Professional confidentiality and the ‘iniquity exception’

Update, 13 January 2010: See now British American Tobacco Australia Limited v Gordon (No 3) [2009] VSC 619.

In Legal Practitioners Complaints Committee v Mark T QC [2009] WASAT 42, the Perth QC who announced to the Australian media that Schapelle Corby’s Balinese lawyers were trying to get money to bribe the judges sought to excuse his breach of confidence by reference to the proposition that there is no confidentiality in an iniquity. The Tribunal rejected that argument, saying that if the rule had operation in this case, it could have justified only disclosure of the contemplation of a bribe to ‘the appropriate authority’ which certainly was not The West Australian.  The Tribunal’s reasoning is reproduced below.  Before that is its explanation of the source and obligations of professional confidentiality, where it reiterated two points which in my experience cannot be reiterated too often:

  • First, the Tribunal said it would be a mistake to try to make the obligations of professional condidentiality fit into the rules which govern trade secrets, i.e. the principles of equitable breach of confidence.  Equally, something might be confidential even if not privileged, for example because of the Cox v Railton exception to privilege; in other words, it does not follow from the lawyer’s inability to resist a proper compulsion to produce information gained as a result of a lawyer-client relationship that the lawyer may volunteer that same information.
  • Secondly, it said that the confidentiality obligation is not only to keep secret that which is secret, but also not to make anything any less secret which has already begun to lose its secrecy.  Here, the media was already on to the possibility of a bribe being considered.  But the QC’s confirmation of it gave that fact an authenticity and newsworthiness which it did not previously have.

Confidentiality – the competing contentions

359 The LPCC submits that insofar as Ms Corby was the client of the practitioner he owed a professional duty of confidence. This duty is reflected in r 6.3 of the Law Society’s Professional Conduct Rules 1983 (WA) which, at the time of the alleged conduct, provides as follows:

A practitioner shall not without the consent of his client directly or indirectly reveal that client’s confidence or use it in any way detrimental to the interests of that client or lend or reveal the contents of the papers in any brief or instructions to any person except to the extent:

  1. required by law, rule of court or court order provided that where there are reasonable grounds for questioning the validity of the law, rule or order he shall first take all reasonable steps to test the validity of the same; or
  2. necessary for replying to or defending any charge or complaint of criminal or unprofessional conduct or professional misconduct brought against him or his partners, associates or employees or to respond to a requirement under paragraphs (e) and (j) or Rule 1.4 [concerning a response to a complaint or inquiry].

360 In our view, the reference to ‘confidence’ first appearing means or includes ‘confidential communication’, that being part of the definition of the word in The Macquarie Dictionary (4th Ed, 2005).

361 The LPCC’s statement includes the propositions, without reference to authority, adopted in its closing submissions, that in the circumstances the following information was confidential:

  1. information in relation to the matter that the practitioner received in connection with the professional relationship. It does not matter that some of the information might be information that is by some means ‘in the public domain’. It is not for the practitioner to make disclosures that confirm or otherwise clothe with legitimacy material that is publicised by others. The fact that the client or the client’s agents or potential witnesses have informed the practitioner of a fact is itself confidential; and
  2. the views that the practitioner formed in relation to the matter as the issues were considered. If a legal practitioner forms views in relation to a client’s matter, those views are confidential to the client. It is not open to the practitioner, absent consent, to disclose the views the practitioner has formed.

362 The practitioner’s closing submissions accept that a barrister owes a duty of confidence to the client, but contend that the relevant ‘confidence’ or ‘confidential information’ must have the necessary ‘quality of confidence’. This excludes that which is public property or in the public domain. It is submitted that in order for the rule to apply:

  1. the information must be confidential in quality;
  2. the information must be imparted so as to import an obligation of confidence; and
  3. there must be an unauthorised use of that information to the detriment of the party communicating it.

363 Reference is made to statements to this effect in cases dealing with the equitable doctrine of confidence.

364 The practitioner also contends, at least in his statement, that none of the information of which complaint is made was given to him by or on behalf of Ms Corby so as to come within the rule.

