Balancing Justice With Confidentiality

Wednesday 30 March 2016 @ 1.57 p.m. | Judiciary, Legal Profession & Procedure | Legal Research

Confidentiality is a cornerstone of the lawyer client relationship. The Law Society of New South Wales has identified the duty of confidentiality as one of the foundations of the fiduciary relationship between the client and the lawyer. Confidentiality is also a tenet of the NSW Law Society's Statement of Ethics.

However, confidentiality and the withholding of information must be balanced against discovering the truth. It boils down to a competition between two ideals: the first, for a person to have access to legal advice without fear of repercussion so that they can speak freely with their lawyer; the second, the desire to reach a true and just verdict in every case. The struggle between these two ideals is most evident when considering lawyers as witnesses.

Confidentiality

In New South Wales, client legal privilege is protected under Division 1 of Part 3.10 of the Evidence Act 1995 (NSW). Section 117 of the same Act defines confidential communication when at least one of the parties to a communication believes there is an implied or express obligation to keep the communication undisclosed. This definition is exactly replicated in section 117 of the Commonwealth Act, also entitled the Evidence Act 1995 (Cth), which protects confidential information in the context of Federal Courts. Sections 118 and 119 of both the Commonwealth and New South Wales Acts clearly indicate that evidence should not be given in litigation if it would disclose a confidential communication made between a client and lawyer, or a client and multiple lawyers, if the 'dominant purpose' of that communication was to give legal advice, either generally or for a proceeding.

The New South Wales Professional Conduct and Practice Rules 2013 (Solicitors’ Rules) also speak for the confidential nature of the lawyer-client relationship. Rule 9 of the Solicitors' Rules is entitled 'Confidentiality' and explicitly states that a lawyer cannot disclose confidential information which they received from the client except in special circumstances. Such circumstances include the client authorising the lawyer to reveal the information, protecting the client from physical harm, or under the compulsion of the law.

Evidence from the Witness

In contrast, Section 12 of the Evidence Act 1995 (Cth) outlines very clearly that 'every person is competent to give evidence' and that those who are competent are also compellable to give evidence. This is a very broad starting point with regards to who can be called to give evidence in a case. It is also an understandable rule; in the pursuit of justice there should be as few roadblocks as possible. That said, the Evidence Act 1995 (Cth) does go on to indicate various exceptions to this all-encompassing rule. Interestingly, section 16 of the Act excludes judges and jurors from being compelled to give evidence regarding proceedings they were involved in, except with leave of the court. Yet, there is no specific exclusion for lawyers or client legal privilege listed in Part 2.1, entitled 'Witnesses', of the Act. Lawyers and privilege are discussed separately in Part 3.10.

Lawyer as a Witness

There is then a clear conflict of ideas that arises when calling a lawyer as a witness in a case. On the one hand, and as a general rule, a lawyer is not permitted to disclose confidential communications that occurred between themselves and their client. But on the other hand there is a clear want for full disclosure, as the basic rule for witnesses in the Evidence Act 1995 (Cth) is that all people are capable of being witnesses, and are therefore compellable to give evidence. Walking the line between these competing ideas can be difficult, and it is important to understand when information can and cannot be given as evidence.

Currently, the law favours legal client privilege, with the very clear exceptions to giving evidence found in the identical sections 118 and 119 of the Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW). These sections exempt lawyers from giving evidence if it involves disclosing confidential information, and override the basic ideal of all people being compellable witnesses. The right of the individual to legal professional privilege seems to prevail.

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