LAWS108 Lecture Notes - Lecture 5: Esso Australia, Seven Group Holdings, Telstra
10 May 2018
School
Course
Professor
LAWS108 Lecture
Week 5 – Confidentiality & Privilege
Confidentiality
- Duty based on a combination of contract and equity
- Implied in the retainer
- A professional duty outlined in the rules of practice
- Encourages full and frank disclosure
- Public policy rationale to encourage faith in lawyers and legal system
Uniform Solicitors Rule 9. Confidentiality
- 9.1 A solicitor must not disclose any information which is confidential to a client and
auied the soliito duig the liets egageet to a person who is not
o 9.1.1 a solicitor who is a partner, principal, director, or employee of the
soliitos la patie; o
o 9.1.2 a barrister or an employee of, or person otherwise engaged by, the
soliitos la patie o a assoiated etit fo the purposes of
delivering or administering legal services in relation to the client, EXCEPT as
permitted in rule 9.2
Uniform Barristers Rules
- 114. A barrister must not disclose (except as compelled by law or use in any way
confidential information obtained by the barrister in the course of practice
concerning any person to whom the barrister owes some duty or obligation to keep
the information confidential unless or until:
o (a) the information is later obtained by the barrister from another person
who is not bound by the confidentiality owed by the barrister to the first
person and who does not give the information confidentially to the barrister;
or (b) the person has consented to the barrister disclosing or using the
information generally or on specific terms
- 115. A barrister must not disclose (except as compelled by law) or use confidential
information under rule 114(b) in any way other than as permitted by the specific
tes of the pesos oset
Uniform Solicitors Rule 9.2
- 9.2 A solicitor may disclose information which is confidential to a client if:
o 9.2.1 the client expressly or impliedly authorised disclosure
o 9.2.2 the solicitor is permitted or is compelled by law to disclose
o 9.2.3 the solicitor discloses the information in a confidential setting, for the
sole pupose of otaiig adie i oetio ith the soliitos legal o
ethical obligations
o 9.2.4 the solicitor discloses the information for the sole purpose of advoiding
the probable commission of a serious criminal offence
o 9.2.5 the solicitor discloses the information for the purpose of preventing
imminent serious physical harm to the client or to another person
o 9.2.6 the information is disclosed to the insurer of the solicitor, law practice
or associated entity
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Document Summary
Duty based on a combination of contract and equity. A professional duty outlined in the rules of practice. Public policy rationale to encourage faith in lawyers and legal system. A barrister must not disclose (except as compelled by law) or use confidential information under rule 114(b) in any way other than as permitted by the specific te(cid:396)(cid:373)s of the pe(cid:396)so(cid:374)(cid:859)s (cid:272)o(cid:374)se(cid:374)t. Keep up to date with cyber security requirements. Baker v campbell (1983) 153 clr 52 (cid:858)the p(cid:396)i(cid:448)ilege is (cid:272)o(cid:373)(cid:373)o(cid:374)l(cid:455) des(cid:272)(cid:396)i(cid:271)ed as legal p(cid:396)ofessional privilege, which is unfortunate, because it suggests that the privilege is that of the members of the legal p(cid:396)ofessio(cid:374), (cid:449)hi(cid:272)h it is (cid:374)ot. Waterford v commonwealth (1987) 163 clr 54. Seven network limited v news limited [2005] fca 142 at [4] Telstra corporation ltd v minister for communications, information technology and the arts (no2) [2007] fca 1445.
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