The long answer: information you give your solicitor, what we call client instructions, is likely to be categorised as either "confidential" or "client legal privilege".
Examples of confidential information include your address, your bank details or an illustration of your family tree. We must not share this information with anyone except colleagues at the same firm, or another professional (for example a barrister) and their staff – as long as it is for the purpose of delivering or administering legal services in relation to you.1 We are allowed to disclose confidential information if:
- You authorise us to;
- We are allowed to, or compelled to, by law;
- It is in a confidential setting to obtain advice in connection to our services and obligations to you;
- The sole purpose is to prevent a serious criminal offence from happening;
- It is to prevent imminent serious physical harm to you or another person; or
- It is to our insurer.2
Client Legal Privilege
Client legal privilege, also known as legal professional privilege, is a higher level, more secure protection of your information than that that is categorised as confidential. It is a common law right that you hold, and it is a privilege that belongs to YOU, not us – but its purpose is not to benefit YOU, but to ensure the administration of justice. You must feel that you can tell your lawyer everything, if you didn't, then the justice system would not be able to function.
Information or documentation can be classed as privileged if it is given to the lawyer for the purpose of receiving legal advice – this means it can't be accessed by the police, the prosecution or the court.
There are examples of when privilege can be waived, including if you consent, or if you or your solicitor has already previously disclosed a significant portion of the information such that the gist of it is already known.
There are also examples of how and when privilege has been claimed inappropriately.
It is yet another area lawyers must be extremely careful and act in accordance with their professional obligations – they must know how to identify and handle privileged information.
"I was the one that robbed the jewellery shop... but you have to get me off"
If you tell your lawyer you committed a crime, but you're not prepared to plead guilty, that lawyer cannot represent you as he/she would be misleading the court which is in breach of its paramount duty to the court.
I am often asked "what if your client is guilty, how do you live with yourself representing them?" If you tell me you are not guilty, it is not up to me to agree or disagree, or to form an opinion – it is up to a Magistrate, Judge or jury. I will advise you and represent you based on your instructions. If they are your instructions, that is the case I run for you. If you tell me you are guilty, then I run the plea on your behalf and work to get the best possible outcome. If you tell me you are guilty, but want to plead not guilty, I tell you to get a new lawyer.
The Lake Pleasant Bodies Case
There is a famous case from New York State in 1973, known as "the Lake Pleasant bodies case", that goes to show how tight the privilege lid is screwed on.
Two lawyers named Belge and Armani were representing a man in a murder case. Whilst representing him for the murder of A, the client told his lawyers that he also murdered two other people, B and C, and told them where the bodies were. The lawyers never told a single soul, they never made a report to the police, about B and C whilst representing their client in relation to A.
Down the track, the client was giving evidence and confessed to the murders of B and C, and also mentioned that he'd told his lawyers about these other murders. This caused an uproar and outrage – can you imagine the frustration of the police and public!? The lawyers' lives changed for the worse – relationships were damaged, their business collapsed and they also received death threats. They were investigated by the New York State Bar Association – but guess what? They weren't found to have breached any professional duty nor committed any sort of crime – the confession of their client was protected by privilege.
The case they were representing their client in was about the murder of A; the case wasn't about B and C and so they had to keep the information privileged. That was their client's right.
How does this make you feel? Students studying this case often disapprove of the lawyers' conduct. You might disagree wholeheartedly about the lawyers' handling of the information – but what if you needed a lawyer? Would you want to feel secure telling them EVERYTHING?
It is clear here that a client being able to disclose anything and everything to their lawyer is deemed more important than piercing that privilege to assist in criminal investigations.
We can't mislead a court, but we can keep your information sealed tight.
1 Rule 9.1 – Legal Profession Uniform
Law Australian Solicitors' Conduct Rules 2015
2 Rule 9.2 – Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.