Compelled by law

Rule 9.2.2 also allows you to disclose confidential or privileged information where you are compelled by law to do so. 

Some examples of legislation which compels disclosure include:

• section 15A(1) of the Financial Transactions Reports Act 1988 (Cth), which imposes a duty to report on client cash transactions of $10,000 or more
• section 327 of the Crimes Act 1958 (Vic), which creates an offence of failing to disclose a sexual offence committed against a child under 16 (where the information is not otherwise privileged) 
• section 466(2) of the Uniform Law, which requires you to comply with our requests for documents or information, such as in relation to trust money or complaint investigations, and which operates despite any privilege or other duty of confidence
• the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), under which lawyers who provide ‘designated services’ are ‘reporting entities’ who must lodge reports with AUSTRAC in relation to ‘threshold transactions’ and ‘suspicious matters’.

You also have certain duties to disclose matters to the Court or to your opponent – for example, under rules 19 (duty to the court), 20 (delinquent or guilty clients), and 29 (prosecutors’ duties) of the professional conduct rules. The Law Council of Australia’s commentary on the professional conduct rules provides further information on these rules.

General considerations

In relation to disclosures that are permitted (but not compelled) by law, you should:

• reflect on whether the circumstances warrant the disclosure
• consider whether there are any alternatives than disclosure that will achieve the intended purpose 
• comply strictly with the legislation permitting disclosure 
• remember that legislation permitting disclosure of confidential information does not extend to disclosing privileged information.

In relation to disclosures that are compelled by law (e.g. by reason of a warrant or subpoena), ensure that: 

• you understand any head of power compelling disclosure and its limitations. Many warrants, subpoenas, or other similar processes executed by police or integrity agencies that override confidentiality will not override privilege (Baker v Campbell (1983) 153 CLR 52)
• where information is privileged, you do not disclose the information, unless the relevant statute overrides the privilege (Gino Dal Pont 2020 Lawyers’ Professional Responsibility, at [10.80]).

You may be required to assert confidentiality or privilege over the information in response to such directions, unless your client instructs you otherwise (Re Stanhill Consolidated Ltd [1967] VR 749, 752). However, you must first consider whether privilege can properly be asserted, noting that it is a serious matter for a lawyer to deliberately assert privilege when they know it is unavailable. Similarly, we consider it a serious matter for a lawyer to claim information is confidential without foundation.

If you are served with a statutory notice to produce client documents, you should record the details of the request, check the notice to produce is valid, seek your client’s instructions and determine whether it is appropriate to assert confidentiality or privilege.

Ethical assistance

If you are considering making a disclosure under this section, you should first obtain advice from a trusted and high-quality source. The Law Institute of Victoria’s ethics helpline is freely available to all Victorian lawyers for confidential ethical support. 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 to seek advice on legal or ethical obligations
• Disclosure to avoid the probable commission of a serious criminal offence
• Disclosure to prevent imminent serious physical harm
• Disclosure to professional indemnity insurer
• Steps to take when considering making a disclosure