By Russell Cocks, Solicitor
First published in the Law Institute Journal
Property lawyers do not often hold ‘privileged’ information. All information that comes to a lawyer about a client is confidential and is protected from disclosure by the duty to the client of confidentiality. The concept of legal professional privilege or, as it has come to be known recently, client professional privilege applies to a small subset of confidential information, being information relating to legal proceedings, current or anticipated.
Most property law is in the nature of process work – we process a transaction from inception (contract) to completion (settlement). Despite a tendency for some practitioners to adopt a combative attitude to the process – probably brought about by dissatisfaction with being involved in the process at all – relatively few property law transactions end up in legal proceedings. However a quick glance through the legal reports – and indeed through prior Property columns – reveals that the mundane processes of property law are responsible for a fair proportion of the cases that come before our courts. As a proportion of the number of transactions, disputes are few, but as a proportion of the number of disputes, property law is significant.
Therefore property lawyers, as well as litigators, need to be aware of Expense Reduction Analysts Group P/L v Armstrong Strategic Management and Marketing P/L [2013] HCA 46 (Armstrong). This judgment of the High Court has concluded that the overriding duty that lawyers owe to the court requires a lawyer who receives information from a lawyer acting for another party in legal proceedings, which has been inadvertently disclosed by that other lawyer, to return that information to the other lawyer and refrain from making use of that information in the proceedings.
This can only be described as a momentous decision. That it appeared to be so self-evident to all five judges who delivered a joint judgment is itself significant as the topic of inadvertent disclosure had lingered like a bad smell for many years. Legal scholars struggled with it and the Law Institute’s own guidelines could be described as ‘vague’ at best, and yet the High Court (overruling the NSW Court of Appeal) had absolutely no problems with concluding that, in relation to inadvertent disclosure, the duty to the court trumps the duty to the client.
This may be variously viewed as a triumph for the majesty of the law or another example of the law protecting its own. The language of the Armstrong judgment is all about the proper administration of justice and the ethical duty of practitioners to assist the court to efficiently resolve the real matters in dispute between the parties. There is even a suggestion that ‘in the not too distant past’ there would have been no need for the recently introduced – but not yet adopted in Victoria – rule 31 of the Australian Solicitors’ Conduct Rules that requires return of inadvertently disclosed information.
On the other hand, consider the issue from the point of view of the client who may be facing ruin because of a ‘little slip-up’ made by the client. Due to another ‘little slip-up’ the client’s lawyer has received information that is extraordinarily helpful to the conduct of the client’s case, indeed could lead to a speedy settlement of the dispute and allow the client to get on with his/her life. Disclosure of that ‘little slip-up’ may have dire consequences for the lawyer who was responsible for it but will that be of any concern to the client? When the client is told that, unfortunately for the client, the lawyer must return that information and can make no reference to it in the proceedings. Will the client gratefully bow to the majesty of the law? Or will the client simply regard the law as protecting its own?
The simple solution for the lawyers is that, in acknowledgement of our duty to the court, we return the information and do not bother our client with the details. What they don’t know will not hurt them. But can this be the correct way to fulfill our duty to the client – shield them from matters that do not concern them? This sounds like ‘secret men’s business’ and would be grist for the mills of the shock jocks.
Armstrong concerned privileged information but rule 31 of the Australian Solicitors’ Conduct Rules relates to confidential information – a much wider category. The reference to the rule in Armstrong would appear to be a strong endorsement of it by our highest court and so all information coming to a lawyer would now appear to be subject to suppression if inadvertently disclosed.
Tip Box
Whilst written for Victoria this article has interest and relevance for practitioners in all states.