If you are a solicitor and someone other than your client or former client has lodged a disciplinary complaint against you in Victoria, you should not disclose the subject matter of any communications to which legal professional privilege attaches, or might arguably attach, unless you are instructed to do so by your client or former client. Nor should you give up any document which records such a communication, or disclose any communication which tends to reveal the content of a privileged communication.
That is so even if the Legal Services Commissioner purports to compel the information, for in the case of investigations of non-client complaints, the client’s or former client’s privilege trumps the Commissioner’s powers of compulsion. If you have already disclosed privileged communications, assuming that the Commissioner had the power to compel you to do so, you should be aware that the disclosed communications may well still be privileged notwithstanding the disclosure to the Commissioner, and so unable to be used against you in a disciplinary prosecution arising from the investigation, and you should probably advise your client or former client.
Until recently, the Commissioner took the view that legal professional privilege was impliedly abrogated in the case of non-client complaints by necessary intendment of the Legal Profession Act, 2004. Not so. The reasons why follow below. These propositions are good law in VCAT’s Legal Practice List, at least.
Remember that it is still the common law which regulates legal professional privilege for the purposes of Legal Services Commissioner investigations and (except to the extent that it adopts the Evidence Act, 2008 in any particular proceding) in VCAT’s Legal Practice List.
When a client lodges a disciplinary complaint against a lawyer, she is deemed to have waived legal professional privilege to the extent necessary to allow the lawyer to respond to the complaint: s. 4.2.15, Legal Profession Act, 2004. When someone other than the client is the complainant, the client’s privilege is unaffected. Section 4.4.16, which refers to complaints by clients and non-clients alike, says only that a solicitor may not decline to answer questions posed by the Legal Services Commissioner in disciplinary investigations on the basis of any duty of confidence. The lawyer’s duty of confidence is different from the circumstances in which legal professional privilege arises. It is more extensive: everything that is privileged is confidential in the sense relevant for the law of privilege, but not everything that is confidential is privileged; not by any means.
Given the different and precise treatment afforded to all complaints (including non-client complaints) on the one hand, and only complaints by clients on the other, any argument that the Act necessarily evinces an intention on the part of parliament to abrogate legal professional privilege in the case of a non-client complaint has a difficult path.
Any privilege which exists is, axiomatically, the client’s rather than the solicitor’s: Spalding v Radio Canberra Pty Ltd (2009) 166 ACTR 14 at 17. But that does not mean that the solicitor may not assert the privilege in objecting to answering a question the answer to which would disclose privileged information. In fact, lawyers have an obligation, even after the termination of their retainer, to assert and protect the client’s privilege: Re Stanhill Consolidated Ltd  VR 749 at 752; c.f. Legal Services Board v Garde-Wilson  VCAT 1406 at .
Because only the client can waive privilege, any disclosure by a former solicitor in response to a purported compulsion by the Legal Services Commissioner without the consent of the client will not amount to waiver. That is because only the client can waive the privilege, and a former solicitor has no authority to waive the former client’s privilege on the former client’s behalf. It is not the case that once a privileged communication has been let out of the bag, it is too late to put it back in. No less an authority than the Privy Council said exactly this: ‘The cat is still a cat. It can be put back in the bag.’ B v Auckland District Law Society  UKPC 38 at . Even where evidence of privileged communications has been erroneously allowed into evidence, through no fault of the privilege holder, and then referred to in publicly available written reasons in a case of great public interest (Rolah McCabe’s negligence claim against manufacturers of her cigarettes), the Court of Appeal has made orders requiring the cat to be put back into the bag to the extent possible by ordering all copies of them to be returned to the privilege holder, and a retrial conducted without reference to the privileged communications. See British American Tobacco Australia Services Limited v Cowell  VSCA 197 at .
There is a case which suggests that an old Western Australian statute dissimilar to the Legal Profession Act, 2004 impliedly abrogated legal professional privilege by necessary intendment: Lashansky v Legal Practitioners Complaints Committee  WASCA 217, albeit not in the context of non-client complaints, or even disciplinary complaints. But the Privy Council’s decision in B’s Case, above, does not seem to have been brought to the Court’s attention. I blogged about the Privy Council decision here. When I last looked, that decision had never been cited in Australia, and it is, as far as I know, relatively unknown in Australia, avid readers of this blog apart.
Other cases in other contexts tend to support the sanctity of the privilege in controversies originated by non-clients:
(a) where a non-client seeks a wasted costs order against his adversary’s lawyer, he must make out his case without recourse to privileged communications to which the respondent lawyer was party: UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd  VSC 105, per Justice Habersberger at ff, and the authorities there referred to;
(b) beneficiaries have standing to lodge costs disputes (a form of civil complaint) in respect of executors’ lawyers, but in Sinni v Esposito  VCAT 135, VCAT’s Senior Member Howell held that the respondent solicitor was not entitled to give evidence of communications protected by client legal privilege in the absence of a waiver by the privilege holder.
When considering your obligation not to deliver up privileged documents, or otherwise divulge the contents of privileged communications, you should be aware of the scope of the advice limb of the privilege insofar as it relates to solicitor-client communications. All those communications which are part of “… the continuum of communication and meetings between the solicitor and client ..” (Balabel v Air India  1 Ch 317 at 330 per Taylor LJ) should properly be construed as “… professional discourse in a professional capacity, with reference to transactions covered by a retainer to provide legal advice [and therefore] will be regarded as prima facie for the purpose of giving or receiving advice” (Wenkart v Australian Federal Police unreported, Federal Court of Australia, 11 November 1996, per Branson J). See generally AWB Limited v Cole  FCA 571 at  – .
If you are unable to answer the complaint because of legal professional privilege, that might well be a reason for insisting on the summary dismissal of the dispute; depending on the circumstances, it might be intolerably oppressive to have to answer the allegations without recourse to your instructions. Of course sometimes that will not be the case. If a non-client accuses you of doing something that you did not do, the question of privilege may be irrelevant: you just deny the conduct. On the other hand, it may be that your instructions provide powerful circumstantial evidence that it is inherently unlikely that you would have done what you did: for example, you might have advised your client of the forensic undesirability of exactly the course of conduct it is alleged you engaged in, or something your client said might suggest that it was in fact the client who engaged in the relevant conduct rather than you. In the absence of that evidence, you might be faced with a clash of oral evidence between two individuals of approximately equal credibility, and the unavailability of the circumstantial evidence might make the investigation oppressive.