Week 5 - Confidentiality and Privelege

Question 1

What is confidentiality?

Answer 1

A long-lasting duty to gain full disclosure from clients

Question 2

Does confidentiality survive the retainer?

Answer 2

Yes, indeed.

Question 3

What is the solicitors’ rule on confidentiality?

Answer 3

Sol R 9.1 - sol must not disclose any information which is confidential to a client.

Question 4

What are the barristers’ rule on confidentiality?

Answer 4

Bar R 114 - must not disclose any confidential information

Question 5

What are the solicitors’ exceptions as per sol R 9.2?

Answer 5

May disclose confidential info if:

1. client expressly/impliedly authorises disclosure.
2. the sol is permitted/compelled by law to disclose (e.g. terrorism)
3. For the purpose of obtaining advice in connection with the sol’s legal/ethical obligations.
4. to avoid the probable commission of a serious criminal offence (has to be future conduct)
5. to prevent imminent serious physical harm to the client/another person.
6. info is disclosed to the insurer of the sol, law practice to sue client or if client is pursuing disciplinary actions.

Question 6

What is legal privilege?

Answer 6

Legal privilege prevents disclosure of any information relevant for legal advice or litigation

Question 7

Where is privilege sourced in?

Answer 7

public policy, common law, and statute

Question 8

Who may privilege be waived by?

Answer 8

The client - Baker v Campbell (1983)

Question 9

Section ____ of the _______ Act prohibits advice privilege from being adduced

Answer 9

Section 118 of the Evidence Act prohibits advice privilege from being adduced

Question 10

Section ____ of the _______ Act prohibits litigation privilege from being adduced

Answer 10

Section 119 of the Evidence Act prohibits advice privilege from being adduced - whether this is for a current or anticipated proceeding

Question 11

What are the three steps to establish privilege?

Answer 11

1. Communication needs to pass b/w the client and the lawyer.
2. Must be made for the dominant purpose of legal advice/litigation
3. Communication must be confidential

Question 12

What are the limits on privilege?

Answer 12

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)

Question 13

What is the test for privilege for in-house lawyers?

Answer 13

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.

Question 14

What is the central feature of in-house legal privilege ?

Answer 14

Independence!

Question 15

When can privilege be abrogated by statute?

Answer 15

As per Fed Commission of Tax v Citibank (1989), a stat provision has to be explicitly abrogating privilege or by necessary implication.

Question 16

What was found in Daniels Corp International v ACCC with respect to privilege?

Answer 16

That the broad powers of s 155 Trade Practice Act, do not abrogated privilege bc there was no explicit statutory provision with that effect

Question 17

What happens to privilege when you seek to use it to your advantage?

Answer 17

Implied waiver of privilege is presumed when you use the privileged info to your advantage.

Question 18

In circumstances of inadvertent disclosure, what must you do?

Answer 18

R 31.1 must return, destroy or delete it ASAP. And, must notify the sol

Question 19

In circumstances of a solicitor reading confidential information, what must they do?

Answer 19

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.

Question 20

When is information privileged in settlement cases?

Answer 20

S 131 Evidence Act: communication or document, in connection with attempt to negotiate a settlement of the dispute = privilege.

Question 21

If the dominant purpose of the information is to achieve settlement, does that make it privileged?

Answer 21

Yes, indeed.

Question 22

What are the three elements of privileged info (for settlement)?

Answer 22

1. Needs to be litigious dispute.
2. Communication has to be expressly/impliedly noted that the info will not be disclosed.
3. For the dominant purpose of achieving negotiation.

Question 23

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?

Answer 23

No because the communication was made for the dominant purpose of a medical opinion, not negotiation - Field v Commissioner for Railways for NSW (1957)

Question 24

Does there need to be a formal retainer to cover client-solicitor privilege?

Answer 24

Nah, it extends to all irrespective of a formal retainer.