LLB197 Lecture Notes - Lecture 7: Esso Australia, Crimes Act 1900, Indictable Offence
TOPIC 6: Duty of loyalty (Confidentiality – including Privilege)
Seminar case: Alton Logan case
-solicitor knew whereabouts of bodies – American Case
Duty of confidentiality
§ Implied term in retainer
§ 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 personal representative
Confidentiality
§ See RULE 9
o Confidential to the client
o Acquired during the engagement
o Exceptions in r 9.2
o Breach of rule – can be UPC or PM, therefore can lead to disciplinary action
Uniform Conduct Rules (Solicitors)
RULE 9: Confidentiality
9.1 A solicitor must not disclose any information which is confiden0al to a client and acquired by the solicitor
during the client’s engagement to any person who is not:
9.1.1 a solicitor who is a partner, principal, director, or employee of the solicitor’s law prac0ce, or
9.1.2 a barrister or an employee of, or person otherwise engaged by, the solicitor’s law prac0ce or by an
associated en0ty for the purposes of delivering or administering legal services in rela0on to the client,
EXCEPT as permitted in Rule 9.2.
Rule 9 (continued) – Rule 9.2 Exceptions
9.2 A solicitor may disclose informa0on which is confidential to a client if:
9.2.1 the client expressly or impliedly authorises disclosure,
9.2.2 the solicitor is permitted or is compelled by law to disclose,
9.2.3 the solicitor discloses the informa0on in a confidential setting, for the sole purpose of obtaining advice in
connection with the solicitor’s legal or ethical obligations,
9.2.4 the solicitor discloses the informa0on for the sole purpose of avoiding the probable commission of a
serious criminal offence,
9.2.5 the solicitor discloses the informa0on for the purpose of preventing imminent serious physical harm to the
client or to another person, or
9.2.6 the information is disclosed to the insurer of the solicitor, law practice or associated en0ty.
Duty of confidentiality - Note the exceptions say ‘MAY’…
Discretion to disclose
- Authorised disclosure
- Disclose if law would permit/compel
o Serious indictable offence - s316 (1) Crimes Act 1900 (NSW)
Note: s316(4)
Crimes Act 1900 (NSW) s316 – 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
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Document Summary
Topic 6: duty of loyalty (confidentiality including privilege) Seminar case: alton logan case solicitor knew whereabouts of bodies american case. 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 personal representative. See rule 9: confidential to the client, acquired during the engagement, exceptions in r 9. 2, breach of rule can be upc or pm, therefore can lead to disciplinary action. 9. 1 a solicitor must not disclose any information which is confiden0al to a client and acquired by the solicitor during the client"s engagement to any person who is not: 9. 1. 1 a solicitor who is a partner, principal, director, or employee of the solicitor"s law prac0ce, or. 9. 1. 2 a barrister or an employee of, or person otherwise engaged by, the solicitor"s law prac0ce or by an associated en0ty for the purposes of delivering or administering legal services in rela0on to the client,
