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NSW lawyer admits to breaching client confidentiality
In what his counsel has insisted were “unusual circumstances”, a lawyer admitted to the NSW Civil and Administrative Tribunal that he breached client confidentiality.
Naomi Neilson
An NSW lawyer will face a finding of professional misconduct for his part in breaching client confidentiality six months into a Supreme Court trial. He told the NSW Civil and Administrative Tribunal (NCAT) on Monday, 22 February that the matter was “very complicated” but that he accepted his wrongdoing and has taken steps to improve.
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In submissions, the Council of the Law Society of NSW provided emails in which the lawyer had been directly corresponding with the opposing client without copying their solicitor in. In another instance, he sent a separate letter to his own client and copied only the opposing client in, prompting their solicitor to request to be involved.
NCAT was most concerned with a conversation that took place six months into a Supreme Court trial in which the lawyer talked to the opposing side about information that may have been relevant to the hearing. His counsel told NCAT that nothing came out of this conversation that could have influenced the trial.
The counsel said that the conversation was “open” and that the opposing side agreed that they did not learn anything “they didn’t already know”. He also said that compared to other breaches of client confidentiality, this was not as severe and that the lawyer had contacted the opposing solicitor and informed him of the fault.
“He admitted that he breached confidentiality – that is something important because right from the get-go, he had acknowledged what he did and in those circumstances, he rang the other solicitor to disclose it to him. It’s unusual to have a practitioner [do] the right thing by contacting the solicitor to say that he had discussed something with the opposing client,” the counsel told NCAT on the lawyers’ behalf.
In evidence, the lawyer said that he had been given instructions from a “whole range of people” and that there was a lot of “open communication”, which made this particular case particularly complicated for him.
“I wasn’t aware or wasn’t in my mind that I had breached client confidentiality, but I see now that [I did],” he told NCAT. “I’m really sorry I’m in this situation. I have taken steps in my firm to make sure that this does not happen again.”
The Law Society is seeking a reprimand, a substantial fine, an order for further education and to pay their costs. NCAT has reserved its reasons.
More to come.
AN: This article will be updated with the lawyer’s name, the penalty and more information about the judgement, pending NCAT’s decision.
