If you are considering making a disclosure, we recommend that you work through the following steps.
1. Ask yourself why you are disclosing the information
Identify who you are trying to assist:
- your client (e.g. by disclosing the contents of a medical report as part of proceedings)
- yourself (e.g. to obtain ethics advice or comply with a legislative obligation)
- a third party (e.g. to prevent serious imminent harm to them).
This will help you to determine which exception under rule 9.2 applies.
2. Be clear about who you are intending to disclose to
Disclosure must be limited to the recipient specified in the exception (if any), or to the person who is best placed to prevent the relevant offending or physical harm (Gino Dal Pont 2020 Lawyers’ Professional Responsibility, at [10.120]). Depending on the exception you intend to rely on, parties you could disclose to include:
- a law enforcement agency
- a health professional
- the person your client may imminently seriously harm.
You should decide who is the most appropriate recipient having regard to the urgency of the situation, the scope of any relevant consent from your client, and whether the recipient can achieve the purpose of disclosure.
How much information is appropriate to disclose will depend on the circumstances, but it should be limited to the information required to deal with the matter (e.g. your client’s identity, location, or intended actions).
As your duty of confidentiality limits disclosure to the extent necessary to achieve the purpose of the relevant exception, you cannot disclose your client’s information to the media or the public.
3. Consider if you can achieve the desired result without making a disclosure
You may be able to achieve the desired result without disclosing confidential information, for example by discouraging, and advising a client against, committing an offence or harm. You could also consider and discuss alternatives to disclosure that would mitigate a risk of harm or offending, such as referral to appropriate professional or community services.
4. Seek ethical advice and support
Any Victorian lawyer can contact the Law Institute of Victoria’s ethics helpline for high-quality free and confidential ethical assistance. Email ethics@liv.asn.au or call 03 9607 9336.
5. Talk with your client
If after taking the steps above you are still considering making a disclosure, you should discuss your intention with your client before disclosing if it is possible, safe and appropriate. This is part of your duty to act in your client’s best interest. You can discuss with your client any proposed disclosures to a third party, and attempt to obtain your client’s consent for that disclosure.
In circumstances where you believe that informing your client of your intention to disclose could result in a risk of harm to yourself or a third party, or is likely to prejudice an investigation, you should only inform them after that risk has been mitigated. If your client is threatening suicide or self-harm, encourage them to seek immediate support from a qualified professional (e.g. a psychologist, GP), or where appropriate approach a qualified professional yourself (see Disclosure to prevent imminent serious physical harm).
You should also inform your client after you make a disclosure (whether your client consented before the disclosure or not) and explain why you made the disclosure, when it becomes safe and practicable to do so. However, do not inform your client if the disclosure was compelled by law and you are prevented, or prohibited, from telling your client about the disclosure. For example, you must not tell your client any information about a suspicious matter report (SMR) you make or intend to make under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). This constitutes ‘tipping off’ and is a criminal offence.
If you make a disclosure to the police, you should not continue to act for your client or provide information to authorities outside the initial report. For more guidance, see our Regulatory Guideline – Lawyer conduct in providing information to police. It is important to understand that if you make a disclosure to police, you may become a witness in the event charges are laid against your client. Rule 27 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (the professional conduct rules) operates in that situation to prevent you from acting for the client, avoiding a conflict between the duty to advance your client’s interests and your duty to the court to give impartial evidence. Where possible, you should assist your client to access alternative legal representation.
Adapted from the NSW Bar Association’s ‘Guidance for NSW Barristers in the Wake of the Matter of Lawyer X’.
6. Document your actions
If you are considering making a disclosure under Rule 9.2 (including if you decide not to disclose), you should make a contemporaneous record of the relevant circumstances and how you came to your decision — including if you relied on an alternative to disclosure.
If you do decide to disclose confidential information, prepare a detailed written record of why you decided to make the disclosure, what information you disclosed, and to whom you made the disclosure, as soon as possible. Your file note should address:
1. an explanation of the nature of the confidential information (including why it was not also privileged information)
2. the source of the confidential information (e.g. a document, transcript, email, conversation, etc.)
3. why you made the disclosure, including:
- which exception you relied on
- the relevant case law or ethics advice you considered
- the factors you took into account when you made your decision
- how the recipient of the information will be able to achieve the intended outcome (e.g. if serious physical harm is threatened, how they could prevent the harm).
4. any alternatives to disclosure of the information that you considered
5. the circumstances of the disclosure, including:
- the date and time of the disclosure was made
- what was disclosed
- how the disclosure was made
- the person you made the disclosure to.
6. whether your client consented to the disclosure, or why it was not appropriate or practicable to obtain your client’s consent
7. whether you have informed the client of the disclosure and reasons for your decision.
Adapted from the commentary to rule 3.3-3 of the Law Society of Ontario’s Rules of Professional Conduct and guidance from the UK Solicitor’s Regulation Authority.
If the matter comes to our attention, as the regulator of the legal profession we will consider your file notes and other records against the advice provided in this guidance as part of our assessment of whether you have made a genuine attempt to reflect on and apply the exceptions.
Note on the Human Source Management Act 2023 (Vic)
The Royal Commission into the Management of Police Informants recommended establishing a legislative scheme for the registration, use and management of human sources, and this recommendation was implemented via the Human Source Management Act 2023.
Although the Act permits Victoria Police to register lawyers as human sources and use privileged information in specific circumstances (i.e. with the prior authorisation of the Supreme Court of Victoria), this does not change lawyers’ regulatory and professional obligations and duties.
The Act does not abrogate Victorian lawyers’ ethical, regulatory and professional obligations to maintain client confidentiality, other than in specific and confined circumstances set out in the exceptions to rule 9.
If you choose to inform on your clients to police, you are likely to do so in breach of these obligations, as well as your obligations to act in your clients' best interest, and to disclose or avoid any potential or actual conflict of interest.
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