Client legal privilege “must not be abrogated in any circumstance”
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The Law Council of Australia is deeply concerned that a legal counsel has acted as a police informer and said that the revelations show the need for property resourced law enforcement oversight bodies.
The disclosures that a lawyer acted as a police informer shows a clear breach of legal professional rules, said Morry Bailes, Law Council of Australia president.
“A lawyer purporting to act as counsel for the convicted person, while also covertly informing against them, is a fundamental breach of a lawyer's duties to the court. As a result, and as noted by the High Court, the prosecution of each convicted person was corrupted in a manner which debased fundamental premises of the criminal justice system,” he said. “Client legal privilege is a fundamental protection and pillar of the Australian legal system. It ensures full and frank discussions between legal advisers and their clients. This promotes the administration of justice and encourages compliance with the law. It must not be abrogated in any circumstance.”
It has been revealed that a former defence lawyer turned on clients to provide incriminating information at the height of the Melbourne gangland wars between 2005 and 2009. The woman, known as “Lawyer X” and “Informer 3838”, is now unable to practice law, but was paid almost $2.9m by Victoria Police.
“Incursions against privilege have a deleterious impact on the lawyer-client relationship, by impairing the trust and confidence a client would otherwise have. A client should know their legal adviser will not be forced to disclose the information they provide. This confidence is necessary for them to develop a full understanding of their rights and responsibilities under Australia’s complex and ever-changing system of laws,” Bailes said. “The rationale for legal professional privilege is to enhance the administration of justice and the proper conduct of litigation by promoting free disclosure between clients and lawyers. It also enables lawyers to give proper advice and representation to their client.
“The High Court case also highlights the need for strong and properly resourced oversight bodies to supervise the activities of law enforcement. Police also need to be educated to ensure they do not seek to interfere with legal professional privilege,” Bailes said.
Victorian Premier Daniel Andrews has announced a royal commission into the recruitment and management of police informants. The commission is expected to start early next year and conclude by the end of the year.
