Rule 9.2.4 allows (but does not compel) you to disclose confidential information for the sole purpose of avoiding the probable (i.e. likely) commission of a serious criminal offence.
The term ‘serious criminal offence’ is defined in the Law Council of Australia’s commentary on the professional conduct rules (LCA commentary) to mean an indictable offence against a law of the Commonwealth, a State, or a Territory (whether or not the offence may be dealt with summarily) or an offence against a law of a foreign country that would be an indictable offence if committed in Australia (whether or not the offence could be dealt with summarily if committed in Australia).
You cannot disclose information under this exception if it is covered by privilege, as privilege can only be waived by your client (Spalding v Radio Canberra Pty Ltd [2009] ACTSC 26). However, if the client is using their contact with you or your duty of confidentiality to facilitate criminal action, this is not covered by privilege (Evidence Act 2008 (Vic) s 125(1)(a); Gino Dal Pont 2020 Lawyers’ Professional Responsibility, at [11.55]).
General considerations
If you are considering making a disclosure under this exception, you should first consider whether the information you have is sufficiently detailed or compelling enough for you to reasonably form the view that a criminal offence that is a ‘serious criminal offence’ is likely to occur, and that disclosure would avoid the offence being committed. The following questions, adapted from the Law Society of Saskatchewan’s Code of Professional Conduct, can help you answer this question:
- what is the nature of the apprehended criminal offence? Would it constitute an indictable offence?
- are there reasonable grounds for believing that the serious criminal offence will likely be carried out? What are they?
- will the confidential information, if disclosed, be likely to prevent the probable offence? Why?
Ethical assistance
As noted in the LCA commentary, the decision about whether to make a disclosure under this exception involves significant professional and moral judgment, and lawyers faced with this situation – which involves balancing their duty of confidentiality to their client and the public interest in protecting members of society from harm – should seek ethical advice.
We strongly encourage lawyers facing this situation to contact the Law Institute of Victoria’s ethics helpline, which is freely available to all Victorian lawyers seeking confidential ethical assistance. Email ethics@liv.asn.au or call 03 9607 9336.
Related guidance
- Confidentiality and its exceptions
- Disclosure where there is express or implied consent
- Disclosure that is permitted or compelled by law
- Disclosure to seek advice on legal or ethical obligations
- Disclosure to prevent imminent serious physical harm
- Disclosure to professional indemnity insurer
- Steps to take when considering making a disclosure