9. Confidentiality

1. A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person who is not:
   1. a solicitor who is a partner, principal, director, or employee of the solicitor’s law practice; or
   2. a barrister or an employee of, or person otherwise engaged by, the solicitor’s law practice or by an associated entity for the purposes of delivering or administering legal services in relation to the client,
      EXCEPT as permitted in Rule 9.2.
2. A solicitor may disclose confidential client information if:
   1. the client expressly or impliedly authorises disclosure;
   2. the solicitor is permitted or is compelled by law to disclose;
   3. the solicitor discloses the information in a confidential setting, for the sole purpose of obtaining advice in connection with the solicitor’s legal or ethical obligations;
   4. the solicitor discloses the information for the sole purpose of avoiding the probable commission of a serious criminal offence;
   5. the solicitor discloses the information for the purpose of preventing imminent serious physical harm to the client or to another person; or
   6. the information is disclosed to the insurer of the solicitor, law practice or associated entity.

Commentary

9.1 Duty to keep information confidential

The duty of confidentiality is both a fiduciary duty to the client and an implied term in the retainer contract: Parry-Jones v Law Society [1969] 1 Ch 1. It is absolute: a duty not to disclose, not simply to take reasonable steps to keep information confidential. The only exceptions are as set out in Rule 9.1.1, 9.1.2 and 9.2. A law practice may also have Privacy Act obligations.²⁹

Confidential information. The implied contractual term embraces 'all communications made by the client about his affairs, and all information learnt directly or indirectly about the client, in the course of the professional relationship': Re a Firm of Solicitors [1992] 1 QB 959, 970, cited in Unoil International Pty Ltd v Deloitte Touche Tohmatsu (1998) 17 WAR 97. 'Directly or indirectly' is well explained in Legal Practitioners Complaints Committee v Trowell [2009] WASAT 42 ('Trowell'). The Tribunal found that the duty of confidence extends to:

• information about the client that a solicitor learns in the professional relationship;
• information which the solicitor would not have had but for the relationship;
• information of a confidential nature³⁰ acquired by the solicitor before the relationship of solicitor and client is established; and
• opinions formed by the solicitor about the client’s affairs.

The two discipline cases in which the rule was breached during the representation of Ms Schapelle Corby (who was convicted of importing marijuana to Indonesia) are Legal Services Commissioner v Tampoe [2009] LPT 14 ('Tampoe') and Trowell. In Tampoe the solicitor:

1. disclosed information provided confidentially about past criminal convictions in the Corby family;
2. made statements to the effect that the Corby family were trash and that he had never seen a more ungrateful, nasty piece of work as his client and her family;
3. said that he had concocted the defence that drugs had been put in the client's baggage by airport baggage handlers.

As Atkinson J observed: “This is certainly likely to bring the legal profession into disrepute with the public. In fact, a person acting as a criminal defence legal practitioner cannot under any circumstances invent facts or invent a defence. To say such a thing is scandalous and is likely to cause the public to lose confidence in not only the legal profession but in the criminal justice system, because it suggests that in response to a criminal charge what one should do is find a legal practitioner who will make up a defence for the alleged offender. Secondly in Trowell, the practitioner was found guilty of unprofessional conduct and fined after disclosing confidential information in a number of statements to Australian media when Ms Corby was a client or prospective client without her informed consent. The Western Australian court speculated (at [384]) whether a lawyer’s disclosure of confidential information in relation to alleged illegal activity was justified:

"In our opinion, disclosure by a lawyer of such confidential information could only be justified if made to the appropriate authority or otherwise in accordance with the exceptions to r 6.3. It is difficult to see how it could ever justify publication to the press. The exceptions to the rule indicate how confined are the circumstances where disclosure is permitted and the appropriate authorities to whom disclosure may be made."

Public domain. Information that is in the public domain may still be confidential to the client. Repetition or confirmation of information by a solicitor may give that information a credible status that it might not otherwise have: Camp v Legal Practitioners Complaints Committee (2007) WASC 309. Solicitors should disclose that information with the greatest caution. In Tampoe, the solicitor contended that the information about the convictions was in the public domain and that he therefore committed no offence in disclosing it. However, it was held that the information had been communicated by the client on a confidential basis and that Tampoe was therefore in breach of his duty to the client in disclosing it on national television.

Imputed knowledge within a legal practice. Solicitors may disclose confidential information to another lawyer in the law practice, or another lawyer representing the same client.³¹ Conversely, solicitors in the same legal practice are presumed to share confidential knowledge about a client, as there is a 'strong inference that lawyers who work together share confidences': MacDonald Estate v Martin [1990] 3 SCR 1235. However, in practice this presumption may not reflect the actual knowledge of solicitors in all law practices and so may be rebutted. Refer also to Rule 10 for commentary on Information Barriers.

Duration. Once established, the duty is permanent. It continues after the termination of the retainer and even beyond the client's death, upon which the duty is owed to the legal personal representatives of the deceased: Gartside v Sheffield, Young and Ellis [1983] NZLR 37.

9.2 Exceptions to duty of confidentiality

It is said confidentiality may be overridden by the duty 'to comply with the law of the land'. Parry-Jones v Law Society [1969] 1 Ch. 1, 9.

Rule 9.2 is therefore very helpful in setting out the circumstances in which the confidential information may be disclosed. 

A solicitor who discloses confidential information should make a comprehensive note of their reasons for doing so. The note should include:

• The circumstances of the disclosure: date, time, place, the confidential information, person to whom the disclosure made etc.
• The grounds for the disclosure: for example, the details of the harm to be prevented under Rule 9.2.5.

9.2.1 Authorised by client

The client may expressly or impliedly authorise disclosure.³² Where a solicitor has joint clients, consent from each and every client is necessary to waive confidentiality: Singla v Stockler [2012] EWHC 1176. 

9.2.2 Permitted or compelled by law

Solicitor compelled by law to disclose privileged information. If the information is merely confidential, then the general duty to maintain confidentiality can be overridden by a legally authorised direction to disclose the information. If the information is also privileged, then a solicitor must not disclose the information unless required to do so pursuant to a statute that clearly and unambiguously abrogates the privilege itself: Baker v Campbell (1983) 153 CLR 52.

A solicitor may disclose confidential information without the client’s authority in limited circumstances that are permitted by law. There is an important distinction between confidentiality and privilege. Many warrants, subpoenas or other process that over-ride confidentiality obligations do not displace privilege.

Privileged information. Privileged information – compelled by law to disclose. There are no specific rules on legal professional privilege in the ASCR. This privilege allows the client to challenge the disclosure of confidential information. For the definition of "client" refer to the Glossary of Terms. In Carey v Korda [2012] WASCA 228 ('Carey'), Murphy JA said the 'client' in this context is to be regarded as referring to a person who, in respect of some legal matter within the scope of professional services normally provided by solicitors, has, with the consent of the solicitor, come to stand in a relationship of trust or confidence to the solicitor entailing duties of the solicitor to promote the person’s interests, to protect their rights and to respect their confidences (at [60]). A client may assert privilege if confidential communications passing between themselves and their solicitor were made for the dominant purpose of obtaining legal advice or for actual or contemplated litigation: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49. Privilege belongs to the client, not the lawyer. As such, privilege may only be waived by the client either expressly or impliedly. If the information is privileged and not merely confidential, then a solicitor must not disclose the information unless required to do so pursuant to a statute that clearly and unambiguously abrogates the privilege itself: Baker v Campbell (1983) 153 CLR 52. If the information is merely confidential, then the general duty to maintain confidentiality can be overridden by a legally authorised direction to disclose the information. 

Client legal privilege protects the communications between solicitor and client. There are instances where the protection extends beyond a literal communication or a record of communication. For example, drafts of letters, agreements or statements of claim. The reason why such material is privileged is that disclosure will, or will tend to, reveal the privileged communication (Attorney General (NT) v Maurice (1986) 161 CLR 475,496 per Dawson J).

A client is entitled to resist the production of documents which would reveal communications between the client and the solicitor made for the dominant purpose of giving or obtaining legal advice or the provision of legal services (The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, [9]). 

The privilege is available where the document expressly reveals the privileged communication, or where the content or nature of the privileged communication may be inferred from the document (Commissioner of Australia Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 569 ('AFP')).

Privileged information – solicitor’s bill of costs. A solicitor's bill of costs may fall into this category: AFP, 569 per Gummow J; Chant v Brown (1852) 9 Hare 790; 68 ER 735. Whether and to what extent a bill of costs is privileged will depend upon a consideration of the circumstances in which the claim for privilege occurs, and the nature and details of the entries made in the bill in question: Carey, [64] per Murphy JA. In most cases the appropriate course is redaction of the notation in the bill rather than a refusal to produce the document.

Solicitor permitted by law to disclose confidential information. The two examples of disclosure contemplated by Rule 9.2.2 are:³³

• A solicitor may disclose confidential information in order to establish or collect the solicitor’s professional fees and outlays, but this should be strictly limited to information that is required just for that purpose:
• A solicitor facing a disciplinary charge or complaint from a client may disclose the client’s confidential information under LPA s 491(1).

Section 491 does not expressly refer to information that is also subject to privilege. However, it confirms that a solicitor may use the confidential information in a defence against an allegation of impropriety and incompetence brought through a disciplinary complaint. It is also available in a civil claim alleging negligence, or a former client’s alleged incompetence in a criminal appeal. By taking these actions, the client waives their legal professional privilege.³⁴ A solicitor should therefore warn their client that such actions will result in an implied waiver of confidentiality and privilege. 

The implied waiver would extend only to information or representations that are relevant to the allegations being made: R v Paddon [1999] 2 Qd R 387 (an allegation of incompetence).³⁵ The waiver is also limited to the purpose of the disciplinary proceedings and for the particular persons who need to see documents for that purpose: Goldberg v Ng (1995) 185 CLR 83, 96. In that case, a complaint of professional misconduct, Goldberg relied on the implied waiver of his client's legal professional privilege to disclose documents to the Law Society of NSW on the proviso they would not be shown to anyone else. The Law Society then received a subpoena requesting those documents. The High Court decided the implied waiver of privilege was for a limited purpose (the disclosure by Goldberg to the Society) and the documents were not to be otherwise disclosed.

9.2.3 Disclosure to obtain ethical or legal advice

A solicitor may disclose confidential information in a confidential setting for the sole purpose of obtaining advice on their legal or ethical obligations. Examples of such disclosure include: 

• In a mediation of a personal injuries matter, the solicitor sought advice from senior counsel to determine whether he should disclose his client’s life expectancy following a cancer diagnosis: Legal Services Commissioner v Mullins [2006] LPT 012.
• In McKaskell v Benseman [1989] 3 NZLR 75, the solicitor showed his client’s letter to a senior practitioner for advice on an ethical matter. It was not a breach of confidentiality as it was carried out during ‘a serious and earnest search for assistance in the interests of his clients’. Such a disclosure cannot amount to ‘frivolous or promiscuous revelation’ of the client’s personal information. In the same case, there were additional disclosures at a social occasion. However, Rule 9.2.3 requires ‘a confidential setting’ which would disallow disclosures at a social occasion.
• In Australian Commercial Research and Development Ltd v Hampson [1991] 1 Qd R 508, the plaintiff sought opinions on the same matter from fourteen Queen's Counsel, including the defendant. Hampson believed the plaintiffs were attempting to 'corner the market' by disqualifying barristers from representing their opponent in the matter, the ANZ Bank. He consulted with the President of the Bar Association for advice. The disclosure of confidential information to the President was permitted, though the court confirmed that Hampson was disqualified from acting for the ANZ Bank in the matter.

9.2.4 Avoiding probable crimes

A solicitor may disclose confidential information for the sole purpose of avoiding the probable commission of a serious criminal offence. The exception exists at common law: R v Cox and Railton (1884) 14 QB 253.³⁶

9.2.5 Preventing physical harm

A solicitor must use common sense and 'sound judgment' before disclosing confidential information to prevent serious imminent physical harm to a client or another person.³⁷ The solicitor should consider:

• the seriousness of the potential injury;
• the imminence and likeliness of the harm occurring;
• the absence of other feasible ways to prevent the harm.

In the case of risk of harm to children, s197A of the Child Protection Act 1999 (Qld) provides for a statutory disclosure regime which is likely to allow disclosure in a wider range of circumstances and s229BC of the Criminal Code imposes a mandatory reporting obligation on all adults if, without reasonable excuse, they believe that a child sexual offence is being or has been committed against a child by another adult.

29 Privacy Act 1988 (Cth). See also Australian Government, Office of the Australian Information Commissioner: Guide to Information Security, April 2013; Law Council of Australia "Australia’s New Privacy Laws – What lawyers need to know about their own practices"; Law Institute of Victoria – Privacy Act Compliance Guide.

30 In equity, the three elements upon which the equitable duty of confidence is based are: 

• the information must have a necessary quality of confidentiality;
• the information given or received imports an obligation of confidence; and
• there has been an unauthorised use of that information: Coco v A N Clark (Engineering) Ltd [1969] RPC 41 (‘Coco’). For a discussion as to what is confidential information in the context of successive representation see Rule 10.

31 See also the Legal Profession (Barristers) Rules 2011 (Qld), rr 111-12 also reflecting the practicalities of sharing confidential information between a client's legal representatives.

32 This is supported by case law: Marriage of Griffis (1991) 14 Fam LR 782, 786 (Mullane J); Mortgage Express Ltd v Bowerman & Partners [1999] 2 All ER 836, 844 (Millett LJ).

33 GE Dal Pont 'Lawyers' Professional Responsibility’ Thomson Reuters 5th ed. 2013 [10.85]. 

34 S Shepherd, 'Keeping secrets – or not: When and why client confidences may need to be shared' (2012) 32(7) Proctor 32, 32.
<https://qls.com.au/Content-Collections/Articles/Keeping-secrets-or-not>

35 Queensland Law Society, Keeping those confidences (2011)

36 See also: Bullivant v Attorney-General for Victoria [1901] AC 196.

37 N Watt, 'Breaching confidentiality – the illegality exception' (2008) 28(1) Proctor 35.