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Legal Professional Privilege: Where To Draw The Line

Legal Professional Privilege: Where To Draw The Line

How a prominent criminal barrister sparked a royal commission.

7th December 2018
Reading Time: 2 minutes

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.

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Justin Pasqualino

Justin is a legal intern at Lawpath as part of the content team. He is currently studying a Bachelor of Laws and a Bachelor of Economics at UTS.