The preconditions to a confidentiality obligation by a barrister

In Legal Practitioners Complaints Committee v Mark T QC [2009] WASAT 42 the prosecutor, the Committee, framed its case on the existence of a retainer, or on a prospective retainer.  The Tribunal did not allow it to morph into an allegation of breach of an equitable duty of confidence.  So the question arose as to what, exactly, a ‘retainer’ is, in the context of a barrister and a client, especially as in this case where there was no solicitor briefing the barrister, and there was no expectation of a fee. The Tribunal held that it was not a contractual relationship which was the touchstone for the creation of confidentiality obligations, but rather

‘the inquiry is whether the relationship of barrister and client is established in the circumstances. That may depend on the purpose of the inquiry. In our view, in the present context, so much might readily be accepted where a barrister acting in the course of the barrister’s professional duties meets with and provides or offers to provide legal advice or assistance to a lay person (or other lawyer on behalf of the lay client) who seeks that advice or assistance. In those circumstances, and whether or not the barrister offers ongoing services, the barrister is retained by the client.’

The whole of the exposition of the law in this regard was:

‘The relationship of barrister and client – the legal principles

150 The issues arising from the submissions regarding the relationship of a barrister and client include the nature of a ‘retainer’, whether contractual or otherwise, and what is embraced by the notions of ‘client’ and ‘prospective client’.

151 As a matter of ordinary usage, ‘retain’ means to engage the services of a barrister, often by payment of a preliminary fee.

152 In the past, the practice in Australia (and in England) was that barristers could only provide or undertake their services on behalf of a lay client on the instructions of a solicitor. The solicitor had a general authority to instruct and pay the barrister. The barrister looked to the solicitor rather than the lay client for the payment of fees. There was no contract either between barrister and lay client (by reason of the lack of direct relationship) or between barrister and solicitor (by reason of the nature of their relationship). It followed that the retainer of a barrister did not involve a contract. This position resulted as a matter of professional ethics rather than from principles of law.

153 However, the modern position in Australia (and in England), is that subject to any particular requirements of the relevant professional conduct rules, a lay client may have direct access to a barrister and there appears to be no reason, in principle, why a barrister might not contract with either or both the lay client and the solicitor. This is now the case in England, where the Bar Council provides standard form contractual terms, and has also been recognised in Australia, for example in Dimos v Hanos and Egan [2001] VSC 173 where the history, principles and statutory regime are discussed.

154 In the case of solicitors, where it is often said that a contract with the client must be shown for the relationship to exist, the better view would seem to us to be that the relationship is ‘consensual’ but not necessarily ‘contractual’: Macpherson and Kelly v Kevin J Prunty and Associates [1983] 1 VR 573 at 575. That would seem an equally apt description for the modern relationship of barrister and client.

155 In some cases, there may not be a contract between barrister and lay client for a number of reasons. These reasons include the intercession of a solicitor, who is in a position to make the necessary arrangements with the client and the barrister respectively, or because (as here) the barrister is providing services on a pro bono basis so that there is no consideration moving from the promisee client. In those circumstances, the inquiry whether there is a contract implied on the facts (in respect of which the LPCC has provided the relevant authorities) would seem unnecessary. Rather, the inquiry is whether the relationship of barrister and client is established in the circumstances. That may depend on the purpose of the inquiry. In our view, in the present context, so much might readily be accepted where a barrister acting in the course of the barrister’s professional duties meets with and provides or offers to provide legal advice or assistance to a lay person (or other lawyer on behalf of the lay client) who seeks that advice or assistance. In those circumstances, and whether or not the barrister offers ongoing services, the barrister is retained by the client.

156 In these proceedings, the practitioner maintained in his evidence and submissions that he was retained by and acted for the government. That claim was made notwithstanding the practitioner’s own evidence as to the degree of informality concerning this engagement. It is not suggested, nor could it have been, that this was a contractual relationship.

157 So far as concerns a ‘prospective client’, both the LPCC and the practitioner refer to the case of a person on whose behalf a lawyer receives and reads a brief with a view to the lawyer’s engagement but where, for whatever reason, this does not result. The principle must extend to a person who meets with a lawyer and discusses matters in confidence with a view to retaining the lawyer. Where the relationship is established, a duty on the lawyer will attach to those conversations (of both the person and the lawyer) which, within ‘a very wide and generous ambit of interpretation’ are referable to that relationship: Minter v Priest [1930] AC 558 where the court held that communications from the prospective client to a solicitor at their meeting were privileged in circumstances where the solicitor ultimately declined to act. That expression of the extent of the duty must also apply, in our view, where the relationship is with a client.

158 That is not to say that for all purposes a person to whom a duty of confidence is owed by a lawyer is, without more, to be considered as the lawyer’s ‘client’: Apple v Wily [2002] NSWSC 855 at [6-13], a case cited by the LPCC. This decision was followed in Hawksford v Hawksford [2008] NSWSC 31 at [17] – [19] where it was also held that there may be a relationship of lawyer and client, absent a contractual retainer, for the purposes of the client privilege rule.’