Opinion
Legal professional privilege is a crucial element in maintaining the rule of law
14th Mar 2019
The legal profession has roundly condemned the actions of Melbourne’s ‘Lawyer X’ Nicola Gobbo, who turned police informant and betrayed the trust of the clients she was meant to be acting for.
But a number of people have offered the counterview that these clients are notorious ‘Underbelly’ type criminals and Lawyer X did nothing wrong by helping police to bust them.
But the fact is that her actions constituted a massive breach of legal professional privilege. It is conduct that the High Court described as ‘reprehensible’ and it may well get her struck off the Bar roll. Legal professional privilege protects written, verbal and electronic communications between a client and their lawyer for the purpose of obtaining legal advice or in the course of legal proceedings.
The reason it is so important is it allows full and frank disclosure between a lawyer and their client without the fear that this information could be used against them. It is a fundamental common law principle that allows a lawyer to provide competent and independent legal advice. It also helps to redress the balance of power between an individual and the state. Legal professional privilege is a crucial element in maintaining the rule of law.
If you hire a lawyer, you want to be confident they will not disclose to a third party information given in confidence.
When something like the Lawyer X controversy erupts it can undermine the reputation of the whole profession.
Thankfully there is nothing to suggest such practices take place in SA. Our police commissioner recently confirmed that SA Police has not used lawyers as informants since ‘at least 2000’.
Lawyers are well aware of their ethical obligations, and people should feel secure in the knowledge that their lawyer will treat any information disclosed with the utmost privacy.
But there are some instances when legal professional privilege can be overridden. The most common is when a client threatens self-harm or harm to another and the lawyer believes there is immediate danger. Privilege will also be waived when the communication is used to facilitate a fraud or a joint criminal enterprise.
One must also be aware that a lawyer’s duty is to the court first and they cannot make misleading statements to the court in representing their client.
Overall, South Australia’s legal profession has been just as mortified by the actions of Lawyer X, Nicola Gobbo, as our eastern neighbours and the public should be comforted in knowing that we can be relied upon to uphold and maintain the rule of law in SA.
This is an edited version of an article originally published by The Advertiser. It has been republished with the author’s permission. The original article can be found here.
Amy Nikolovski practices in the areas of personal injury, workers compensation and general litigation. She is an active member of the Law Society of South Australia and is currently President, being an elected member since 2012. Amy has been recognised numerous times as a leading lawyer in her field in both South Australia and Nationally by Doyle’s Guide to Lawyers.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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