You have just received confidential information not meant for you – what do you do?
In our fastmoving electronic world, one computer keystroke can place confidential material into the hands of persons who are not meant to see it. The average citizen who receives the benefit of such an inadvertent disclosure of confidential material may well regard it as a gift from the gods. However, lawyers must adopt a more principled and fair approach if it happens to them in the course of legal practice. A failure to act in this way by a lawyer may have extremely serious consequences.
By Michael Dolan.
The Chief Justice of the High Court of Australia said in a speech in 2010:
“Lawyers may generally be said to be necessary to the working of the law in all its respects. But it is only the ethical lawyer who is essential to a system of justice.” (1)
What should the ethical lawyer do when confidential material is inadvertently disclosed by the other side? The basic answer is very simple – do not read or make use of the material and return it immediately to the sender. However, as always in ethical issues, the devil can be in the detail.
Some years ago the Ethics Committee of the Law Institute of Victoria published ethical guidelines on the topic and these were revised in 2015 (2):
The inadvertent or mistaken disclosure of confidential documents to a solicitor in the course of acting for a client gives rise to ethical duties on the part of the solicitor not to make use of the disclosure irrespective of client instructions. Acting in this way is an example of the professional ethical obligations of solicitors supporting the objectives of the proper administration of justice. These ethical obligations are partly set out in Victorian professional conduct rules2 and common law. In addition, Victorian solicitors have statutory overarching obligations to further the administration of justice in relation to civil proceedings.”
The Australian Solicitors’ Conduct Rules, 2015
A conduct rule attempting to deal with the issue found its way into the Legal Profession Uniform Law subordinate legislation which came into effect in Victoria and NSW on 1 July 2015:
“31. INADVERTENT DISCLOSURE
31.1 Unless otherwise permitted or compelled by law, a solicitor to whom material known or reasonably suspected to be confidential is disclosed by another solicitor, or by some other person and who is aware that the disclosure was inadvertent must not use the material and must:
31.1.1 return, destroy or delete the material (as appropriate) immediately upon becoming aware that disclosure was inadvertent; and
31.1.2 notify the other solicitor or the other person of the disclosure and the steps taken to prevent inappropriate misuse of the material.
31.2 A solicitor who reads part or all of the confidential material before becoming aware of its confidential status must:
31.2.1 notify the opposing solicitor or the other person immediately; and 31.2.2 not read any more of the material.
31.3 If a solicitor is instructed by a client to read confidential material received in error, the solicitor must refuse to do so.”
The High Court of Australia’s View
In late 2013 the Full Bench of the High Court delivered judgment in what has become a landmark case on the issue of a lawyer’s ethical duty when faced with inadvertent disclosure. (3) The case had involved a mistake made in the course of discovery in civil litigation whereby 13 confidential and legally privileged documents had been discovered to the other side. The High Court wrote:
- The question for a party to civil proceedings and its legal representatives is not just whether there is any real benefit to be gained from creating a dispute about whether a mistake in the course of discovery should be corrected. The CPA imposes a positive duty upon a party and its legal representatives to facilitate the CPA's purposes. Requiring a court to rule upon waiver and the grant of injunctive relief in circumstances such as the present could not be regarded as consistent with that duty.
- The position of solicitors who are in receipt of privileged documents has another dimension. Rule 31 of the Australian Solicitors' Conduct Rules, which were adopted by the Law Council of Australia, deals with the duty of a solicitor to return material, which is known or reasonably suspected to be confidential, where a solicitor is aware that its disclosure was inadvertent. It involves notifying the other solicitor of the disclosures and returning that material. The rule has been adopted in Queensland and South Australia and the Law Society of New South Wales presently proposes to adopt it.
- Such a rule should not be necessary. In the not too distant past it was understood that acting in this way obviates unnecessary and costly interlocutory applications. It permits a prompt return to the status quo and thereby avoids complications which may arise in the making of orders for the rectification of the mistake and the return of documents.
- This approach is important in a number of respects. One effect is that it promotes conduct which will assist the court to facilitate the overriding purposes of the CPA. It is an example of professional, ethical obligations of legal practitioners supporting the objectives of the proper administration of justice.”
Lawyers have been given clear ethical direction by the High Court as to what they should do in these circumstances.
What if your client gives you the other side’s confidential material?
This happened in Queensland in a family law case in 2017 in which a husband obtained his former wife’s confidential material and gave it to his solicitor to obtain a forensic advantage. (4) & (5) The solicitors retained the confidential material for some months. The Family Court of Australia ordered the husband’s solicitors to cease acting in the case and to destroy the confidential material immediately and not discuss it with anyone. The court also ordered the husband to pay the sum of $40,000 towards the wife’s legal costs. No doubt this was not the outcome the husband had expected when he gave the confidential material to his solicitors.
- Ethics and the Profession of the Lawyer, The Hon. Susan Kiefel AC, Queensland Law Society, The Vincents' 48th annual Symposium 2010, 26 March 2010
- Inadvertent Disclosure Ethics Guidelines, Law Institute of Victoria, 2015 –https://www.liv.asn.au/PDF/For-Lawyers/Ethics/FINAL-19-12-15---Inadvertent-Disclosure-Guideline-.aspx
- Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited  HCA 46 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2013/46.html
- Crittenden & Collins  FamCA 716 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2017/716.html
- Crittenden & Collins (No 2)  FamCA 1107 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2017/1107.html