Where professional privilege is blurred
There is a risk that information held by legal practices with interdisciplinary programs could be subpoenaed and used against their clients.
*This article was first published in the July 2019 edition of the Law Institute Journal
By Nareeda Lewers
Legal professional privilege is a protection that applies to communication between people and their lawyers. It means that whatever the lawyer and client discuss cannot be disclosed, even to a court (although limited exceptions apply). This protection safeguards some of the fundamental aspects of our justice system. For example, without the operation of legal professional privilege, it would be impossible for an accused person to both exercise their right to silence and to receive legal advice. But for legal professional privilege, lawyers would potentially be required to reveal what their clients tell them, thus completely undermining their clients’ cases and negating their clients’ ability to exercise the right to silence. Former Justice of the High Court Michael Kirby recognised legal professional privilege as an ‘important human right’.1 More recently, the High Court noted that “Lawyer X’s” breaches of her ethical duties towards her clients (including breach of legal professional privilege) and Victoria Police’s encouragement and sanctioning of them had the effect of corrupting each relevant prosecution and “debas[ing] fundamental premises of the criminal justice system”.2
It is undisputable that legal professional privilege is a fundamental duty lawyers must uphold; this is why the profession has been so shocked by the ‘Lawyer X’ matter. However, this duty can create significant challenges when lawyers work closely with people from other disciplines. This has increasingly emerged as an issue as interdisciplinary practice has become a more mainstream model for legal practices. For example, many community legal centres now employ social workers to work alongside lawyers. The interdisciplinary approach improves clients’ ability to engage with the legal process and means that clients’ needs can be addressed in a more holistic way. This model of service delivery achieves terrific outcomes for clients, particularly people who have complex lives and multiple support needs. However, legal services that offer interdisciplinary programs are currently being challenged by the fact that while legal professional privilege applies to lawyers’ communication with clients, it is often unclear whether and to what extent it also applies to other professionals’ – such as social workers’ – interactions with clients. If a social worker is employed by a legal practice and their interactions with clients, and the records of these interactions, namely case notes, are not covered by legal professional privilege then there is a risk that social workers’ notes could be subpoenaed and used in legal proceedings against the legal practice’s clients. There are cases where this has occurred.
Legal services are primarily managing doubts about whether a client’s interactions with a social worker will be covered by legal professional privilege by informing clients about this risk, then seeking clients’ consent to proceed. If clients are not comfortable with the risk, they can elect not to engage with the lawyer/social worker team. In some programs, clients who make this choice can continue to be assisted by the interdisciplinary program, however they work with a lawyer only. Other programs will not assist clients unless both the lawyer and social worker are involved. In situations where the dominant purpose of the conversation is for a client to see a lawyer for legal advice and the social worker sits in on the legal conversation, then everything that is said in that meeting is covered by legal privilege (and the social worker needs to mark their notes to reflect this).
There are problems with this state of affairs. Clients of community legal centres generally have complex circumstances and often seek legal help when they are in crisis situations. We know that these clients can find engaging with the legal process particularly challenging and can feel overwhelmed when seeking advice; indeed, this recognition underpins the rationale for interdisciplinary legal services. In this context, it is questionable whether clients are in a position to fully grasp the implications of agreeing that their information might be disclosed if they decide to engage with an interdisciplinary legal service.
We should also question whether clients should have to make this decision at all. Interdisciplinary legal programs offer unique and significant benefits for people, particularly those with complex life circumstances. At the same time, the fact that legal professional privilege applies to client-lawyer relationships is an essential protection of people’s rights; in fact, it has been recognised as an important human right. We should not be asking people to choose between accessing a service that will benefit them and maintaining their human rights.
How can we address this issue? We need clarification that interdisciplinary programs designed to enhance access to justice for vulnerable people are entirely covered by legal professional privilege. This would mean that whether a client speaks with a lawyer or a social worker or another social services professional (such as a financial counsellor, youth worker, or family violence advocate) as part of an interdisciplinary legal program, their information will be protected. Currently, the Centre for Innovative Justice is involved in discussions lead by the Federation of Community Legal Centres, and also involving Health Justice Australia and others, about how this might best be achieved. Given what we know about the benefits for clients of interdisciplinary legal practice, it is crucial to ensure this issue does not impede the growth of this important justice innovation.
Nareeda Lewers is Senior Adviser, Research and Advocacy, Centre for Innovative Justice, RMIT University.
- The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, [85]–[86].
- AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58, [10].