Week 5 - Confidentiality and Privelege Flashcards
What is confidentiality?
A long-lasting duty to gain full disclosure from clients
Does confidentiality survive the retainer?
Yes, indeed.
What is the solicitors’ rule on confidentiality?
Sol R 9.1 - sol must not disclose any information which is confidential to a client.
What are the barristers’ rule on confidentiality?
Bar R 114 - must not disclose any confidential information
What are the solicitors’ exceptions as per sol R 9.2?
May disclose confidential info if:
- client expressly/impliedly authorises disclosure.
- the sol is permitted/compelled by law to disclose (e.g. terrorism)
- For the purpose of obtaining advice in connection with the sol’s legal/ethical obligations.
- to avoid the probable commission of a serious criminal offence (has to be future conduct)
- to prevent imminent serious physical harm to the client/another person.
- info is disclosed to the insurer of the sol, law practice to sue client or if client is pursuing disciplinary actions.
What is legal privilege?
Legal privilege prevents disclosure of any information relevant for legal advice or litigation
Where is privilege sourced in?
public policy, common law, and statute
Who may privilege be waived by?
The client - Baker v Campbell (1983)
Section ____ of the _______ Act prohibits advice privilege from being adduced
Section 118 of the Evidence Act prohibits advice privilege from being adduced
Section ____ of the _______ Act prohibits litigation privilege from being adduced
Section 119 of the Evidence Act prohibits advice privilege from being adduced - whether this is for a current or anticipated proceeding
What are the three steps to establish privilege?
- Communication needs to pass b/w the client and the lawyer.
- Must be made for the dominant purpose of legal advice/litigation
- Communication must be confidential
What are the limits on privilege?
It cannot act when there is a clear contravention of the court - R v Bell (mother took child against order of court).
Or future wrongdoing (e.g. fraud, seeking to evade the law)
What is the test for privilege for in-house lawyers?
Whether the correspondence b/w an in-house lawyer and an employee of the organisation was brought into existence by the day to day business of the company or did the lawyer provide it within the process of giving legal advice.
What is the central feature of in-house legal privilege ?
Independence!
When can privilege be abrogated by statute?
As per Fed Commission of Tax v Citibank (1989), a stat provision has to be explicitly abrogating privilege or by necessary implication.
What was found in Daniels Corp International v ACCC with respect to privilege?
That the broad powers of s 155 Trade Practice Act, do not abrogated privilege bc there was no explicit statutory provision with that effect
What happens to privilege when you seek to use it to your advantage?
Implied waiver of privilege is presumed when you use the privileged info to your advantage.
In circumstances of inadvertent disclosure, what must you do?
R 31.1 must return, destroy or delete it ASAP. And, must notify the sol
In circumstances of a solicitor reading confidential information, what must they do?
R 31.2. a sol who reads part/all of the confidential information before becoming aware of its confidential status - must notify the other sol and not read anymore.
When is information privileged in settlement cases?
S 131 Evidence Act: communication or document, in connection with attempt to negotiate a settlement of the dispute = privilege.
If the dominant purpose of the information is to achieve settlement, does that make it privileged?
Yes, indeed.
What are the three elements of privileged info (for settlement)?
- Needs to be litigious dispute.
- Communication has to be expressly/impliedly noted that the info will not be disclosed.
- For the dominant purpose of achieving negotiation.
If a bloke confesses to a doctor that he got off the train when it was moving, and this information was relevant for an upcoming negotiation, is it privileged?
No because the communication was made for the dominant purpose of a medical opinion, not negotiation - Field v Commissioner for Railways for NSW (1957)
Does there need to be a formal retainer to cover client-solicitor privilege?
Nah, it extends to all irrespective of a formal retainer.
