By Amelia Hagley -
Inadvertent disclosure occurs when, during the course of legal dealings, confidential and/or privileged information (i.e. letter of advice to a client) is mistakenly provided and/or disclosed to another party (for instance, privileged documents are accidentally added in the documents for inspection by another legal party during discovery, or accidentally emailing a letter of advice to another party). A solicitor’s obligation regarding confidentiality is contained in section 9 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (‘Conduct Rules’). Part 3.10 of the Evidence Act 1995 (NSW) defines and outlines the different types of privileges including client legal privilege, professional confidential relationship privilege, when privilege is lost and so forth.
Inadvertent disclosure may not always be a critical issue and can be remedied if the solicitor acts swiftly. However, depending on the nature of the material and the circumstances of the disclosure, an inadvertent disclosure may be construed as a waiver of privilege. If privileged information is inadvertently disclosed, it is imperative for solicitors to take proactive steps to mitigate the risk of the disclosure from adversely impacting your client.
Section 31 of the Conduct Rules governs how we, as solicitors, should respond to an inadvertent disclosure of confidential material. Failure to comply with this section may be a breach of sections 3, 4, 5, 9, and 30 of the Conduct Rules and it may constitute unsatisfactory professional conduct or professional misconduct. It may also give rise to disciplinary action. Accordingly, it is important to understand and abide by the rules surrounding inadvertent disclosure.
Generally, if you receive or read information that you believe is confidential, then you need to immediately stop reading, notify the solicitor who sent it to you, confirming you will not read the document further, and delete it. If your client becomes aware that you have received confidential material in error and instructs you to read it, you must refuse to do so having regard to your professional obligations under the Conduct Rules. These rules are in place to protect the proper administration of justice. By reading confidential material sent in error, you may put yourself in a position where you cannot continue acting for your client and may have to cease acting.
While most cases of inadvertent disclosure occur through written means, it is feasible that an inadvertent disclosure could occur verbally. For instance, accidentally pocket dialling the opposing solicitor, or failing to put yourself on mute during an audio visual link court appearance, could be quite disastrous if the content of the conversation is confidential.
Mistakes happen, but it is how you respond that counts. It is best to try and create good ‘legal habits’ at the beginning of your career so that you prevent the risk of an inadvertent disclosure.
Mistakes happen, but it is how you respond that counts.
Best practice tips:
1.Always mark documents (that attract legal privilege) with the words ‘confidential and subject to professional legal privilege’. By doing this, you have clearly indicated to the reader that this material is privileged and, if it was inadvertently produced during discovery due to administrative error, it becomes obvious to the solicitor reading the document that it was a mistake. The obligation then falls to the reader of the document to comply with section 31.2 of the Conduct Rules.
2.This goes without saying, but before pressing send on an email to the other side:
- always make sure you have client instructions and approval from your supervisors before sending something out that attracts privilege;
- always open the attachments and verify the documents before sending it out. It is possible that a file has been saved and not labelled correctly, or there were scanning errors. By checking the documents, you alleviate the risk of inadvertent disclosure;
- make sure you redact any information that is confidential and privileged as required by law; and
- do not rush, take an extra moment to think about what you are sending out.
3. Always check that the documents being produced in discovery are not privileged before disclosing it. While it is a mundane task to do in a busy practice, the cost of failing to do so will outweigh the legal cost of taking the time to check the documents for privileged information. As Lord Justice Slade noted in Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027, privilege can be lost by inadvertence. In Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391, Justice Goldberg was satisfied there had not been an ‘obvious mistake’ and his Honour concluded there had been a waiver of privilege over a letter that contained privileged information after a solicitor had viewed it in the course of discovery. Accordingly, if an inadvertent disclosure occurs, the solicitors for the disclosing party must act quickly to confirm that the disclosure was an obvious mistake.
4. If it is established that there has been an inadvertent disclosure, it is important to take the following steps:
- if the disclosure was via email, you should contact the other side by phone and email them to inform them that it was sent in error and ask them to delete the contents. It is helpful to try and recall the email as it operates as contemporaneous evidence of the steps taken;
- if it was an inadvertent verbal disclosure, you should contact the other side and inform them that the disclosure was an ‘obvious mistake’ and the information should not be relied upon by them under the Conduct Rules; and
- inform your client of the error and advise them of any risks related to the disclosure.
Ultimately, irrespective of whether you have received or disclosed confidential or privileged information, it is the prompt steps taken following the inadvertent disclosure, that will protect you and your client.
