What are the exceptions to the duty of confidentiality?
These are set out in Rule 9.2 of the Australian Solicitors Conduct Rules 2012 ('ASCR'). You may disclose confidential client information 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 information 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 information for the sole purpose of avoiding the probable commission of a serious criminal offence;
9.2.5 - the solicitor discloses the information 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 entity.
That the client has died is not an exception. The duty survives the client’s death and is then owed to the deceased’s estate, and authority to disclose confidential information may be sought from the personal representatives.
The end of the retainer is also not an exception. It is clear that this duty outlives the retainer.
See also Keeping secrets or not by Stafford Shepherd, Proctor August 2012.