Legal Professional Privilege: Where To Draw The Line

Table of Contents

Share at:

It sounds like a plot from a 1990s Scorsese movie, but it happened in real life. Unfortunately, the consequences are very real too. On monday, the media announced that a barrister acting in the cases of 386 Melbourne gangland criminals was in fact, a police informant. This means that the information she received while defending these criminals was used against them by the prosecution. The lawyer informant now faces serious threats to her safety.

This may sound highly unethical, and it is. But beyond this, it’s a breach of one of the most important legal principles – the right of a defendant to disclose information to their lawyer in confidence. So what is legal professional privilege and a lawyer’s duty of confidence?

Here, we’ll explain what it means and how this case could see many incarcerated figures of Melbourne’s underworld released.

Legal professional privilege

As a barrister, the current legal ethics legislation is the Legal Profession Uniform Conduct (barristers) Rules 2015 (Vic) . The relevant sections include rule 114 which states that a barrister shouldn’t reveal confidential information. This leads to the tension between a duty to the client (35) and the duty to the court (23). Even in the case that the client tells the barrister that they are guilty they are still not to disclose this to the court (80). Furthermore if a client says they will disobey the court they still aren’t to disclose this. The only reason to disclose would be if they reasonably believe someones safety is at risk which varies client to client (81&82). This leaves the lawyer informant most likely as one who has breached legal privilege.

Evidence Act & the Lawyer informant

The Evidence Act 2008 (Vic) also provides for legal privilege. Hence, the core concept is that the lawyer is not to reveal confidential communications. When this privilege is lost it is due to fraud and abuses of power s 125. Even, for this to take place, the person relying upon this must prove that the legal privilege doesn’t apply and evidence must be provided. Ultimately, the crux is that a client should be candid and be able to trust their criminal lawyer.

Overturned Convictions

For three years a suppression order existed. The purpose of such an order is to prevent someone revealing the identity of the informant. However, the High Court found the breach of privilege to detract from the integrity of the legal system. As a result, the court authorised the publishing of the details. The issue of previous convictions relates to how the prosecution obtained the evidence. The Evidence Act 2008 (Vic) s 138 is about illegally obtained evidence. In this section some important considerations as to whether to use the evidence include its usefulness (probative value). However, there are other factors like if the breach was deliberate and the seriousness of the breach. The courts have held in the past that this section is a balancing act between the system sentencing the offender. The other being if the integrity of the court and legal system is reduced.

Have more questions? Contact a LawPath consultant on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest legal marketplace.

Share at:

Simplify creating legal documents today

Browse through Lawpath's AI tools which can be used to draft, review and refine legal documents today!

Related Articles

Why Was My Trademark Rejected? Common Reasons in Australia

If your trademark application was rejected, you have several options on how to respond. Our guide explains adverse examination reports and your response pathways.

Should I Use A Deed Of Release When Employees Leave The Job?

A deed or release can be a crucial document for both employers and employees. Here is what it covers, what to look for, and how to ensure your legal protections.

What is Genuine Redundancy? (2026 Update)

No longer require an employee to do their job? Learn about genuine redundancy, your employees’ rights, and your business's obligations in this situation.

Is a DIY Will in Australia Enough? What a Basic Will Template Does and Doesn’t Cover

DIY Will Australia: Is a template enough? Learn what a basic Will covers, what it doesn’t, and when you may need extra estate planning.

What’s The Difference Between A Corporation And A Company?

Understand the definitions of corporation vs company under Australian law and choose the right business structure for you.

How to Get Out of a Gym Membership

Learn how to cancel a gym membership in Australia and the legal rights you have under Australian Consumer Law.