What is so special about lawyers anyway?

Over the last few weeks, the community has become aware of an extraordinary shock to the criminal justice system in Victoria. At this very moment, legal ethics professors across the country are no doubt excitedly rewriting their curricula to make room for the ‘Lawyer X’ scandal.

On Monday, 3 December 2018, the full bench of the High Court handed down a decision relating to a Melbourne barrister under the pseudonym of Lawyer X who, over the course of a decade, reportedly informed on hundreds of criminals to the Victorian Police, including dozens of her own clients. After expressing its displeasure in the strongest possible terms with the events before it, the Court ultimately held that “[t]he public interest in preserving EF's anonymity must be subordinated to the integrity of the criminal justice system”, thus authorising the disclosure of her communications with the Victorian Police to a number of individuals against whom she had informed, including former clients, some of whom are currently serving lengthy prison sentences.

There is much more to unfold here in terms of the legal remedies potentially available to those individuals, the impact these revelations may have on their convictions as well as the impact on others involved in the complicated web of activities. Indeed, a Royal Commission has been announced which will seek to address some of these issues; but that is a story for another day. This article is about the reasons why lawyers are in a unique position compared to other citizens, when faced with legal and ethical questions of public interest.

Since the High Court’s decision, a letter written by Lawyer X in 2014 has been published, in which she defends her actions as “altruistic”.¹ In that letter, Lawyer X asserts that “I maintain (despite what I understand from the media to be an incorrect ill-informed view taken by IBAC based upon who knows what version of events), that anything told to me or said in my presence about crimes being planned or committed cannot ever fall under the protection of legal professional privilege by a client.” That statement can, at its highest, be described as only partially correct.

Broadly speaking, legal professional privilege (LPP) serves to protect the disclosure of particular communications between a lawyer and their client when these communications are for the dominant purpose of seeking or providing legal advice, or for use in existing or anticipated legal proceedings.² LPP has a rich history tracing back to 16th Century England, and is one of the most fundamental common law duties related to the provision of legal advice. It is the client’s privilege, not the lawyer’s; in particular, it is not the lawyer’s to waive, except where permitted or compelled by law.

Under the Westminster System, on which all Australian governments are based, there is an important separation of powers between Parliament, the Executive and the Judiciary.  Lawyers are sworn in as officers of the Courts, and are thus an important part of this third arm of government.  The Honourable Justice Patrick Keane AC, speaking extra-curially, summarised this notion aptly, observing that “[i]n the traditional conception, the courts are an arm of government charged with the quelling of controversies … the courts, in exercising the judicial power of the state, are not ‘providing legal services’. The parties to litigation are not acting as consumers of legal services: they are being governed — whether they like it or not”.³ This imposes upon lawyers unique duties and responsibilities, one of which is protecting the special relationship of client and lawyer through the safeguarding of LPP.

LPP is intended to promote the public interest and protect the rights of the individual as against the state through its preservation of the confidentiality of communications between lawyers and their clients. This enables clients to have full and frank discussions with their lawyer, ultimately bolstering their ability to access justice and mount a proper defence.⁴ In satisfaction of this purpose, the privilege generally prevails when balanced against the competing public interest that all relevant material should be available to the court to ensure a fair trial.⁵

There are exceptions to LPP in specific circumstances, for example when privilege is waived or statute clearly qualifies or removes the privilege in instances where Parliament perceives there to be an inconsistent and superior public interest (such as an obligation to report suspected offences).⁶ The privilege may also be denied to a communication that is made for the purpose of frustrating the processes of the law, even though no crime or fraud is contemplated.⁷

There is also the fraud or ‘iniquity’ exception, which Lawyer X was likely alluding to in her letter. It is an accepted and longstanding principle that LPP may be lost in circumstances where the communication the subject of the privilege is, on a prima facie basis, “made in furtherance of, or as a step preparatory to, the commission of the fraud or wrong doing”.⁸ It is not difficult to believe that some of the communications that Lawyer X may have received from her clients might fall within this category (although query whose role it is to undertake the necessary enquiry before depriving a party of such a fundamental protection).⁹

However, lawyers owe other fundamental duties to their clients and the court by virtue of their unique role.  In the case of Lawyer X, these appear to have been disregarded.

In addition to LPP, other obligations regulate the way that lawyers fulfil their role within the third arm of government. The former Chief Justice of the Supreme Court of Victoria, Honourable Marilyn Warren AC has explained that “[t]he foundation of a lawyer’s ethical obligation is the paramount duty owed to the court... It is the courts who enforce rights and protect the citizen against the state, who enforce the law on behalf of the state and who resolve disputes between citizens, and between citizens and the state... Without the lawyers to bring the cases before the courts, who would protect the citizen? Who would enforce the law?”¹⁰

There is also a general doctrine of confidential information grounded in equity whereby a person who is in circumstances of confidence and is provided with information of a confidential nature, is not permitted to make unauthorised use of that information to the detriment of the party communicating it.¹¹ This obligation exists within the lawyer to client relationship to preserve “trust, candour and good faith in those relationships that constitute the fabric of society”.¹²

Underpinning all of this is the fact that lawyers owe an overarching fiduciary obligation to their clients, including to act in their best interests. In fact, the lawyer/client relationship is recognised as one of the few “status-based” fiduciary relationships, like trustee/beneficiary, agent/principal, director/company and partner/partner. 

A fiduciary may not use their position of trust and confidence, or any information acquired in the performance of their role, to gain a profit or advantage for themselves or a third party, nor may they otherwise enter into dealings that conflict with their best interests duty, without first obtaining the fully informed consent of the person to whom they owe those duties.¹³ These duties underpin the obligations owed by all lawyers to their clients and, notwithstanding any LPP exceptions, continue to operate to protect clients. It is apparent that Lawyer X did not obtain her clients’ consent before delivering adverse information about them to the Victorian Police.

A proper understanding of the role of lawyers informs the duties and obligations which accompany the position.   Whether criminal litigators or M&A lawyers, obligations of lawyers are built on the same foundations. It is not for the lawyer to choose those who are worthy of protection. As the Honourable Marilyn Warren AC observed, “[i]t is this inherent characteristic of the duty to the court that distinguishes the legal profession from all other professions and trades”.¹⁴ And that is no duty to take lightly.