Professional duty of confidentiality

365 We do not think the professional duty of confidence is conditioned in the manner which the practitioner contends. It may be that the lawyer’s professional duty of confidence overlaps with or has features in common with the equitable obligation of confidence arising in certain relationships and circumstances. It may also derive its character and support from the doctrine of legal professional privilege. It may also be that in the circumstances the lawyer has contractual and equitable and fiduciary obligations of confidence which must also be met. But in relation to the professional obligations of confidence, those contractual, equitable and fiduciary obligations and their respective remedies serve different purposes and are informed by different considerations. As regards the equitable duty for instance, protection of the interest by an action for breach of confidence founded upon an obligation of conscience seems of limited relevance in the present context. The scope of legal professional privilege is in some respects more restrictive than the professional obligation of confidence and rests upon a different principle (public interest). We do not think there is any warrant for reading down the independent professional obligation of confidentiality reflected in the conduct rule by reference to those other doctrines.

366 Once the relationship of lawyer and client is established, then we think the lawyer’s obligation of confidence arises and operates within strict limits. As a general rule, information about a client’s matter communicated to a legal practitioner in a professional capacity, will be presumed to be confidential. The practitioner will be required to keep communications secret except to the extent that, expressly or impliedly, the practitioner is authorised by the client to disclose them, at which point they will or may cease to be confidential, or the exceptions under the rule apply.

367 This is the position reflected by r 6.3 of the Professional Conduct Rules 1983 (WA). There is a prohibition against disclosure of confidential information and, separately, against use detrimental to the interests of the client.

368 In general terms we accept that the duty of confidence extends in the manner which the LPCC submits.

369 First, we think the duty extends to the information about Ms Corby’s case that the practitioner learned in his professional relationship with Ms Corby. This would include the information which he would not have had but for this relationship. Clearly, it would cover information he learned directly from her on 6 June 2005 as well as information he subsequently learned from the Bali legal team.

370 Second (further to the LPCC’s submissions), we think that once the relationship of lawyer and client is established the duty extends to information of a confidential nature acquired by the practitioner prior to that. That would include for instance, information which the practitioner had previously acquired from the Bali legal team, leaving aside a separate duty arising and owed at the time the information was received.

371 Third, we accept that the prohibition on disclosing Ms Corby’s ‘confidential’ information would generally extend to matters in the public domain, depending perhaps on the extent of the publicity and the authority of the source. In its submissions concerning statements to the media, the LPCC contends that it does not mitigate a communication to the media by a legal practitioner that the information is already in the public arena or is believed to be so. Repetition or confirmation of information by a legal practitioner may give that information a credible status that it might not otherwise have: Camp v Legal Practitioners Complaints Committee (2007) WASC 309 at [70] which supports the proposition contended for. We think this is equally applicable to an alleged disclosure of confidential information.

372 Fourth, we think the obligation extends to opinions formed by the practitioner about his client’s affairs. The practitioner does not appear to challenge this proposition generally, or by reference to the grounds of the application limiting this extension to statements to the media. We do not think there is any basis to do so.

373 We do not think it necessary for the LPCC’s case that Ms Corby gave evidence that she regarded the relevant statements as confidential. So much will be presumed once the relationship of lawyer and client is established.

374 That leaves the question whether in the particular circumstances the disclosure might be said to constitute unprofessional conduct.

No confidence in iniquity

375 As concerns the eighth disclosure the subject of the application, the practitioner submits that the duty of confidence could not attach to the disclosure of Mr Rasiah’s attempt to procure money from the Australian government to bribe the Balinese judiciary.

376 It is not possible to do justice to this argument without understanding the facts. Mr Rasiah, although not a lawyer, was part of the Bali legal team. According to the practitioner’s witness statement and evidence, over the weekend of 3 – 6 June 2005, Mr Rasiah on two separate occasions made the suggestion that the government should provide the funds which he said were necessary to bribe the appeal judges. This suggestion was first made at their dinner meeting on the Friday night (3 June 2005) and was repeated during a car trip to Mr Rasiah’s house on the Sunday night (5 June 2005). On both occasions the practitioner responded in effect that the government would never consider such a suggestion. The practitioner informed Senator Ellison of the suggestion made on the Friday night, on the following day. The practitioner believed from his discussion with Ms Corby on 6 June 2005, although it was not said that the suggestion was discussed, that she knew nothing about it. The practitioner also believed the suggestion was contained in Mr Rasiah’s draft letter seeking $500,000 for ‘lobbying’. The practitioner conveyed the substance of the draft letter to the Minister’s office and it was agreed that the practitioner should not deliver the letter but seek details of the item from Mr Rasiah. This the practitioner did. When the final letter was delivered, the item was omitted. This letter was passed to the government. The practitioner did not expressly disclose the suggestion to the media until about two weeks later. When then questioned by a journalist (in the circumstances described below) the practitioner gave a detailed account of Mr Rasiah’s suggestion at their dinner and in the draft letter. Mr Rasiah denied to the journalist that he had made the suggestion.

