Procedimiento de la fracción I del artículo 57 de la LOPSRM

4.48 Confidential communications between a practitioner and client are not admissible as evidence in court. This is known as

65. OLSC, Preliminary Submission, Appendix at 8.

66. F Combe, Submission at 7; For Legally Abused Citizens Inc, Submission 1 at 3 and Submission 2 at 8; OLSC, Submission at 24;

Law Society of NSW, Submission at 11; NSW Legal Reform Group, Submission at 6.

67. OLSC, Submission at 24; Law Society of NSW, Submission at 11.

68. OLSC, Submission at 24; Law Society of NSW, Submission at 11.

client legal privilege.⁶⁹ The purpose of the privilege is to preserve the confidentiality of communications between practitioner and client and thereby encourage clients to make full and frank disclosure to their lawyers of the circumstances that are relevant to their case.⁷⁰ This privilege belongs to the client and accordingly it may only be waived by the client, not by the practitioner, except on instructions.⁷¹

Exceptions to client legal privilege

4.49 There are two limited exceptions to client legal privilege under Part 10. First, practitioners must comply with a requirement to answer questions or produce information or documents if the client is the complainant or the client consents to the disclosure.⁷² Secondly, practitioners may disclose information to the LSC, a Council or the Tribunal in breach of client legal privilege if it is necessary to rebut an allegation in a complaint.⁷³

4.50 In IP 18 the Commission asked for submissions on the exceptions to client legal privilege in Part 10 (Issue 15).

Submissions

4.51 Submissions generally favoured extending the existing exceptions to client legal privilege, arguing that this would improve the ability of the Councils and the LSC to investigate complaints and obtain evidence against practitioners who have committed misconduct.⁷⁴ For example, it was submitted that under the current

69. Evidence Act 1995 (NSW) s 117-126.

70. Grant v Downs (1976) 135 CLR 674 at 685.

71. Baker v Campbell (1983) 153 CLR 52 at 85.

72. Legal Profession Act 1987 (NSW) s 171S(1).

73. Legal Profession Act 1987 (NSW) s 171S(2).

74. N R Cowdery, Submission at 2; For Legally Abused Citizens Inc, Submission 2 at 5; Law Society of NSW, Submission at 11; NSW Bar Association, Submission at 34; OLSC, Submission at 26; NSW Legal Reform Group, Submission at 6; Victorian Legal Ombudsman, Submission at 31; but see R S Cuddy, Submission at 5 and P Breen, Submission at 4. See also NSWLRC IP 18 at para 4.49-4.51. The Bar Association’s support for extending the exception to client legal privilege was conditional: the Bar argued that privileged information should not be available in relation to consumer disputes.

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exception the Councils and the LSC are not able to investigate complaints where it is alleged that a lawyer and a client have been jointly involved in misconduct. In this situation, the client can obstruct an investigation by refusing to waive client legal privilege.⁷⁵

4.52 One submission argued that the exceptions to client legal privilege should not be expanded.⁷⁶ This submission relied on the undoubted law that evidence of communications made or documents prepared by a lawyer and client in furtherance of a fraud, offence or act which gives rise to a civil penalty is not protected by client legal privilege.⁷⁷ It was also argued that the powers of trust account inspectors are adequate to enable the Law Society to conduct investigations.⁷⁸ This submission argued that the privilege is an important right which should be preserved.

Other jurisdictions

4.53 Regulators in all Australian jurisdictions can require a lawyer who is the subject of a complaint to co-operate with an investigation.⁷⁹ In Tasmania, a lawyer cannot rely on legal professional privilege as a reason for failure to co-operate with an investigation into their conduct unless the written consent of the client is provided.⁸⁰ Victorian lawyers cannot rely on legal professional privilege as a reason for failure to co-operate with an investigation.⁸¹

75. OLSC, Submission at 26.

76. R S Cuddy, Submission at 5.

77. Evidence Act 1995 (NSW) s 125.

78. This Reports recommends that the investigative powers of the LSC, the Law Society and the Bar Association should be strengthened: see Recommendations 11-13 and para 4.62-4.76.

79. Legal Practitioners Act (NT) s 47; Legal Practitioners Act 1970 (ACT) s 54; Queensland Law Society Act 1952 (Qld) s 5G; Legal Practitioners Act 1981 (SA) s 76; Legal Profession Act 1993 (Tas) s 58; Legal Practice Act 1996 (Vic) s 149; Legal Practitioners Act 1893 (WA) s 31D. See also para 4.68.

