As a lawyer, you owe a duty of confidentiality to your clients not to disclose their confidential information. There are very limited exceptions to this general duty.
The duty of confidentiality is at the heart of the lawyer-client relationship. It is also fundamental to the effective operation of the justice system.
This guidance focuses on the exceptions to the duty of confidentiality. It has been designed to provide practical assistance to lawyers to help them assess when they can disclose confidential information. It also provides guidance on actions to be taken when a disclosure is made.
The duty of confidentiality is set out in rule 9 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (the professional conduct rules). This includes certain exceptions to the duty which permit the disclosure of confidential information that are important to understand.
A decision to disclose confidential information in accordance with an exception listed in rule 9 should not be taken lightly. Inappropriate disclosure may harm your client’s interests, or result in your client losing their legal privilege. It could also result in disciplinary action against you, civil action against your firm (e.g. a claim for damages) and/or breach of state or federal privacy laws (where they apply to your practice).
Background
In March 2024, the Law Council of Australia (LCA) published updated commentary on the professional conduct rules, including in relation to the duty of confidentiality and its exceptions.
This guidance, which is in line with recommendation 79 of the Royal Commission into the Management of Police Informants, is a practical reference tool for solicitors about the exceptions to the duty of confidentiality. It should be read together with the LCA’s commentary on rule 9.
This guidance:
- briefly describes the duty of confidentiality
- sets out exceptions to the duty
- outlines steps you should take when considering making a disclosure.
It also provides practical guidance on:
- factors that will help you assess whether a disclosure of confidential information is justified
- where to go for ethical advice if you are considering making a disclosure
- how to document a decision to disclose and other relevant considerations.
The duty of confidentiality
As a lawyer, you owe a duty of confidentiality to your clients not to disclose their confidential information. This duty is fundamental to the effective operation of the justice system. It enables the public to seek legal advice without fear of their information being shared with others and it assists lawyers to provide better representation by encouraging full and frank disclosure from their clients.
Rule 9.1 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (the professional conduct rules) provides that a solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person – except to other solicitors or employees of the law practice (Rule 9.1.1), or to counsel or other persons engaged by the law practice to deliver legal services to the client (Rule 9.1.2).
The Law Council of Australia’s commentary on the professional conduct rules (LCA commentary) explains what information is confidential to a client, and how the duty of confidentiality applies in various situations. You should refer to the LCA commentary if you are unsure whether information you hold is confidential to your client.
Exceptions to the duty
Rule 9.2 of the professional conduct rules sets out a limited number of exceptions to the general duty – outlined in Rule 9.1 – not to disclose confidential information. The LCA commentary notes that the exceptions fall into the following three categories:
- disclosure necessary for the proper functioning of the legal profession, and for the provision of the legal services and advice sought by the client
- disclosure compelled or permitted by law
- disclosure where the public interest in the protection of the community is greater than the public interest in maintaining client confidentiality.
The exceptions do not apply to confidential information that is also privileged, unless privilege is waived by the client or is abrogated by a legislative provision.
The following sections of this guidance set out factors to assist you to assess whether a disclosure of confidential information is justified in accordance with each exception in Rule 9.2.
- 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 avoid the probable commission of a serious criminal offence
- Disclosure to prevent imminent serious physical harm
- Disclosure to professional indemnity insurer
If you are considering making a disclosure of confidential information in accordance with any of these exceptions, it will generally be important for you seek confidential ethical advice. Each section ends with information on where to obtain appropriate and high-quality ethical advice and support in the relevant circumstances.
Steps to take when considering making a disclosure
If you are considering making a disclosure, we recommend that you work through the following steps.