Snapshot
- Self-interest, gossip, altruism: lawyers have breached client confidentiality for a variety of reasons, but irrespective of motive, disclosure of client information carries serious risks and consequences.
- In Australian law, the duty of confidentiality is based in contract, equity and professional rules.
- Some of the most egregious breaches of client confidentiality can occur when lawyers become informants for police or other government authorities.
The ethical obligation of lawyers to maintain the confidentiality of communications with their clients is well known not only to lawyers but also to members of the community. It is the assurance of confidentiality that encourages clients to disclose to their lawyer the most intimate details of their personal and business affairs. A client’s full and frank disclosure of all relevant circumstances ensures that the lawyer has all the necessary information to provide accurate legal advice. Accurate legal advice enables clients to order their personal and business affairs within the law and this advances the rule of law. It also fosters public confidence in lawyers and the legal system, which is central to the furtherance of the administration of justice.
Scope of the duty
In the well-known 1836 case of Taylor v Blacklow (1836) 3 Bing (NC) 236; 132 ER 401, Gaselee J of the Court of Common Pleas stated that the first duty of an attorney is to keep the secrets of his client. In the same case, Vaughan J described a lawyer’s duty of confidence as ‘a great moral duty’. In the present day Australian legal profession, the duty of confidentiality is based in contract, equity and professional rules.
A duty of confidence will be implied into the retainer between the lawyer and the client in the absence of an appropriate express term.
Lawyers are also under an equitable obligation to preserve confidentiality of information provided by their client. The duty of confidentiality arises from the fiduciary nature of the relationship between a lawyer and his or her client and will last as long as the information retains its confidential quality.
Professional conduct rules which impose a duty of confidence have been enacted in many jurisdictions. They include r 9.1 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 and r 114 of the Legal Profession Uniform Conduct (Barristers) Rules 2015.
In-house counsel are subject to the same duty of confidentiality as lawyers in private practice. However, as employees, it may be possible for in-house lawyers to disclose confidential information relating to potential wrongdoing to more senior officers of their organisation without breaching confidentiality.
Key exceptions to the duty
- disclosure authorised by the client;
- disclosure compelled by law;
- disclosure to enforce the lawyer’s entitlement to remuneration; and
- disclosure to defend disciplinary or legal proceedings against the lawyer;
- disclosure for the purpose of obtaining advice in connection with the lawyer’s legal or ethical obligations; and
- disclosure for the purpose of avoiding the probable commission of a serious criminal offence or for the purpose of preventing imminent serious physical harm.
Most of these exceptions are reflected in professional conduct rules.
Ramifications of breaching the duty
Unauthorised disclosure of a client’s confidential information by a lawyer may have a range of serious consequences including embarrassment to the lawyer, damage to the lawyer’s reputation and loss of clients. The client may seek the intervention of the court. By virtue of the implied term of confidentiality in the retainer, a breach of the duty of confidence may attract damages for breach of contract. A client could also seek an injunction to restrain the lawyer from committing a breach of confidence. A breach of client confidentiality may also constitute a breach of the professional conduct rules and result in disciplinary action against the lawyer. The ultimate sanction for the lawyer is losing the right to practise law.
Lawyers behaving badly
Lawyers have breached the duty of confidence in a variety of ways. Examples include:
- Disclosure to the media by two of Schapelle Corby’s lawyers. See: Legal Services Commissioner v Tampoe [2009] QLPT 14; Legal Practitioners Complaints Committee v Trowell [2009] WASAT 42; [2009] WASAT 42 (S);
- Disclosure to the public at large in a book about a client’s case. See: Jodi Ann Arias v Laurence Nurmi (Superior Court of the State of Arizona, case number CV2017-014091);
- Disclosure of J K Rowling’s authorship of a book to a trusted friend (this matter was ultimately settled);
- Disclosure to the other side. See: Legal Practitioners Complaints Committee v Walton [2006] WASAT 155; [2006] WASC 213;
- Disclosure by in house counsel as whistle blower. See: Balla v Gambro 584 N.E.2d 104 (1991 Ill); and
- Lawyers acting as informants. See: AB v CD (2018) 362 ALR 1 and further below.
Lawyers acting as informants for police
Some of the most egregious breaches of client confidentiality can occur when lawyers become informants for police or other government authorities. Such breaches can result in a substantial miscarriage of justice which warrants the setting aside of a criminal conviction. It is instructive to compare the approach of courts in the United States and courts in Australia in dealing with criminal cases where a lawyer has become an informant.
There have been a number of cases in the United States involving the use of attorneys as informants. Whilst the courts have criticized this conduct, they have sometimes affirmed convictions obtained through the use of lawyer informants and have not always sanctioned such lawyers. An interesting case is United States v Marshank 777 F. Supp. 1507 (ND Cal. 1991). This case involved attorney Ronald Minkin who, over a three year period, provided information to federal prosecutors about his client, Steven Marshank. The District Court for the Northern District of California held that the prosecution’s collaboration with Mr Minkin violated Mr Marshank’s Fifth and Sixth Amendment rights to due process of law and assistance of counsel and dismissed the indictment.
The high-profile Lawyer X case indicates that Australian courts view lawyers acting as informants with the utmost seriousness. The use of criminal defence barrister Nicola Gobbo as an informant for Victoria Police has potentially put at risk a number of high-profile criminal convictions. In February 2019 it was revealed that Ms Gobbo, at various times between 1 January 1995 and 13 January 2009, acted as a police informant with Victoria Police and informed against some of her clients.
The High Court of Australia decided that disclosure of Ms Gobbo’s identity was in the public interest for the following reasons: ‘[Ms Gobbo’s] actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of [her] obligations as counsel to her clients and of [her] duties to the court … As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system. It follows … that the public interest favouring disclosure is compelling: the maintenance of the integrity of the criminal justice system demands that the information be disclosed and that the propriety of each Convicted Person’s conviction be re-examined in light of the information. The public interest in preserving [Ms Gobbo’s] anonymity must be subordinated to the integrity of the criminal justice system.’ (AB v CD (2018) 362 ALR 1 at [10]).
On 26 July 2019, the Victorian Court of Appeal allowed an appeal against conviction and acquitted Faruk Orman of murder on the basis that, while he was a client of Ms Gobbo, she took active steps to ensure that another one of her clients gave evidence against him in his murder trial. The Crown conceded that this conduct constituted a substantial miscarriage of justice. Mr Orman had already served 10 years of his 14 year non-parole period. The Court held: ‘The Director concedes that Ms Gobbo, while acting for Mr Orman, pursued the presentation of the principal evidence against him on the charge of murder. Self-evidently, that conduct was a fundamental breach of her duties to Mr Orman and to the Court. … On the facts as conceded, Ms Gobbo’s conduct subverted Mr Orman’s right to a fair trial, and went to the very foundations of the system of criminal trial. There was, accordingly, a substantial miscarriage of justice’ (Orman v The Queen [2019] VSCA 163 at [11]–[12]). The Court went on to say: ‘Plainly, these … matters … affect the integrity of our system of criminal trial which is, of course, a cornerstone of our democracy’ (at [17]).
As is well known, the Victorian government established a Royal Commission into the Management of Police Informants to independently examine the number of, and extent to which, cases had been affected by the conduct of Ms Gobbo and inquire into Victoria Police’s recruitment and management of informants. The publication of the Royal Commission’s Final Report on 1 July 2020 is eagerly anticipated by the legal profession and the community as a whole.
