‘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 difficult to reconcile these duties with an agreement to receive information relevant to the client’s case on the basis that it cannot be revealed to the client.
A practitioner should not agree, expressly or by implication, to receive information on the basis that it will be withheld from their client without first considering their obligations to the client. If another practitioner or person indicates that information is to be ‘off-the-record' or confidential, the recipient should not be afraid to clarify the proposed basis for the communication before the information is disclosed. If what is sought is an assurance that the information will not be disclosed to the client, such an assurance should not ordinarily be given without the client’s informed consent.
Care is also required because an assurance given by a solicitor may, depending upon its terms and the circumstances in which it is given, amount to an undertaking. An undertaking may be express or implied and may not use the word ‘undertaking’.3
The fact that a person describes information as ‘off-the-record' or confidential does not, without more, determine the obligations of the recipient. Equally, the absence of an express agreement does not necessarily mean that information is free from obligation of confidence. The nature of the information, the circumstances in which it was communicated and what was said or agreed between the parties may all be relevant.
Where the practitioner is subject to an obligation not to disclose information which ought properly to be communicated to the client, it is usually appropriate to seek the discloser's consent to release the practitioner from that obligation. In some circumstances, the client may also be able to give informed consent to the practitioner receiving or retaining specific information which will not be disclosed to them. However, the client must be able to appreciate the consequences of giving that consent.4 If the practitioner cannot disclose sufficient information to enable the client to give informed consent without breaching the obligation of confidence, informed consent may not be possible. If the competing obligations cannot be resolved, the practitioner should consider whether they can continue to act.
Although it should go without saying, it is worth noting that a practitioner should not seek to exploit the ambiguity of the phrase ‘off-the-record’ by making use of information or admissions in a manner inconsistent with what was understood or agreed. Such conduct may engage the practitioner’s duty to act honestly,5 and their paramount duty to the court and the administration of justice.6
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. Where confidentiality or some other restriction is intended, practitioners should identify and agree the basis of the communication before information is disclosed. Prudent practitioners will keep ‘off-the-record’ conversations off the agenda.
1 Australian Solicitors' Conduct Rules 2023 (Qld) (‘ASCR’) r 8.
2 Spector v Ageda [1973] Ch 30.
3 ASCR r 6.1; Queensland Law Society, Guidance Statement No. 01 – Undertakings
4 See Queensland Law Society, ‘Can I keep information from my client for their own good?’
5 ASCR rr 4 and 6.
6 ASCR r 3.