- 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.