Opinion Piece: Breach of duties from Lawyer X, police an attack on democracy and justice
20 December 2018
Opinion Piece by Law Council of Australia President, Arthur Moses SC – published in The Australian, Friday, 22 February 2019.
The Lawyer X scandal has shocked the legal community across Australia.
Unfortunately, within all professions there is a small minority that behaves in a manner that intrinsically contradicts what is right and just.
However, unlike other professions, lawyers are vested with a unique, paramount duty to the court and to promote the rule of law, which goes to the very heart of our democracy. Lawyers also have a duty not to engage in conduct that diminishes public confidence in the administration of justice.
In a rare unanimous judgment, seven High Court judges held that Lawyer X’s actions in informing against clients constituted “fundamental and appalling breaches” of her duties to the court and to her clients.
The High Court also condemned the actions of Victoria Police, which it found “were guilty of reprehensible conduct” in encouraging Lawyer X to disclose privileged information that should never have been sought, received or used.
The police officers involved brought disrepute upon themselves — and the broader criminal justice system — by “sanctioning atrocious breaches” of their sworn duty to act faithfully according to law.
Legal action has already begun and it is anticipated more cases will follow. Appeal proceedings are under way by three persons whose convictions are alleged to have been affected by the conduct of Lawyer X.
The Victorian Royal Commissioner into Management of Police Informants said the public “may query the outrage expressed by the courts, professional associations and legal academics” at the conduct of Lawyer X and police, given its effect of convictions of serious offenders.
But the rule of the law, said Commissioner Margaret McMurdo, “requires that everyone (the rich, the disempowered, the poor, the mighty, individuals, governments and their agencies, police officers and corporations), everyone is answerable to the same laws”.
Now, across the country, all state and territory jurisdictions are under a cloud and the question is being asked — are there more people like Lawyer X?
Prompted by the legal profession, NSW, South Australian and Tasmanian police have audited informants dating back more than 15 years. The West Australian Attorney-General has sought assurances from the commissioner, and no doubt others will follow.
We must not forget client legal privilege exists for the benefit of clients, not lawyers. It protects confidential communications between a lawyer and client made for the dominant purpose of the lawyer providing legal advice or professional legal services or for use in current or anticipated litigation.
The proper administration of justice means clients must be able to communicate freely with their lawyer. Client professional privilege is a fundamental protection and pillar of the legal system and is critical in ensuring compliance with the law and maintenance of the rule of law. When it is breached, it jeopardises convictions and undermines confidence in the courts, law enforcement, criminal justice and the legal profession.
It must be respected.
Although it pains me to say, it appears police need to be reminded they should not interfere with legal professional privilege, just as lawyers must be reminded they should not breach privilege.
At its simplest, police shouldn’t ask and lawyers shouldn’t tell.
On a practical level, anti-corruption bodies overseeing law enforcement agencies should, if they do not already, conduct annual audits of the human sources used by law enforcement agencies.
Threats to legal privilege have a chilling effect on the lawyer/client relationship and, in turn, the administration of justice. Clients should know their legal adviser will not disclose information they provide. This confidence is necessary for them to develop a full understanding of their rights and responsibilities under Australia’s complex, ever-changing system of laws.
A lawyer can only disclose privileged communications if clearly instructed to do so by their client or in very narrow exceptional circumstances, such as when someone is in danger, or unless a statutory exclusion or improper or illegal conduct exception applies.
I am confident Lawyer X is a rarity. But the importance of client legal privilege is a national issue and as the representative body for Australian lawyers, the Law Council will continue to work with our state and territory colleagues to carefully consider and respond to issues and recommendations that develop during the royal commission.
We must calmly and methodically get to the bottom of what has happened to ensure this does not happen again. The end never justifies the means.