for that client. A valuable lesson learnt early!

So you can see that there are a minefield of ways that lawyers can inadvertently overstep the line of client privilege and confidentiality without dubious intent. But the saying “Loose lips sink ships” was never truer than in the legal profession and it continues to be our utmost duty to maintain these sacred principles.

If you would like advice on a situation involving privilege or client confidentiality, call the LIV Ethics Advice Line on 9607 9336, or book into the new LIVing Ethics program which goes beyond compliance and reflects practical ethics issues solicitors face on a daily basis (free with Practising and New Solicitor memberships). Additionally, for the younger lawyers out there, remember that we have practice sections full of highly experienced practitioners who would be more than happy to lend an ear, or give you some guidance. Check out your Practice Section Committee members.

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@Vanda - It's unfortunate that the responsibility rests on your clients to advise who they don't want you to speak with about their case, when of course the onus should be on the practitioner, and confidentiality should be the rule, not the exception. I appreciate that community law is complex and fraught with a whole host of issues, however perhaps it's time to reset client expectations.
10/09/2014 7:42:56 AM

Geoff Bowyer
I understand Vanda - the temptation is to make a point as real as possible, but therein lies the danger!
5/09/2014 3:29:56 PM

As a community lawyer, I find that I am sometimes under pressure from workers in the community to share more information than I should. There is an expectation quite often from clients that I will share information, as the sort of issues my clients face are often complex and may involve a number of workers to help resolve. I always ask my clients if there is anyone they don't want me to speak with, and I respect that. But it can be a bit of a minefield sometimes!
4/09/2014 11:36:15 AM

Michael Clothier
Very timely reminder about gossip sinking careers! ASIO officers we are not and after a few glasses of wine the desire to reveal can become almost unbearable.
4/09/2014 11:28:38 AM

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