80. Legal Profession Act 1993 (Tas) s 58.

81. Legal Practice Act 1996 (Vic) s 149.

Recommendation

4.54 The Commission considers that the public interest served by client legal privilege as explained by the majority of the High Court in Baker v Campbell⁸² and Carter v Northmore⁸³ is of fundamental importance in the administration of justice and does not accept that the exceptions to the privilege in Part 10 should be extended. If the privilege (rightly) will not be qualified even to prosecute for serious criminal offences, it is difficult to see how it is appropriate to remove it in disciplinary proceedings.

4.55 A number of practical problems, moreover, would arise if disclosure were permitted. It would be virtually impossible in any case for a lawyer to assure the client of confidentiality, since there would always be a risk that a complaint made by another person could require exposure of otherwise privileged communications. It is worth noting that in some areas of emotionally charged litigation, such as family law disputes, allegations of misconduct are often made by one party against the lawyers retained by the other party.

It would be completely inappropriate to enable this device to be used to obtain exposure of that party’s privileged communications.

4.56 A more appropriate way of addressing this issue would be to encourage waiver of client legal privilege by providing for restrictions on the use of information that is subject to client legal privilege and is disclosed in the course of an investigation under Part 10. This could be done by amending Part 10 to provide that the LSC and Councils can give undertakings to maintain the confidentiality of information subject to client legal privilege. Such information would be disclosed to investigators and the Tribunal, but not to the complainant. The Tribunal could also be empowered to make confidentiality orders in relation to information that is subject to client legal privilege. The powers of the Tribunal are discussed in Chapter 6, which includes a recommendation that the Tribunal should not be bound by the rules of evidence.⁸⁴

4.57 Section 171P of the LPA deals with the improper disclosure of

82. (1983) 153 CLR 52.

83. (1995) 183 CLR 121.

84. See para 6.36-6.50 and Recommendation 31.

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information obtained in the administration of Part 10. Improper disclosure is an offence punishable by a fine of $1,100 or up to six months’ imprisonment. Disclosure of information subject to client legal privilege in contravention of an undertaking or Tribunal order would constitute improper disclosure.

Recommendation 9

Part 10 of the Legal Profession Act 1987 (NSW) should be amended to permit the Legal Services Commissioner, the Law Society and the Bar Association to give undertakings to maintain the confidentiality of information subject to client legal privilege which has been waived and disclosed during the course of an investigation.

Recommendation 10

Part 10 of the Legal Profession Act 1987 (NSW) should be amended to permit the Tribunal to make confidentiality orders in relation to information subject to client legal privilege where the privilege has been waived.

4.58 The Commission is unaware of any case in which a practitioner has sought to use s 171S(2) of the LPA to disclose confidential communications of clients other than the complainant.

In its earlier Report, the Commission recommended that a practitioner who must disclose a communication otherwise subject to client legal privilege in his or her defence should be permitted to do so. It is clear from the discussion that the only confidential communications covered by this recommendation concerned those confidential to the complainant. The provision, however, on one reading, appears to remove the privilege of clients other than those making the complaint and, possibly, of practitioners other than the one under investigation where he or she needs to do so to rebut an allegation in the complaint. Such a destruction of client legal

privilege is a fundamental change to the common law as clearly and authoritatively declared in the High Court. It is most unlikely that it was intended by the drafter to have this effect. Certainly, this is not what the Commission recommended. In Baker v Campbell,⁸⁵ Chief Justice Gibbs (in a dissenting judgment) cited with apparent approval English authority for the proposition, which was acknowledged as novel, that legal professional privilege would give way to establish a defence in a criminal trial.⁸⁶ This view was decisively rejected by the High Court in Carter v Northmore⁸⁷ where it was held (by majority) that a person who has possession of documents subject to client legal privilege which is not waived cannot be compelled to produce them on subpoena issued on behalf of an accused person in criminal proceedings even though it may establish the innocence of the accused or materially assist the defence. In that case, Justice Brennan concluded that:

(as) the purpose of the privilege is to facilitate the application of the rule of law in the public interest, it is not possible to allow the interest of an individual accused to destroy the privilege which is conferred to advance that public interest.⁸⁸

4.59 It would be inappropriately anomalous if a person charged with a serious (or, indeed, any) criminal offence could not require a disclosure in breach of client legal privilege to defend the charge but a practitioner defending disciplinary proceedings could do so. Of course, the privilege of the complainant is in a completely different category. It is almost certainly waived under the common law, at all events, by making a complaint which cannot be fairly evaluated without disclosure of the privileged communication.⁸⁹ Section 171S(2) should be amended to make it clear that the only matter which may be disclosed despite the client legal privilege is matter otherwise subject to the privilege of the complainant.

85. (1983) 153 CLR 52.

86. (1983) 153 CLR 52 at 68.

87. Carter v Northmore (1995) 183 CLR 121.

88. Carter v Northmore (1995) 183 CLR 121 at 130.

89. Attorney General (NT) v Maurice (1986) 161 CLR 475.

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