Stand down the investigators!
Yesterday we reported (thanks to reader Ann) about Mark Latham and that time he rang up the Victorian Legal Services Commissioner Michael McGarvie.
Centuries of the common law and development of the legal profession were distilled by Latham into a few hundred words. The finding of his research is that whatever Ms Gillard did; she did nothing wrong.
I was unsettled by Latham's incomplete and selective treatise on Legal Professional Privilege and I didn't want it to go unchallenged.
For completeness, here's Latham's stylised question and the hypothetical response from the Legal Services Commissioner (Victoria) Michael McGarvie - Latham's the writer:
In dealing with the various allegations against the Prime Minister in the Slater & Gordon matter, it is prudent to check the facts with the relevant legal and government authorities. Accordingly, I contacted the Legal Services Commissioner in Victoria, Michael McGarvie (the official who regulates lawyers and deals with ethical complaints against the legal profession) for comment on the obligations of lawyers in dealing with clients who may have broken the law.
While he would not reflect on the specifics of the Julia Gillard/Slater & Gordon matter, he was willing to answer the following hypothetical question: If a lawyer acts for a client and provides advice for the establishment of some kind of financial instrument but then years later believes that the client, in their use of the instrument, may have broken the law, such as in defrauding money, what are the lawyer’s obligations to report this matter to the police?
McGarvie answered: “The lawyer has a duty of confidentiality to the client, meaning that he or she is under no obligation to report the client to the police. The lawyer has a permanent obligation not to disclose material relating to a person for whom they have acted."
Latham's report of McGarvie's opinion is a breathtakingly incomplete treatise on the range of considerations confronting the ethical legal practitioner. His approach is analogous to a "Dial A Verdict" service, where you ring up a public servant, describe the "facts" and receive a binding judgement. Applying the Latham dictum to medicine you'd just ring up, pass on what the bloke at the fruit shop said about this bloke whose sister told a mate that she's a bit weary and instant diagnosis over the phone.
It's just not that simple. Mr McGarvie's statements aren't correct for all circumstances. If they were his prescription would be contrary to the interests of justice. This sentence, quoted by Latham, is clearly bunkum as a one-size-fits-all guiding principle, "The lawyer has a permanent obligation not to disclose material relating to a person for whom they have acted". While it's an over-simplification, if Mahommed Atta had disclosed his plans to fly planes into the World Trade Centre to a lawyer, how happy would we be with a legal system that precluded the lawyer from disclosing that insight to authorities?
Latham is a cartoon character, Michael McGarvie is an important bureaucrat and you and I are confused. The following papers might be useful reading for us all!
This scholarly work provides some Australian insights - Shrinking Scope of Legal Professional Privilege - Douglas Meagher QC
Download SHRINKING SCOPE OF LEGAL PROFESSIONAL PRIVILEGE (3)
Here are some of the excerpts from Mr Meagher's work that might challenge Mr McGarvie:
As early as 1856 the Courts have enunciated the
principles relating to the exception (of Legal Professional Privilege, or client confidentiality). In
Gartside v Outram (1856) 26 LJ Ch 113
Wood VC at p. 114 said:
"The true doctrine is that there is no confidence as to the
disclosure of iniquity. You cannot make
me the confidant of a crime or a fraud, and be entitled to close up lips upon
any secret which you have the audacity to disclose to me relating to any
fraudulent intention on your part: such a confidence cannot exist . ....
And this Australian and more recent contribution to our Common Law:
The existence of the exception to the privilege
was firmly established in Australia
following the obiter dictum in Varawa v
Howard Smith & Co (1910) 10 CLR 382. At page 385 Griffith CJ said:
"The rule was laid down very distinctly by Lord Halsbury LC in Bullivant v The Attorney General for Victoria:
think the broad propositions may be very simply stated: for the perfect administration of justice,
and for the protection of confidence which exists between a solicitor and his
client, it has been established as a principle of public policy that those
confidential communications shall not be subject to production. But to that, of course, this limitation has
been put, and justly put, that no Court can be called upon to protect
communications which are in themselves parts of a criminal or unlawful
The rule is very well illustrated in the case of R. v Cox & Railton in which the communication stated and put in
evidence was a communication made by a solicitor to his client for the purpose
of enabling him to carry out an unlawful enterprise."
And here is Douglas Meagher QC's ultimate finding of fact.
This says nothing about the duty to
report; but once the privilege is
removed, the shield vanishes and the ordinary duty cast on all citizens to
report a threatened crime applies to the lawyer as well.
The foregoing relates to a threatened crime - for which in the case of the AWU Scandal and the failure by Gillard and her partners at Slater and Gordon to report we can substitute the word "continuing". Gillard's failure to bring to the attention of authorities the existence of the AWU-WRA gave her boyfriend 8 months lead in selling the Fitzroy house and taking out money from various illicit accounts.
The Victorian Crimes Act codifies many of the provisions of the Common Law, the offence of misprision of a felony (the common law offence of failing as a citizen to report a serious crime) is not more in Victoria. However failing to report a serious crime in circumstances where you receive a benefit as a result of the failure to report is a serious crime. The threshold so far as the points of proof are concerned is quite low, any person who has information which might be of material assistance in securing a prosecution....
Crimes Act 1958 - SECT 326
Concealing offences for benefit
326. Concealing offences for benefit
(1) Where a person has committed a serious indictable offence, any other
person who, knowing or believing that the offence, or some other serious
indictable offence, has been committed and that he has information which might
be of material assistance in securing the prosecution or conviction of an
offender for it, accepts any benefit for not disclosing that information shall
be guilty of a summary offence and liable to level 8 imprisonment (1 year
There are many references online (and on this blog) to Legal Professional Privilege and the obligation of a lawyer. It's really common sense - do you want your justice system to give special immunities to crooks? Nor do I. Nor do most of us.
Finally this paper is a bottler. It's replete with real life experiences involving Powers of Attorney, conflicts of interest, crooked clients and the odd crooked lawyer like Gillard.
Here's the cover:
And it includes these prescient words from McHugh J, often quoted on this blog: