31. Inadvertent disclosure

1. Unless otherwise permitted or compelled by law, a solicitor to whom material known or reasonably suspected to be confidential is disclosed by another solicitor, or by some other person and who is aware that the disclosure was inadvertent must not use the material and must:
   1. return, destroy or delete the material (as appropriate) immediately upon becoming aware that disclosure was inadvertent; and
   2. notify the other solicitor or the other person of the disclosure and the steps taken to prevent inappropriate misuse of the material.
2. A solicitor who reads part or all of the confidential material before becoming aware of its confidential status must:
   1. not disclose or use the material, unless otherwise permitted or compelled by law,
   2. notify the opposing solicitor or the other person immediately, and
   3. not read any more of the material.
3. If a solicitor is instructed by a client to read confidential material received in error, the solicitor must refuse to do so.

Commentary

31.1 Not to use inadvertently disclosed material

Rule 31 is designed to preserve confidential information which may have been accidentally disclosed. A solicitor who mistakenly receives information that they reasonably suspect to be confidential must stop reading it, destroy or return it, and notify the solicitor who sent it. The Rule applies to any mistaken disclosure, not only to privileged communications, or to disclosures in discovery or other curial processes. The Law Institute of Victoria's Inadvertent Disclosure Guidelines (20 November 2008), give practical advice on the operation of the Rule.

If the receiving solicitor believes that there is a genuine dispute over the ‘confidentiality’ of the material, then the material should be secured, pending resolution of the issues in dispute by agreement or court order.

This Rule does not alter the law concerning express or implied waiver of legal professional privilege: see Rule 9.2.2. 

The High Court of Australia considered the question of inadvertent disclosure in the context of discovery in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46⁸³ ("Expense Reduction"). In Expense Reduction the parties were ordered to give verified, general discovery. ERA's solicitors served their client's verified List of Documents on the Armstrong Parties’ solicitors, letters were exchanged whereby ERA's solicitors claimed that a number of the documents were subject to legal professional privilege and had been inadvertently disclosed. ERA (through its solicitors) requested the inadvertently disclosed documents be returned and that the Armstrong Parties solicitors provide an undertaking to not use information gained as a result of the inadvertent disclosure. The Armstrong Parties disputed their obligation to return the documents and give such an undertaking. The High Court considered a number of issues:

1. Waiver: "waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege)": Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305, 326. In Expense Reduction the court held that a mistake does not amount to an abandonment of privilege and that any question the Armstrong Parties had about ERA's claims for privilege were dispelled by the letter from ERA's solicitors promptly advising of the inadvertent disclosure. The court also said that the issue of waiver should never have been raised [35];
2. Complexity of the discovery process: Discovery is not intended to affect a person's ability to maintain confidentiality of documents where the law permits. The court said:
   "It follows that where a privileged document is inadvertently disclosed, the court should ordinarily permit the correction of the mistake and order the return of the document, if the party receiving the documents refuses to do so" [45].
3. Professional responsibility: In Expense Reduction the court referred to a solicitor's responsibility in these words:

"The question for a party to civil proceedings and its legal representatives is not just whether there is any real benefit to be gained from creating a dispute about whether a mistake in the course of discovery should be corrected. The CPA imposes a positive duty upon a party and its legal representatives to facilitate the CPA's purposes. Requiring a court to rule upon waiver and the grant of injunctive relief in circumstances such as the present could not be regarded as consistent with that duty" [64].

A solicitor's duty should be directed towards assisting "the court to facilitate the overriding purposes of the …" Uniform Civil Procedure Rules 1999 ('UCPR'). "It is an example of professional, ethical obligations of practitioners supporting the objectives of the proper administration of justice" [67].

Consequences. While solicitors receiving confidential information are bound by Rule 31, solicitors who have made the inadvertent disclosure may have breached their duty to the client: see Rule 9. All solicitors should therefore establish systems to avoid the risk of mistaken disclosure. Solicitors should also consider, in the context of disclosure or discovery, the consequences of waiver (express, implied or imputed).⁸⁴

Example. In Kingston v State Fire Commission (1998) 8 Tas R 152, solicitors for the plaintiff briefed counsel to advise on liability, quantum and evidence in a personal injuries action. The barrister mistakenly returned the brief to the solicitors for the defendant, who acting upon advice, read the brief, took notes and made photocopies. The court held that inadvertent disclosure of the material caused it to lose its privileged status but this did not mean that the plaintiffs had waived privilege. The confidential status of the material had not been lost. The defendant's solicitors and counsel were restrained from making any use of the inadvertently disclosed material for the purpose of the action.

For consideration of the issues that may arise from the sending of documents between opponents and the need to prevent "mining" of metadata, see GE Dal Pont, 'Reading outside the lines' (2012) 50(1) Law Society Journal 40. 

83 See N Knowlman 'Inadvertent Disclosure and your Duty to the Administration of Justice' (3 December 2013), QLS Ethics website.

84 GE Dal Pont, Lawyers' Professional Responsibility (Thomson Reuters, 5th ed, 2013) 405, [11.275].