Solicitors are bound by conduct rules which govern the way we practice law.

One of those rules is the obligation to maintain a client’s confidentiality.

A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person who is not affiliated with the firm, unless that person is a barrister or other person engaged by the solicitor for the purposes of delivering or providing legal services in relation to the client.

There are exceptions to this rule. Some of these include:

• If you expressly or impliedly authorise disclosure of confidential communication.
• If the solicitor is permitted or compelled by law.
• If it is necessary to avoid the probable commission of a serious criminal offence.
• If it is disclosed for the purpose of preventing imminent serious physical harm to you or another person.

Keep in mind that as an officer of the Court, a solicitor’s duty is to the Court. This means that, amongst other things, a solicitor cannot mislead the Court. Where a solicitors duty to a client and their duty to the Court conflict, the duty to the Court and the proper administration of justice will take precedence.

An example of this is the client discloses to the solicitor that they have $1,000,000 in a bank account. The client does not wish to disclose the bank account. The solicitor cannot disclose the account. But the solicitor will be unable to act for the client if the account is not disclosed. The solicitor cannot represent to the court that the disclosure made by the client is full disclosure when they know that it is not full disclosure.

Can the other party find out what I have told my solicitor?

Related to the concept of confidentiality is what is known as legal professional privilege.

Legal professional privilege is a term which describes a common law right or “immunity”[1], also found in statute law in the Evidence Act 1995[2].

In simplified terms, legal professional privilege means that a party and/or solicitor does not have to disclose information, produce documentation nor be compelled to give evidence if, by doing so, it would disclose confidential communications between the solicitor and the client.

In deciding whether a party should be excused from disclosing information, producing documentation or giving evidence the Court must find that the dominant purpose of the communication was the provision of legal advice and/or advice given in the context of existing or anticipated litigation.

Legal professional privilege is absolute unless it is waived (and that can be either express of implied) or it is overridden by the enactment of statute law.

This occurred during the investigation of James Hardie.

Parliament deemed that the ‘public interest’ in discovering the truth by facilitating a comprehensive investigation of the matters arising from the New South Wales James Hardie Special Commission of Inquiry should override the parties common law right to legal professional privilege.

Accordingly a law was passed by the Parliament to override the privilege.

Why do we have confidentiality and legal professional privilege?

Confidentiality is one of the cornerstones of the legal profession.

It is thought that for a solicitor to “be able to facilitate the administration of justice they must have open and frank communications with their client…clients will be more likely to engage in open and honest communication, and disclose all relevant matter if they are assured that their communications will remain confidential”.[3]

[1] Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543 at 11.

[2] Section 131A, 117, 118.

[3] The Hon. Justice John Gilmour, “Legal professional privilege: Current issues and latest developments” presented at the Law Society of Western Australia Seminar on 13 March 2012 at 4, considering Attorney – General for the Northern Territory v Maurice (1986) 161 CLR 475.