Practitioners should not use the phrase “Off the Record”

‘Can we have an off-the-record conversation?’ 

That request is sometimes heard in practice, especially in litigation, and a prudent practitioner’s response should always be the same: ‘no’. Not because it puts your opponent off-balance, or confers some vital tactical advantage, but because there is no such thing.  

This is because the phrase ‘off-the-record’ has no meaning as determined by court or statute, which means that it can encompass anything or nothing and, crucially, it can also mean different things to different people in the same conversation. In the absence of guidance from the courts, ascertaining the meaning of the phrase, ‘off-the-record’ after the conversation in question has occurred becomes a difficult exercise, and one to be avoided if at all possible.

What must be strictly resisted is any temptation to regard ‘off-the-record’ as equivalent to without prejudice; they are likely to be regarded as different things by a court of law (should things come to that pass). This is due to simple logic: if a practitioner seeks to enter without prejudice negotiations, they can simply make that request. By electing to use a different term, there is a strong presumption that something other than without prejudice negotiations were contemplated by the parties.

In addition to these legal ambiguities, the concept of an ‘off-the-record’ conversation raises several ethical issues which also make the process problematic. For a start, if a practitioner is invited to participate in ‘off-the-record’ discussions in the absence of their client, how are instructions to be obtained in relation to those discussions? A solicitor is bound to follow a client’s lawful, proper instructions,1 and is also obliged to provide to the client all knowledge the solicitor has which is pertinent to the client’s case.2 It is impossible to reconcile these duties with the idea of a conversation which reveals to a solicitor information relevant to the client’s case, but which cannot be revealed to the client.

Although it should go without saying, it is worth noting that any practitioner seeking to use the ambiguity of the phrase ‘off-the-record’ to make use of information or admissions made in the relevant conversation will fail to discharge the duty to act honestly,3 and will be acting contrary to their duty to the court and the administration of justice.4

Solicitors seeking to enter into negotiations to resolve a dispute should make use of without prejudice processes which have well understood, thoroughly defined and long accepted meanings and limitations. Prudent practitioners will keep ‘off-the-record’ conversations off the agenda.

1 Australian Solicitors Conduct Rules 2012 (Qld) (‘ASCR’) r 7 and 8.

2 Spector v Ageda [1973] Ch 30.

3 ASCR rr 4 and 6.

4 ASCR r 3.