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Lawyers face the challenge of balancing confidentiality with the increasing pressure to engage with the public through social media and news media. This article examines recent cases where lawyers breached their duty of confidentiality, offering lessons on how to navigate these complex situations while upholding professional obligations.
“The life of the law has not been logic; it has been experience.”– Oliver Wendell Holmes.
Although Holmes’ famous quote was talking about systems issues and application of the law, it highlights the very human nature of legal practice. Most lawyers join the profession to help clients, who are often facing significant personal or life events.
Consequently, lawyers get a window into some truly remarkable events and meet a wide range of interesting and diverse people. The temptation to share these experiences is human nature.
Expectations and pressures to communicate and engage with others are also more prevalent than ever before with the advent of social media and 24/7 online news media.
Most lawyers do enjoy sharing a good old ‘war story’. At other times, a client’s predicament may resonate with a lawyer and create a desire to speak out against an injustice. Real good can come from lawyers speaking publicly to highlight issues or share knowledge and information with colleagues and the community. In such cases, however, it is important that lawyers are aware of their confidentiality obligations and take precautions to avoid breaching these.
This article outlines the relevant obligations. It also highlights some examples of situations in which obligations were breached and some take-away lessons from these cases.
Lawyers owe a duty of confidence to clients. Confidentiality obligations are set out in rule 8 of the Lawyers and Conveyancers (Lawyers: Conduct and Client) Rules 2008 (‘Rules’). Exceptions to the obligations of confidentiality are found in rules 8.2 and 8.4.
The obligation is clear. A lawyer must keep confidential all information about their client acquired in the course of the relationship. It is important to note that the obligation covers information that may be widely known or public knowledge which will nevertheless be considered ‘confidential information’ in the context of professional obligations. A high-profile example of the implications of this constraint is the striking-off of Schapelle Corby’s lawyer for disclosing and commenting on the Corby family’s criminal convictions in a television interview.¹
For the purposes of this article, the most relevant exception is found in r 8.4(a) “A lawyer may disclose confidential information relating to the business or affairs of a client to a third party where the client expressly or impliedly authorises the disclosure (and where the information is confidential to more than 1 client, all clients have authorised the disclosure)”.
Recent and past cases in New Zealand also highlight confidentiality obligations and the risks of talking publicly about clients. As the cases reveal, speaking publicly can result in attendant breaches of other obligations depending on the individual circumstances (such as obligations of respect and courtesy or upholding the rule of law and facilitating the administration of justice).
In National Standards Committee 1 v Peters a lawyer was found guilty of recklessly breaching his duty of confidentiality to a client he represented as duty solicitor. This was in addition to a breach of a lawyer's obligations to uphold the rule of law and facilitate the administration of justice and to act in accordance with fiduciary obligations owed to clients.²
Mr Peters briefly represented the suspect arrested for the Christchurch Mosque attacks as duty solicitor. Following this, he gave two media interviews and shared his impressions of the client. He did not have instructions or authorisation from the client to do so.
The Tribunal said that in speaking about the matter at all, Mr Peters may have damaged the confidence of clients in lawyers generally and risked the reputation of the legal profession in the eyes of the public. The Tribunal formally censured Mr Peters and ordered him to pay costs to the Tribunal and reimburse the Law Society’s costs.
In censuring Mr Peters for misconduct, the Tribunal said “Members of the public must be able to speak with their lawyers with complete confidence and trust that their communications and presentation will remain private. Lawyers must be able to hold to their obligations of confidentiality even in stressful and difficult circumstances.”
In National Standard Committee 1 v Grey a lawyer accepted that she had breached a suppression order in place to protect the identity of an infant in a case of high public interest. Ms Grey had assumed the role of spokesperson for her client (with their consent) and gave two interviews in which she breached the orders. The first interview took place late at night and Ms Grey acknowledged that she was very tired at the time of the interview. The Tribunal accepted that the breaches were unintentional, but that “Ms Grey’s enthusiasm about the issue clouded her judgement, and that she did not consider carefully enough the prohibition of identifying particulars”. The Tribunal noted that any deliberate breach of a suppression order would be misconduct, but that Ms Grey’s conduct was not deliberate or reckless and was properly characterised as “mistake, nothing more”. The Tribunal found that Ms Grey had engaged in unsatisfactory conduct and that “she needed to take greater care than she did”.
The Tribunal also considered whether Ms Grey had an obligation to respond to the breaches of the suppression order by the interviewer. It recognised that lawyers should be permitted or even encouraged to speak publicly on important issues (with client instructions) and that holding them responsible for the breaches of others may dampen their involvement in media interviews and be an unreasonable imposition on their freedom of speech.
The Tribunal commented that it would urge any lawyer who found themselves participating in an interview where someone else was breaching a suppression order to end the interview. In responding in this way, it noted that the lawyer would be upholding the rule of law.
In Auckland Standards Committee 1 v Chambers a lawyer accepted that he had engaged in misconduct by discussing a criminal case in which he acted for the defendant 19 years prior with a news reporter. Mr Chambers made a number of uncomplimentary comments about his former client who was still serving a term of imprisonment at the time. The Tribunal held that Mr Chambers should have known that the duty to uphold client confidentiality continues indefinitely and cautioned the profession to keep in mind that the professional obligation to hold client information in strict confidence endures forever unless the client instructs otherwise. The Tribunal also noted that Mr Chambers’ comments fell short of the respect and courtesy he owed his former client. Mr Chambers was ordered to pay compensation to his former client and a fine. He was also ordered to pay costs.
In Auckland Standards Committee 3 v Woodroffe the Tribunal made a finding of low-level misconduct for a number of conduct issues including breaching client confidentiality during a radio broadcast and failing to treat a client with respect.
Mrs Woodroffe acted for a client whose case concerned family land interests overseas and a dispute relating to the use of that land. Mrs Woodroffe spoke on a community radio programme about the case and her client in derogatory terms. She partially disclosed details of her advice, instructions and the fact she proposed to sue her client. Although she did not name the client, people who knew of the case were able to recognise the references.
In determining liability, the Tribunal held that Mrs Woodroffe was reckless in broadcasting these details which were identifiable and thereby breached her duty of confidentiality. It concluded that the conduct amounted to a breach even if the identification of the client and their case was limited to a small circle and that the duty of confidentiality continues even after the lawyer-client matter is concluded. Moreover, by speaking so disrespectfully of her client, Mrs Woodroffe failed to treat him client with respect and courtesy.
The Tribunal rejected the submission that the lawyer had a right to say what she did because her freedom of expression is protected under the New Zealand Bill of Rights Act, and at para [35] noted “Although lawyers have the same rights of freedom of expression, generally, as others, those rights are circumscribed where required to comply with the Lawyers and Conveyancers Act 2006 and Rules made under it. This is part of the price lawyers pay for the considerable privileges of their role. Her rights under the New Zealand Bill of Rights Act do not protect Mrs Woodroffe from professional discipline for such breaches.” This decision is subject to an appeal.
The cases referred to in this article highlight that in appropriate situations lawyers can and should speak to the media or publicly, but they need to be careful they comply with their professional obligations while doing so. As a minimum, lawyers should: