LLB197 Lecture Notes - Lecture 7: William Gummow, Esso Australia, Photocopier
Week 7 – Duty of Loyalty (Confidentiality, including Privilege)
See:
• The Lake Pleasat Bodies ase o The Buied Bodies Case
• The Alton Logan case
Duty of Confidentiality
• Part of the fiduciary nature of the relationship – continues indefinitely until
information no longer confidential
• Equitable doctrine of confidence – independent of contract
• Upon death – passes to the personal representative
• Confidential to the client
• Acquired during the engagement
• Exceptions in r 9.2
• Breach of rule can be UPC or PM – lead to disciplinary action
Uniform Conduct Rules (Solicitors)
• R 9 → Confidentiality
Exceptions under r 9.2:
• Note in particular 9.2.4 and 9.2.5
• Link to rule 20.3 – client intending to disobey court order – a dislose if soliito easoal eliees
thee is a theat to a pesos safet. Otheise, euied to ousel ut aot dislose ithout
permission
Note: the eeptio sas MAY:
• Discretion to disclose
• Authorized disclosure
• Disclose if law would permit/compel
- Serious indictable offence – s 316(1) Crimes Act 1900 (NSW) (s 316(4))
S 316 Crimes Act 1900 (NSW) – Concealing Serious Indictable Offence
(1) If a person has committed a serious indictable offence and another person who knows or believes that the
offence has been committed and that he or she has information which might be of material assistance in
securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without
reasonable excuse to bring that information to the attention of a member of the Police Force or other
appropriate authority, that other person is liable to imprisonment for 2 years.
(2) A person who solicits, accepts or agrees to accept any benefit for himself or herself or any
other person in consideration for doing anything that would be an offence under subsection (1) is liable to
imprisonment for 5 years.
(3) It is not an offence against subsection (2) merely to solicit, accept or agree to accept the making good of loss
or injury caused by an offence or the making of reasonable compensation for that loss or injury.
(4) A prosecution for an offence against subsection (1) is not to be commenced against a person without the
approval of the Attorney General if the knowledge or belief that an offence has been committed was formed
or the information referred to in the subsection was obtained by the person in the course of practising or
following a profession, calling or vocation prescribed by the regulations for the purposes of this subsection.
(5) The regulations may prescribe a profession, calling or vocation as referred to in subsection (4)
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• Implied term in the retainer that all communications are confidential
• Only confidential relationship protected by law
• If it ast ofidetial, clients would fail to be properly and fully advised and
represented
• Prevent the disclosure by the lawyer of confidential information acquired by the
lawyer or firm during the period of the retainer
• No requirement that the information given by the client actually relates to the work
being carried out by the lawyer
• Breach of confidentiality excused if the practitioner is permitted or compelled by law
to disclose → up to individual person to decide
• Even with a court order or legal requirement, the client may be able to prevent
disclosure by claiming legal profession privilege
• Uniform Conduct Rules (Solicitors) permit disclosure if a client intends to commit an
offee o otaee a out ode fo the pupose of aoidig the poale
commission of a seious iial offee
• Where a client intends to breach a court order the lawyer must:
- Advise the client against that and warn of its dangers
- Not advise the client how to carry out and conceal that course
- Not ifo the Cout o oppoet of the liets intention unless:
▪ The client has authorized the practitioner to do so beforehand
▪ The patitioe eliees o easoale gouds that the liets odut
ostitutes a theat to a pesos safet
Confidentiality and Technology
• Technology can risk confidentiality:
- Sending a facsimile with confidential information to the wrong person
- Sending/forwarding email or text message to wrong person or attaching a
document where disclosure of that document was not authorized
- Use of mobile phones in public → other people may hear/see
- Mobile transmissions can be intercepted
- Leaving confidential matter in the office or chambers photocopier or printer
- Posting comments, photos or other material on a blog or social media
Law Society of New South Wales v Harvey:
• The lawyer must not permit their own interests to override those of the client
• The atue of the laes iteest ust e full dislosed to the liet
• Where a conflict of interest can be avoided, it should be
• Where a conflict of interest remains, the lawyer should advise the client to obtain
independent legal advice, or consider withdrawing from the transaction
• The laes iteests hae the potetial to ause the liets positio
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Document Summary
Week 7 duty of loyalty (confidentiality, including privilege) See: the alton logan case (cid:858)the lake pleasa(cid:374)t bodies (cid:272)ase(cid:859) o(cid:396) (cid:858)the bu(cid:396)ied bodies case(cid:859) Uniform conduct rules (solicitors: r 9 confidentiality. Exceptions under r 9. 2: note in particular 9. 2. 4 and 9. 2. 5. Link to rule 20. 3 client intending to disobey court order (cid:858)(cid:373)a(cid:455)(cid:859) dis(cid:272)lose if soli(cid:272)ito(cid:396) (cid:396)easo(cid:374)a(cid:271)l(cid:455) (cid:271)elie(cid:448)es the(cid:396)e is a th(cid:396)eat to a(cid:374)(cid:455) pe(cid:396)so(cid:374)(cid:859)s safet(cid:455). Othe(cid:396)(cid:449)ise, (cid:396)e(cid:395)ui(cid:396)ed to (cid:272)ou(cid:374)sel (cid:271)ut (cid:272)a(cid:374)(cid:374)ot dis(cid:272)lose (cid:449)ithout permission. Note: the e(cid:454)(cid:272)eptio(cid:374) sa(cid:455)s (cid:858)may(cid:859): discretion to disclose, authorized disclosure, disclose if law would permit/compel. Serious indictable offence s 316(1) crimes act 1900 (nsw) (s 316(4)) Implied term in the retainer that all communications are confidential: only confidential relationship protected by law. Advise the client against that and warn of its dangers. Not advise the client how to carry out and conceal that course. Confidentiality and technology: technology can risk confidentiality: Sending a facsimile with confidential information to the wrong person.