377 In summary, a non-legal member of the Bali legal team but acting on its behalf and in the presence of its lawyer, Ms Lubis (at least on the Friday night), on two occasions made an informal suggestion to the practitioner that the government provide money for bribing the appeal judges. It may readily be inferred that the suggestions were made in confidence and to the practitioner (and Mr Laskaris) in his professional capacity as a lawyer assisting with the appeal. It may be assumed that the practitioner was authorised to convey the suggestion to the government. It may also be accepted for present purposes that, as the practitioner believed, Ms Corby did not know about the suggestion. On our findings, on 6 June 2005, the practitioner was engaged by Ms Corby to provide advice including in relation to the appeal. Information which the practitioner then held, including in relation to the appeal, became the subject of his duty of confidence. In the normal course that would include Mr Rasiah’s suggestion. In considering the ‘inequity rule’, we treat the rule as potentially available as a defence notwithstanding that the relevant communication was made before, but published after, the retainer was established.

378 In the practitioner’s closing submissions, the proposition that no confidence could attach to Mr Rasiah’s suggestion such that the practitioner was entitled to publish this to the media, is based on the ‘rule’ that there is no confidence as to the disclosure of an iniquity. This proposition was originally formulated in Gartside v Outram (1856) 26 LJ (NS) 113 at 114:

The true doctrine is that there is no confidence as to the disclosure of an iniquity. You cannot make me the confident of a crime or fraud, and be entitled to close up my lips upon any secret which you have the audacity to disclose to me relating to any fraudulent intention on your part.

379 This passage has been developed in England as an independent ‘public interest’ defence to justify publication of an otherwise confidential publication. Moreover, the English doctrine has in certain circumstances allowed for the possibility of disclosure to the media. In Initial Services Ltd v Putterill [1968] 1 QB 396 it was held at 405-6:

The disclosure must, I should think, be to one who has a proper interest to receive the information. Thus, it will be proper to disclose a crime to the police; or a breach of the Restrictive Trade Practices Act to the Registrar. There may be cases where the misdeed is of such a character that public interest may demand, or at least excuse, publication on a broader field, even to the press.

380 To similar effect is Attorney-General v Guardian Newspapers (No. 2) [1988] UKHL 6; [1990] 1 AC 109 at 269.

381 However, the doctrine has received limited theoretical recognition in Australia. Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (VIC) (1987) 14 FCR 434 at 456 says:

Finally, if there be some other principle of general application inspired by Gartside v. Outram, it is in my view of narrower application than the “public interest defence” expressed in the English cases. … That principle, in my view, is no wider than one that information will lack the necessary attribute of confidence if the subject matter is the existence or real likelihood of the existence of an iniquity in the sense of a crime, civil wrong or serious misdeed of public importance, and the confidence is relied upon to prevent disclosure to a third party with a real and direct interest in redressing such crime, wrong or misdeed.

382 There is a similarly restrictive view of the principle in Castrol Australia Pty Ltd v Em Tech Association Pty Ltd (1980) 51 FLR 184, a case cited by Mr McCusker.

383 The practitioner also cites R v Cox and Railton (1884) 14 QBD 153 in support of the submission. This concerned a claim for legal professional privilege where a solicitor was called on to answer a question concerning his client’s affairs. It was held the privilege did not attach in the case of a communication, criminal in itself or intended to further any criminal purpose. This was because that communication could not be regarded as within the rationale for the privilege, because it is not in furtherance of the interests of justice. Further, it was not within the express terms of the privilege rule, because it is not within the ordinary scope of the lawyer’s professional employment. There have been a number of Australian authorities which have followed this decision – see in particular Attorney General for the Northern Territory v Kearney [1985] HCA 60; [1985] 59 ALJR 749 and generally Cross on Evidence 7th Ed para [25285]-[25290]. The principle extends to cases where the iniquity was that of a third party rather than the client, but the communication is held by the lawyer on behalf of the client.

384 It may be that appropriate disclosure of a serious proposal to bribe the judiciary is to be regarded as required by law for the purposes of r 6.3. In any event we would accept that appropriate disclosure of such a proposal would likely avoid any finding of unprofessional conduct. However, in our opinion, disclosure by a lawyer of such confidential information could only be justified if made to the appropriate authority or otherwise in accordance with the exceptions to r 6.3. It is difficult to see how it could ever justify publication to the press. The exceptions to the rule indicate how confined are the circumstances where disclosure is permitted and the appropriate authorities to whom disclosure may be made.

