Update, 21 August 2007: Latest case on the implied undertaking: Street v Hearne [2007] NSWCA 113.
When a person comes into possession of documents through legal compulsion, they are under an implied obligation not to use them for any purpose but the purpose for which the compulsion operates. Most lawyers know the rule insofar as it applies to discovered documents. But it applies to all manner of compulsion and to information as well as documents, including subpoenaed documents, and documents obtained by the Legal Services Commissioner under s. 4.4.11 (in relation to disciplinary complaints) (or, now, in relation to civil disputes, s. 4.3.5(3)) of the Legal Profession Act, 2004. It is best known as the rule in Home Office v Harman after the House of Lords decision in that case reported at [1983] 1 AC 280.
The latest decision in the saga of Australia’s best-known female criminal lawyer, ZGW v Legal Services Board [2007] VCAT 1406 (see for background my earlier posts here and here and here) is a ruling on an application by the Legal Services Board to be released from the obligation. It is another of Acting President Bowman’s long, honest, and thorough judgments. His Honour is a hard-working judge, and I like the way he sets out with fidelity the parties’ arguments, and then deals with them one by one. It is a diligent, and intellectually honest approach, and goes beyond what could be, and often is, gotten away with in some administrative tribunals. More generally, VCAT is to be commended for having the courage to publish each and every new written decision on the internet.
The case was argued by some heavy-hitters: Joe Santamaria QC for the Board and Gerry Nash QC for the solicitor. Mr Nash prevailed. The tussle was over a police file on the solicitor, and:
‘a type-written statement made by X, a person charged with a criminal offence, to the Victoria Police. Part of it deals with what could be described as a round-table conference involving various identities charged with criminal offences or on the periphery of same and their lawyers. This part of the document records or summarises conversations dealing with the approach to be adopted in relation to certain statements. What is recorded in the document could loosely be described as a discussion concerning tactics between lawyers and their clients. [The solicitor] was one of the lawyers present. She was not present as X’s solicitors, but as the solicitor for another identity. The other persons present have not made statements.’
The case presently before VCAT is a challenge by the solicitor to the Board’s non-renewal of her practising certificate for 2006/2007 on the basis that she is not a fit and proper person. The Board subpoenaed the police’s file on the solicitor. Material of interest to the Board obviously resulted. It wished to use the material for the purposes of considering whether to cancel the practising certificate, or not renew it in the 2007/2008 period (each of which presumably falls for it to consider because the non-renewal has been stayed pending the legal challenge). The purpose for which the police produced the documents under the compulsion of the subpoena was the present proceedings. Those proceedings are about the propriety of the decision not to renew the solicitor’s practising certificate. For the Board to use the documents for the purposes of deciding whether to cancel the practising certificate, or not to renew it for a different practising certificate year, would be a collateral purpose, and prima facie impermissible. ‘Exceptional circumstances’ would be required in order to justify release by the tribunal. The Board said [65] the exceptional circumstances were (i) that the police did not mind whether the documents were used for the collateral purposes, and (ii) that the Board has a statutory obligation to ensure that ‘only legal practitioners who are fit and proper to hold practising certificates continue to practise’. Of this second argument, Acting President Bowman said at [66]:
‘In the situation currently prevailing, I am not moved by the argument based upon the above circumstance. The very issue to be determined in the present case is, in essence, whether [the solicitor] is a fit and proper person to hold a practising certificate. In the exercise of its statutory obligations, the LSB has determined that she is not, and has refused to renew her practising certificate accordingly. The police file has been produced in relation to this, and presumably attempts will be made to rely upon the material contained within it. That documentary material, if admissible, may play a role in determining the very question of whether [the solicitor] is such a fit and proper person. The LSB is already exercising its statutory authority in relation to this central issue. Why is it part of or important to the discharge of its continuing statutory obligations to use the same material in relation to a decision in relation to what is essentially the same issue as is currently before the Tribunal and before the Tribunal has ruled upon the present case? Why should it be so when the admissibility of the police file or the use that can be made of it in the present case has not been determined? I would refer back to the observations of Lord Roskill. At this particular time, and in the present circumstances, I fail to see how the proposed use for a collateral purpose can be part of or important to the discharge of the LSB’s continuing statutory obligations. Such proposed use smacks of an attempt to in some way short-circuit the present proceedings or to obtain what the LSB sees as the desired result by a different means.’
The solicitor objected to the release from the implied undertaking insofar as it related to the X document on the additional basis that it was subject to legal professional privilege. That privilege would be better understood if the uniform evidence legislation’s descriptor — client legal privilege — were adopted; the privilege is the client’s not the solicitor’s. Here, the solicitor was not X’s solicitor, but the solicitor to another person at a round table discussion between several clients and their respective solicitors. Whereas by making a statement to police in relation to what happened at the conference, X may have waived his entitlement to assert privilege (no consideration was apparently given to the possibility — I would say likelihood — that the privilege of the clients in the conference was a joint privilege which none of the joint privilege holders was entitled unilaterally to waive), Acting President Bowman said, the other clients’ privilege could not have been waived by him. The curious thing about this privilege stoush was that there was no evidence that any of the privilege holders were even aware that it was on, and accordingly no evidence that they desired to assert the privilege as against the Legal Services Board. Certainly, the person asserting the privilege was not one of the clients, but one of their lawyers. It was said, even by the solicitor’s own senior counsel, that there was some doubt that the solicitor had standing to assert even her client’s privilege:
‘Indeed, Mr Nash effectively stated that some doubt existed as to whether Garde-Wilson had standing to claim privilege on her own behalf. That is a fair concession to make, although, depending on circumstances, it might be arguable that she had sufficient standing to argue it on behalf of the person whom she represented at the round-table conference.’
It has always been my understanding that a solicitor has a duty to assert a client’s privilege even in the absence of instructions. I have never heard it suggested that when the tax man comes with a warrant to raid solicitors’ premises, the solicitor is not entitled, should their client be in one of those rare corners of the globe where mobile phones still do not work, to say ‘You can’t have these; my former client is entitled to assert privilege in them against you.’ It would be surprising if that obligation did not carry with it the standing to make it good, and I would be surprised if ‘might be arguable’ were an appropriate characterisation of the strength of the solicitor’s entitlement to raise her former client’s privilege against its provision to an arm of the government, albeit a somewhat independent one, the Legal Services Board.
(Presumably, X’s statement was not made to the police pursuant to some power of legal compulsion. If it had been, one might have expected objection to have been made on that basis at one remove, for example that the information should never have been provided by the police pursuant to the subpoena.)