385 The parties have not referred to any directly relevant Australian cases or texts dealing with public disclosure by a lawyer. The matter is discussed by Boon and Levin The Ethics and Conduct of Lawyers in England and Wales (2nd Ed 2008) at p 231-233 including:

Normally such confidences can be revealed only to those having a legitimate interest in receiving the information, which would include the police or other relevant enforcement authority and also the intended victim. Gossiping in the pub about it or informing a tabloid newspaper would not be disclosure in the public interest.

386 We have been troubled by the consideration that the practitioner’s argument might be put that Mr Rasiah’s suggestion to the practitioner (accepting for these purposes the practitioner’s account of it) was of such nature as ‘not to fall within the ordinary scope of the practitioner’s professional employment’ within the rule in R v Cox and Railton, such that no duty attached to the communication, then or later. Whatever justification there is for treating a disclosure of a communication made to further an illegal purpose as outside the specific terms in which the legal professional privilege rule has been expressed (rather than merely an exception to it), we do not think the principle for which the case stands can operate to excuse a lawyer publishing confidential information learned about his client’s matter to the media. It does not seem to us that preventing disclosure in this manner could be described as inimical to the interests of justice or of the public interest. The concern in the present context is not with a client’s privilege but with a lawyer’s obligation. Put another way, we think the correct approach to this issue is to regard the professional obligation of confidence as independent of other doctrines including that of legal professional privilege. We are of the view that the communication made by Ms Corby’s Bali lawyers to the practitioner in his capacity as a barrister assisting in the appeal was confidential and that it therefore attracted the duty of confidence. From this time (or, under the application, 6 June 2005), the practitioner was required to keep that information confidential, except to the extent he was authorised to disclose it to the government or as provided by the rule.

387 The practitioner’s closing submissions cite a number of additional cases in support of the submission. As to these, the High Court in A v Haydn [1984] HCA 67; (1984) 156 CLR 532 held the court would not enforce a contractual obligation of confidence where to do so would obstruct the administration of the criminal law because such was contrary to public policy. The matter in issue in Allied Mills Industries Pty Ltd v Trade Practices Commission (No 1) [1981] FCA 11; (1981) 55 FLR 125 and Castrol Australia Pty Ltd v Em Tech Association Pty Ltd (1980) 51 FLR 184 was whether a possible breach of the Trade Practices Act 1974 (Cth) overrode an obligation of confidence. For reasons earlier expressed concerning the independent professional obligation of confidence, we do not think these assist in the present inquiry.

388 For these reasons we do not think the iniquity ‘rule’ can be invoked to defend the practitioner’s disclosure to the media of Mr Rasiah’s suggestion of money to be provided by the government for use in bribing the appeal judges.

Statements to the media

389 Rule 4.5 of the Professional Conduct Rules (in operation at the relevant time) provides in effect that a practitioner may make statements to the media provided that where the subject matter concerns a matter in which the practitioner is or has been professionally engaged:

    1. ….
    2. the practitioner shall not participate unless the practitioner has the informed consent of the practitioner’s client to do so and it is not contrary to the interests of the practitioner’s client for the practitioner to do so.

390 It follows that to the extent we find that, in breach of the confidence rule, the practitioner made the statements complained of to the media without Ms Corby’s consent, there will necessarily be a breach of this second rule. There will also be a breach of this rule in those circumstances where the relevant communication was not confidential. Whether any such breach constitutes unprofessional conduct remains to be decided.

391 Mr McCusker points out in his closing submissions that the rule does not by its terms apply to the case of a prospective client, although he accepts that in certain circumstances a duty of confidence to a prospective client may still arise, having regard to the analogous case of legal professional privilege arising in those circumstances. On our findings it is not necessary to explore this issue because we have found that Ms Corby became an actual client on 6 June 2005.

392 As against this, the practitioner’s submissions and authorities in relation to ‘no confidence in iniquity’ is directed at the alleged breach of the duty of confidence rule rather than the breach of the statements to the media rule. That would allow for a breach of the media rule even concerning a statement containing a proposal to commit a crime.’

See also:

Print Friendly, PDF & Email

Leave a Reply

Your email address will not be published. Required fields are marked *